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Court of Criminal Appeal 4 July 2008

DIEGUEZ Jason v R

[2008] NSWCCA 147

Drugs
SENTENCE NO REASONABLE EXPLANATION FOR DELAY LEAVE REFUSED.

Citation: DIEGUEZ Jason v R [2008] NSWCCA 147
Court: NSW Court of Criminal Appeal
Date: 4 July 2008
Judge(s): Bell JA, Grove J, Latham J (Latham J delivered the principal judgment; Bell JA and Grove J agreed)

Background

The applicant was convicted after trial in the District Court on one count of supply of a prohibited drug (heroin). The sentencing judge, a very senior District Court judge, imposed a non-parole period of four years with an additional term of two and a half years.

The offence arose from a late-night encounter at a Casula service station in January 2006, when plainclothes police found the applicant in a parked vehicle alongside another person. A search uncovered a small quantity of heroin the applicant admitted was his, and a bag in the footwell containing approximately 69.2 grams of heroin at 13.5% purity. The applicant's defence at trial was that he had no knowledge of that bag; the jury rejected that account.

The applicant sought leave to appeal against sentence, arguing it was manifestly excessive. The application was filed significantly out of time, and no satisfactory explanation was provided for the delay.

  • Whether the application for leave to appeal, filed well outside the relevant time limit without adequate explanation, should nonetheless be entertained
  • Whether the sentencing judge improperly elevated drug quantity as the chief or dominant sentencing factor, contrary to the principles in Wong v R and Markarian v R
  • Whether the finding of "substantial involvement in drug trafficking" was inconsistent with a separate finding that the offence was "an isolated aberration"
  • Whether insufficient weight was given to the applicant's subjective circumstances (including lack of prior record, employment, family ties, and drug dependency)
  • Whether, taking all factors together, the sentence was manifestly excessive

Decision

The Court identified a significant procedural hurdle at the outset. A Notice of Intention to Appeal was filed in April 2007 and expired in October 2007. By late August 2007, transcripts had been provided and senior counsel had been briefed. Yet no extension was sought, and the formal appeal grounds were not filed until April 2008. No explanation was offered for either delay. The Crown did not claim prejudice, but the Court noted that the broader interests of justice are not served by tardiness of that order.

On the substance of the sentencing grounds, the Court found that the judge had not singled out drug weight as the "chief factor." Rather, quantity was one consideration among several that led the judge to conclude the applicant was substantially involved in drug trafficking. The Court distinguished the High Court's reasoning in Wong and Markarian, which criticised rigid grid-based sentencing hierarchies tied solely to quantity, finding nothing in the remarks on sentence approaching that kind of error.

The Court addressed the apparent tension between the "substantial involvement in drug trafficking" finding and the characterisation of the offence as an isolated aberration. Drawing on a line of authority from R v Gip; R v Ly, it accepted that the word "trafficking" in this context referred to involvement in a supply enterprise rather than repeated offending by the applicant personally. The two findings were not necessarily inconsistent.

On the question of manifest excess, the Court observed that while the sentence sat at the upper end of the Judicial Commission's statistics for this type of offence, those statistics do not of themselves demonstrate error. The sentencing range extends to the statutory maximum of 15 years, and statistics provide no detail about the individual cases they reflect. In all the circumstances, the Court was not persuaded the sentence was plainly unjust or unreasonable, and refused leave to appeal.

Orders Made

  • Leave to appeal refused

Key Takeaways

  • A substantial, unexplained delay in filing an application for leave to appeal weighs against the grant of leave, even where the Crown identifies no specific prejudice.
  • The principles in Wong v R and Markarian v R prohibit sentencing by rigid drug-quantity grids, but they do not prevent a sentencing court from treating quantity as a material and relevant factor alongside other considerations.
  • In refusing the appeal, the Court of Criminal Appeal confirmed that a finding of "substantial involvement in drug trafficking" does not necessarily connote repeated offending by the applicant: it may refer to the nature and scale of the supply enterprise itself.
  • Statistics published by the Judicial Commission can inform reflection on a sentence, but a result at the upper end of the recorded range does not, without more, establish error. The range extends to the statutory maximum set by Parliament.
  • No error was established in the sentencing judge's treatment of subjective factors. Whether those factors received sufficient weight is assessed as part of the overall question of whether the sentence is plainly unjust, not as a separate free-standing ground.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW)
- Crimes Act 1914 (Cth), s 16A(2)

Cases
- Wong v R (2001) 207 CLR 584
- Markarian v R (2005) 228 CLR 357
- Dinsdale v The Queen (2000) 202 CLR 321
- R v Stanbouli (2003) 141 A Crim R 531; [2003] NSWCCA 355
- R v Gip; R v Ly [2006] NSWCCA 115
- Ma & Pham v R [2007] NSWCCA 240
- R v Bardo, CCA, 14 July 1992
- R v Ozer, CCA, 9 November 1993
- R v Depalo [2003] NSWCCA 80
- R v Keyte, CCA, 26 March 1986
- R v Rajapaski [2001] NSWCCA 126
- R v Vu [2003] NSWCCA 316
- Lu v R [2007] NSWCCA 74
- Derrington v R [2008] NSWCCA 94