Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190 Hearing dates: 2 July 2018 Date of orders: 31 August 2018 Decision date: 31 August 2018 Before: Simpson AJA at [1] Schmidt J at [25] Button J at [150] Decision: (1) Leave to appeal granted to the applicants;

(2) Appeals upheld;

(3) Sentences imposed by Blackmore DCJ upon Ms Quintero, Ms Carvajal and Ms Salazar set aside;

(4) The applicants are resentenced as follows:

(a) Ms Quintero – sentenced to a non-parole period of 4 years imprisonment commencing on 17 September 2015, ending on 16 September 2019, with a balance of term of 1 year, 3 months expiring on 16 December 2020. Her release to parole on 16 September 2019 is recommended.

(b) Ms Carvajal – sentenced to a non-parole period of 4 years imprisonment commencing on 17 September 2015, ending on 16 September 2019, with a balance of term of 1 year, 3 months expiring on 16 December 2020. Her release to parole on 16 September 2019 is recommended.

(c) Ms Salazar – sentenced to a non-parole period of 4 years, 1 month imprisonment commencing on 17 September 2015, ending on 16 October 2019, with a balance of term of 1 year, 4 months expiring on 16 February 2021. Her release to parole on 16 October 2019 is recommended. Catchwords: CRIMINAL LAW – appeal – appeals against sentence – four co-offenders – each applicant convicted of four offences of aggravated break, enter and steal contrary to s 112(2) Crimes Act 1900 (NSW) –offences committed as part of joint criminal enterprise-character-absence of criminal record in Australia-– whether sentencing judge erred by holding applicants were disentitled to the benefit of good character – whether sentencing judge erred by failing to take into account one applicant's background of childhood deprivation – whether sentencing judge erred by failing to take into account applicant's role in the offences relevant to moral culpability – whether sentencing judge erred by finding that, despite having no criminal record, no additional leniency could be afforded given nature of offences – whether effect of delay taken into account when fixing non-parole period – assessment of subjective case – whether failure to take into account subjective features – whether special circumstances – whether one applicant has justifiable sense of grievance given sentence imposed on co-offender – whether sentence manifestly excessive – leave to appeal granted – appeals upheld – applicants resentenced Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Road Transport Act 2013 (NSW) Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Bidgood v R [2016] NSWCCA 138 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Dinsdale v The Queen (2000) 202 CLR 321;[2000] HCA 54 HJ v R [2014] NSWCCA 21 KR v R [2012] NSWCCA 32 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lowe v The Queen (1984) 154 CLR 606; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 PG v R [2017] NSWCCA 179 Power v The Queen (1974) 131 CLR 623 R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186 R v Chu (Court of Criminal Appeal (NSW), 16 October 1998, unrep) R v Edwards (1996) 90 A Crim R 510 R v Faneite (Court of Criminal Appeal (NSW), 1 May 1998, unrep) R v Huang (2000) 113 A Crim R 386; [2000] NSWCCA 238 R v JW (2011) NSWLR 3; [2010] NSWCCA 49 R v Levi (unreported, NSWCCA 15 May 1997) R v MJB [2014] NSWCCA 195 R v Sugahara and Watanabe (Court of Criminal Appeal (NSW), 16 October 1998, unrep) Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 Trindall v R [2013] NSWCCA 229 Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 Category: Principal judgment Parties: Mitzi Karoly Quintero Monica Yulieth Reinoso Carvajal Viridiania Guiterrz Salazar Regina Representation: Counsel: R J Wilson (Quintero) A Webb (Carvajal) J Trevallion(Salazar) H Roberts (Crown)