Citation: Diaz v R [2013] NSWCCA 277
Court: NSW Court of Criminal Appeal
Date: 12 November 2013
Judge(s): Macfarlan JA, Adams J, Button J (unanimous)
Background
The applicant was sentenced in the District Court at Parramatta in October 2008 for 14 offences arising from two extended episodes of serious violence against a former intimate partner. The offences, committed in January and February 2005 across two Sydney suburbs, included sexual violence, detention, and property damage. The sentencing judge imposed a total head sentence of 12 years 2 months imprisonment, with a non-parole period of 9 years 1 month.
The prosecution history was unusually protracted. The applicant faced five separate trials, pleading guilty to two counts at the first trial in November 2005 and being found guilty by jury of the remaining counts across the fourth and fifth trials. The guilty pleas were entered in circumstances where, at the final trial, the Crown led evidence of the same underlying conduct before the jury in any event.
The application for leave to appeal was filed more than four and a half years after sentence was imposed, which the Crown argued should be a reason to refuse leave altogether.
Legal Issues
- Whether leave to appeal should be granted despite the application being filed well out of time
- Whether the sentencing judge committed a "Muldrock error" by treating the standard non-parole period as a statutory benchmark rather than a guidepost (only some counts attracted a standard non-parole period)
- Whether the sentencing judge erred in declining to give any discount for the guilty pleas
- Whether the sentences were manifestly excessive, individually or in total
Decision
Leave and the delay: The Court granted leave despite the significant delay, accepting that the "Muldrock error" argument raised a matter of principle warranting consideration. However, the Court made clear that the delay was a weighty factor and that any error would need to produce a materially different outcome before resentencing would be warranted.
Muldrock error: The Court accepted that a Muldrock error had occurred. In Muldrock v The Queen (2011) 244 CLR 120, the High Court held that standard non-parole periods are guideposts, not statutory starting points, and that placing undue weight on them as benchmarks constitutes legal error. The Court found the sentencing judge had applied the standard non-parole period in a way that was inconsistent with that principle. Ground one was made out.
No discount for guilty pleas: The Court upheld the sentencing judge's decision to give no discount for the two early guilty pleas. The discount for a guilty plea is primarily justified by the utilitarian benefit it provides to the justice system, particularly by sparing witnesses from giving evidence and by saving court resources. Here, the underlying facts were placed before the jury in the final trial regardless of the pleas. The Court found there was no utilitarian benefit, and therefore no discount was warranted.
Manifest excess and resentencing: Despite identifying the Muldrock error, the Court was not persuaded that any lesser sentence was warranted in law. Button J characterised the offending as exceptional in its cruelty and brutality. The applicant's drug use was noted as likely exacerbating his conduct, but given established authority, it could not operate powerfully in mitigation. The Court resentenced on four counts where the error was operative, but the revised sentences on those counts produced no change to the overall head sentence or non-parole period.
Orders Made
- Leave to appeal granted
- Appeal allowed in part
- Sentence on count one of the earlier indictment (21 November 2005) quashed; replaced with a fixed term of 1 month (31 January 2005 to 28 February 2005)
- Sentences on counts one, two and four of the indictment of 6 June 2007 quashed; replaced with fixed terms of 1 month, 3 months, and 1 month respectively (all commencing 31 January 2005)
- First date of parole eligibility confirmed as 28 February 2014
- Appeal otherwise dismissed
Key Takeaways
- A Muldrock error does not automatically result in a lesser sentence. The Court of Criminal Appeal confirmed that even where a sentencing judge has misapplied the standard non-parole period as a benchmark, resentencing will only produce a different outcome if the overall sentence was not otherwise appropriate.
- No utilitarian benefit from a guilty plea means no discount. Where the facts underlying a plea are placed before a jury at a later trial in any event, the sentencing court is entitled to find the plea provided no practical benefit to the justice system and to withhold any discount on that basis.
- Delay in filing a sentence appeal is a significant hurdle. The Court treated the four-and-a-half-year delay seriously, and the judgment suggests that leave will only be granted in such circumstances where a genuine point of principle is raised, not merely to re-agitate the quantum of a sentence.
- Drug use as a mitigating factor has limited weight where violent offending is involved. Consistent with ZZ v R [2013] NSWCCA 83, the Court confirmed that self-induced intoxication cannot operate as powerful mitigation in cases involving serious violence.
- A long and complex sentencing history does not reduce the severity of the applicable penalty. The exceptional nature of the underlying offending, including multiple discrete episodes of extreme violence against an intimate partner, was the dominant consideration at sentence and on appeal.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 59, 86(2)(b), 195(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- ZZ v R [2013] NSWCCA 83
- Butler v R [2012] NSWCCA 23
- Yang v R [2012] NSWCCA 49
- Ngo v R [2013] NSWCCA 142
- R v Koloamatangi [2011] NSWCCA 288