Diaz v R [2019] NSWCCA 216

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Diaz v R [2019] NSWCCA 216 Hearing dates: 5 July 2019 Decision date: 13 September 2019 Before: Gleeson JA at [1] Button J at [4] Lonergan J at [94] Decision: (1) Leave to appeal against sentence granted. (2) Appeal upheld. (3) The sentence imposed by M L Williams SC DCJ on 27 January 2017 is quashed. (4) The applicant is sentenced to a head sentence of 9 years commencing on 6 November 2015 and expiring on 5 November 2024, with a non-parole period of 4 years 6 months, expiring on 5 May 2020. Catchwords: CRIME – APPEALS – appeal against sentence – application for leave to appeal – attempting to import a commercial quantity of a border controlled drug, contrary to the Criminal Code Act 1995 (Cth) ss 11.1(1) and 307.1(1)) – self-represented applicant – proposed grounds devoid of merit – no assertion of Xiao error in grounds – consideration of Xiao error – Xiao error established – sentencing judge provided 25% discount for facilitation of justice – whether applicant to be resentenced – applicant resentenced afresh – 25% discount for utilitarian value of plea applied Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6(3) Criminal Code Act 1995 (Cth), ss 11.1(1) and 307.1(1) Cases Cited: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 DPP (Cth) v Masange; DPP (Cth) v Kachunga [2017] VSCA 204 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 Newman (a pseudonym) v R [2019] NSWCCA 157 Obiekwe v R [2018] NSWCCA 55 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 Category: Principal judgment Parties: Luis Diaz (Applicant) Regina (Respondent) Representation: Counsel: H Ginges (Commonwealth DPP) (Respondent) Applicant (self-represented)