Moreno v R; Gomez v R [2023] NSWCCA 149

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Moreno v R; Gomez v R [2023] NSWCCA 149 Hearing dates: 12 May 2023 Date of orders: 21 June 2023 Decision date: 21 June 2023 Before: Ward P at [1] Beech-Jones CJ at CL at [2] Price J at [69] Decision: In the appeal by Mr Moreno: (1) Leave to appeal be granted. (2) The appeal be dismissed. In the appeal by Mr Gomez: (1) Leave to appeal be granted. (2) The appeal be dismissed. Catchwords: CRIME — appeals — appeals against sentence — drug offences — supply of large commercial quantity of prohibited drug — where offenders represented to undercover operatives they would supply 15 kilograms of cocaine – offenders in fact supplied sugar and wood disguised as cocaine but deemed to be a prohibited drug — objective seriousness — whether sentencing judge erred in assessing offending as objectively serious — objective seriousness is not lessened by proposed supply to undercover operatives – offenders' criminality not analogous to fraud or conspiracy to defraud — COVID-19 — whether sentencing judge failed to take into account more onerous prison conditions beyond visitation restrictions — sentencing judge's consideration not limited to visitation restrictions — manifest excess — Mr Moreno's sentence not manifestly excess having regard to offending and the maximum sentence and standard non-parole period of offence — leave to appeal granted — appeals dismissed Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Summary Offences Act 1988 (NSW) Cases Cited: Aoun v R [2011] NSWCCA 284 Chemaissem v R [2021] NSWCCA 66 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 House v The King (1936) 55 CLR 499; [1936] HCA 40 Ibrahim v R [2022] NSWCCA 161; (2022) 371 FLR 30 Kada v The Queen [2017] VSCA 339; (2017) 270 A Crim R 197 Khoury v R [2020] NSWCCA 190; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Mulato v R [2006] NSWCCA 282 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 R v Dendic (1987) 34 A Crim R 40 R v Kalpaxis [2001] NSWCCA 119; (2001) 122 A Crim R 320 R v Kijurina [2017] NSWCCA 117 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 R v Yaghi [2002] NSWCCA 396; (2002) 133 A Crim R 490 SF v R [2022] NSWCCA 216 Category: Principal judgment Parties: Jhonattan Giraldo Moreno (Applicant) Jose Moreno Gomez (Applicant) Crown (Respondent) Representation: Counsel: Ms A Francis (Mr Moreno) Mr E Kerkyasharian (Mr Gomez) Ms S Lind (Respondent)