Diaz v R

Case [2021] NZCA 426


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

  1. 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.

  2. 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…

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Details
AGLC
Diaz v R [2021] NZCA 426
Case
[2021] NZCA 426
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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