Diaz v R [2013] NSWCCA 277

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Diaz v R [2013] NSWCCA 277 Hearing dates: 14 August 2013 Decision date: 12 November 2013 Before: Macfarlan JA at [1] Adams J at [2] Button J at [3] Decision: (1) Leave to appeal granted. (2) Appeal allowed in part. (3) Sentence with regard to count one on the earlier indictment of 21 November 2005 quashed. (4) Sentences with regard to counts one, two and four on the indictment of 6 June 2007 quashed. (5) With regard to count one on the earlier indictment of 21 November 2005, the applicant is sentenced to a fixed term of imprisonment for 1 month. The sentence is to commence on 31 January 2005 and expire on 28 February 2005. (6) With regard to count one on the indictment of 6 June 2007, the applicant is sentenced to a fixed term of imprisonment for 1 month. The sentence is to commence on 31 January 2005 and expire on 28 February 2005. (7) With regard to count two on the indictment of 6 June 2007, the applicant is sentenced to a fixed term of imprisonment for 3 months. The sentence is to commence on 31 January 2005 and expire 30 April 2005. (8) With regard to count four on the indictment of 6 June 2007, the applicant is sentenced to a fixed term of imprisonment for 1 month. The sentence is to commence on 31 January 2005 and expire on 28 February 2005. (9) The first date upon which the applicant will be eligible for parole is 28 February 2014. (10) Appeal otherwise dismissed. Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - application well out of time - identification of "Muldrock error" - no error in giving no discount for pleas of guilty - no utilitarian benefit from pleas - sentences not manifestly excessive - leave to appeal granted - appeal dismissed Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Cases Cited: Butler v R [2012] NSWCCA 23 Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Ngo v R [2013] NSWCCA 142 R v Koloamatangi [2011] NSWCCA 288 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Yang v R [2012] NSWCCA 49 ZZ v R [2013] NSWCCA 83 Texts Cited: R A Hulme J, "After Muldrock  sentencing for standard non-parole period offences in NSW" (2012) 24(10) Judicial Officers' Bulletin 81 Category: Principal judgment Parties: Rodrigo Phillip Diaz (applicant) Regina (respondent) Representation: Counsel: I McLachlan (applicant) V Lydiard (respondent) Solicitors: Legal Aid NSW (applicant) Solicitor for Public Prosecutions (respondent) File Number(s): 2005/14293 Decision under appeal Jurisdiction: 9101 Date of Decision: 2008-10-20 00:00:00 Before: Bennett SC DCJ File Number(s): 05/11/0757