Diaz v R

Case [2021] NZCA 426 1 September 2021

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA139/2021
[2021] NZCA 426

BETWEEN	ANTONIO PEDRO DIAZ Appellant
AND	THE QUEEN Respondent

Hearing:	27 July 2021
Court:	Goddard, Thomas and Wylie JJ
Counsel:	D A Kemp and E P Priest for Appellant D B Stevens and H A M Watts for Respondent
Judgment:	1 September 2021 at 10.00 am

JUDGMENT OF THE COURT

A The appeal is allowed.
BThe sentence of three years’ imprisonment imposed by the District Court is set aside.
CA sentence of 5 months and 15 days’ home detention is substituted on the charge of causing grievous bodily harm with intent.
DThe sentence of home detention is to be served at 30 Tamworth Close, Manurewa, Auckland. The sentence is subject to the standard conditions set out in s 80C(2) of the Sentencing Act 2002 and the following special conditions imposed under s 80D:
(a)Mr Diaz must travel directly from prison to the home detention address and must remain at that address to be met by a Field Officer.
(b)Mr Diaz must not consume or possess alcohol or illicit drugs for the duration of the sentence.
(c)Mr Diaz must undertake and complete appropriate treatment/counselling to the satisfaction of the Probation Officer and treatment provider. The details of the treatment or counselling are to be determined by the Probation Officer.
(d)Mr Diaz must undertake and complete an appropriate departmental, cultural, or other programme, to the satisfaction of the Probation Officer and programme facilitator, if a suitable programme is available. The details of the programme and suitability are to be determined by the Probation Officer.
(e)Mr Diaz must not contact or associate with the victim or co‑offenders, either directly or indirectly, without the prior written approval of a Probation Officer.

EOn the charge of injuring with intent to injure, Mr Diaz is convicted and discharged.

____________________________________________________________________

REASONS

Thomas and Wylie J [1]

Goddard J [54]

REASONS OF THOMAS AND WYLIE JJ

(Given by Wylie J)

Table of Contents

Para No

Introduction

Factual background

Causing grievous bodily harm with intent
Injuring with intent

The sentencing decision

The appeal

Submissions

Implications of amendments to Sentencing Act 2002 in relation to 17-year-old offenders

Analysis

Starting point
The uplift for the injuring charge
Discounts for personal circumstances
End sentence for grievous bodily harm charge
Home detention
Sentence for injuring charge

Introduction

On 25 February 2021, the appellant, Antonio Diaz, was sentenced to three years’ imprisonment by Judge Wharepouri in the District Court at Manukau on the following charges:[1]
(a)causing grievous bodily harm with intent to cause grievous bodily harm;[2] and
(b)injuring with intent to injure.[3]
[1]R v Diaz [2021] NZDC 3593 [Sentencing decision].
[2]Crimes Act 1961, ss 66 and 188(1) — maximum penalty 14 years’ imprisonment.
[3]Section 189(2) — maximum penalty five years’ imprisonment.
Mr Diaz was found guilty of causing grievous bodily harm with intent at trial together with two co-defendants — his uncle, Juan Diaz, and his brother, Peter Diaz. The charge of injuring with intent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Diaz v R

Details

AGLC: Diaz v R [2021] NZCA 426
Case: [2021] NZCA 426
Decision Date: 1 September 2021 at 10.00 am

CaseChat Overview and Summary

Antonio Diaz appeals against his sentence for causing grievous bodily harm with intent and injuring with intent. He argues that the sentence of three years' imprisonment imposed by the District Court was manifestly excessive. The Court of Appeal considers the appeal and finds that the sentence imposed by the District Court was indeed excessive and allows the appeal. The Court substitutes a sentence of 5 months and 15 days' home detention for the charge of causing grievous bodily harm with intent. The Court also finds that no further sentence should be imposed in respect of the injuring charge and orders that Diaz be convicted and discharged. The Court imposes standard and special conditions on the sentence of home detention.

Orders