Diaz v R

Court of Criminal Appeal (NSW)|2013-08-14|Before: Macfarlan JA, Adams J, Button J, Hulme J, MacFarlan JA

Judgment 1MACFARLAN JA: I agree with Button J. 2ADAMS J: I agree with Button J. 3BUTTON J: On 20 October 2008, his Honour Judge Bennett SC sentenced Rodrigo Philip Diaz ("the applicant") in the District Court of New South Wales at Parramatta for 14 offences. I shall recount the details of them shortly, but in summary they were offences of violence, including sexual violence, detention, and damage to property. The victim with regard to all offences was a woman with whom the applicant had been in an intimate relationship. His Honour imposed a total head sentence of imprisonment for 12 years 2 months, with a total non-parole period of 9 years 1 month. The applicant seeks leave to appeal against those sentences. 4It is immediately noteworthy that the sentences were imposed over four and a half years before the hearing of the application for leave to appeal. The Crown submitted with some force that leave to appeal out of time should be refused. I shall discuss that issue later in my judgment.

Overview of offences and objective aspects 13In summary, the applicant subjected the victim to two extended episodes of criminality that are remarkable for their brutality and viciousness, even by the standards of the matters that come before this Court. 14The applicant and the victim had met in a shopping centre in which they were both employed in September 2004. They became friendly and then romantically involved. At first the applicant treated her tenderly, and the relationship progressed to the point of discussions of marriage and children. They maintained separate living arrangements, the applicant in an apartment in Glebe, and the victim in her own apartment in Randwick. 15In early 2005, however, the atmosphere changed. The applicant began to express jealousy about past intimate relationships of the victim. He became suspicious and invaded her privacy. Arguments ensued, and the relationship became stormy. 16On 15 January 2005, the applicant and the victim had spent the night together at her apartment in Randwick. Whilst she was away the next day, the applicant looked through her photo albums and found pictures of her with other men. Upon her return he verbally abused her, including referring to her as a "slut". Shortly after that he settled down, apologised, and acknowledged to the victim that he had an "anger problem". 17During the following week, things between them were unsettled. The applicant accused the victim of seeing other men behind his back. Again, he apologised. It is not clear whether during that week he attended a counsellor with regard to his emotional issues. 18On 21 January 2005, the flatmate of the victim was away. The applicant and the victim were alone in her apartment in Randwick. They enjoyed dinner and a drink on the balcony overlooking the swimming pool that was part of the apartment complex. The mood soured when the victim found the applicant manipulating her mobile phone in order to see the details of calls that had been made and received. As a result of the victim confronting the applicant about his behaviour, he threw her telephone into the swimming pool, and cut up the SIM card. 19That conduct constitutes the earlier count 1 (to which the applicant pleaded guilty). That was an offence of malicious damage, brought pursuant to s 195(a) of the Crimes Act 1900. It carried a maximum penalty of imprisonment for 5 years. There was no standard non-parole period. 20Shortly afterwards, the applicant proceeded to become intoxicated. He began to abuse the victim, including referring to her as a "whore". She retreated into the bathroom, and from there heard the applicant respond verbally to a photograph he found on her laptop of another man. When he appeared in the bathroom holding that computer, she explained that it was a photograph of a former boyfriend. The applicant smashed the laptop against the sink and also onto the floor. He then threw it at the applicant, and it struck her on her left thigh. 21The damage to the laptop founds count 1. That was another offence of malicious damage, brought pursuant to s 195(a) of the Crimes Act and carried a maximum penalty of imprisonment for 5 years. There was no standard non-parole period. 22The striking of the thigh of the victim with the laptop thrown by the applicant founded count 2. It was a charge alleging assault occasioning actual bodily harm, brought pursuant to s 59 of the Crimes Act. The maximum penalty for that offence was imprisonment for 5 years. No non-parole period was prescribed. 23The applicant picked up the broken pieces of the laptop and placed them in a plastic bag. He threw it at the victim, the sharper pieces of the broken item causing her pain on impact. The applicant commenced to hit the victim about the head with his hands. He then threatened her with being "put in a wheelchair", and threatened her family and friends with death if she were to inform anyone of his conduct. As result of those threats, the victim promised not to inform anybody about his behaviour. 24Thereafter he struck her with his fists, and kicked her about the head. When she cried out in fear and pain, he threatened to hit her "so that she would not be able to scream anymore." 25At one stage the applicant went to the bathroom. The victim took the opportunity to try to leave. The applicant left the bathroom, intercepted her, struck her, and ordered her to sit on the lounge. The detention of the victim continued until the applicant saw fit to take her to a hospital sometime later in order to obtain treatment for the injuries that he had inflicted upon her. 26The conduct of the applicant of detaining the victim for an extended period and inflicting a multitude of injuries upon her founds count 3 in the indictment, a charge of detaining for advantage and occasioning actual bodily harm. That was an offence contrary to s 86(2)(b) of the Crimes Act and the maximum penalty was imprisonment for 20 years. Again, there was no standard non-parole period. 27The applicant then informed the victim that he would show her what he was capable of. He obtained a fish that the victim had recently purchased for her home aquarium. Despite her pleas, he squeezed that pet to death in front of her. He turned off the power to the aquarium in which the remaining fish were living. 28The applicant continued with the beating of the victim from time to time. Her jaw became painful and swollen, and she was unable to open and close her mouth properly. Later treatment in hospital confirmed that the applicant had broken the jaw of the victim. 29That conduct founds the earlier count 4 (to which the applicant pleaded guilty). That was an offence of maliciously inflicting grievous bodily harm pursuant to s 35(1)(b) of the Crimes Act (as at 21 January 2005), and carried a maximum penalty of imprisonment for 7 years. There was no applicable standard non-parole period for this offence at the time that the offence was committed. 30Things reached a point where the victim lost consciousness. When she came to her senses, she was suffering from a degree of amnesia and disorientation. She was also suffering from pain in one hip, the leg that had been struck by the computer, her ribs, and her arms (quite apart from her jaw). 31The applicant forced the victim to accompany him to the bedroom. He began to hit her again and pull her hair. He cut up some foreign currency that was in her possession. He smashed her watches and a camera. The latter had to be smashed a number of times against the wall before it broke. 32The destruction of the camera constitutes count 4 in the indictment. Again, that was a count of malicious damage, brought pursuant to s 195(a) of the Crimes Act, and carried a maximum penalty of imprisonment for 5 years. No standard non-parole period was prescribed for that offence. 33The applicant ordered the victim to sit on the lounge again. He remarked that it would be impossible for her to go to work in her current condition, and that no one must see the injuries that she had sustained. When she informed him that she needed medical help, his response was that that would inevitably lead to the involvement of the police. Instead he suggested that the victim would simply have to wait until the bruising had disappeared. 34The applicant locked the victim in the bedroom with him, and piled suitcases against the door in order to forestall her escape. She was ordered to sleep on the side of the bed furthest from the bedroom door. The applicant informed the victim that if she sought to leave he would "smash" her. 35The following morning, 22 January 2005, the applicant was, at times, regretful. On other occasions, he reverted to jealousy, searching the apartment for items of property that he believed were connected with past relationships of the victim with an eye to destroying them. He forced the victim to write a note dictated by himself informing her flatmate that she and the applicant had travelled to Byron Bay for a week or two, and that she could not be contacted on her own phone. 36By this stage the victim was dizzy, weak, and limping as result of her injuries. The applicant forced her to drive him in her motor vehicle to his apartment at Glebe. By then he was apologising for the injuries he had inflicted and her appearance generally. 37Once inside the apartment at Glebe, the applicant tended to the injuries of the victim, and washed her face. He went so far as to telephone a help line, and confessed that he had attacked his girlfriend and left her "covered in bruises". On the other hand, despite the obvious need for the victim to receive medical attention, the applicant refused to take her anywhere until under cover of darkness. He forced her to agree that the story she would provide was that she had fallen down stairs whilst intoxicated. They travelled to the emergency department of Royal Prince Alfred Hospital in Camperdown. Out of fear, the victim complied with the orders of the applicant that she should mislead the medical staff. 38The victim was able to inform some friends and relatives by telephone of the truth. Others were provided with the lie manufactured by the applicant. A doctor who examined the victim rejected the story she told and encouraged her to see a social worker. 39The doctor who examined the victim at that stage - that is, after the first episode - noted a large number of injuries. Her face and scalp were grossly swollen and bruised. There were many injuries in and around her eyes and mouth. There were a large number of bruises to her face and ears. Her eyes were almost swollen shut, and her jaw was broken, as was her nose. Her legs, wrists, and upper arms were bruised. 40In summary, the treating doctor said that he was shocked by the extent of the swelling of the face and scalp of the victim, and it was so severe that he was unable to distinguish her facial features. 41On 24 January 2005 the victim underwent surgery for her broken jaw. Amongst other things, that required the insertion of 30 sutures to the mouth of the victim. 42On 26 January 2005, the applicant visited the victim in hospital. Whilst they were watching television together, he asked her whether she was a prostitute, and thereafter left her in the ward alone, remarking that he was unsure whether he would return. And yet the following day, 27 January 2005, the applicant returned to the hospital, and took the victim to his home in Glebe. The second ordeal of the victim was about to commence. 43That evening, the applicant ordered the victim to remove the navel ring that she was wearing. He stated that if she did not remove it herself he would "rip it out". In response to his questioning, she informed him that she had purchased it whilst in the company of a male friend. He proceeded to grab the victim by the throat and choke her. He punched her in the throat with a closed fist and grabbed her forcibly by her broken jaw. As one would expect, that act of the applicant caused the victim extreme pain. He remarked that he should "break her jaw again". 44The blow to the throat and the grabbing of the jaw of the victim founds the earlier count 7 (of which the applicant had been found guilty at a previous trial). That was an offence of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act and carried a maximum penalty of imprisonment for 5 years. Again, there was no prescribed standard non-parole period for this offence. 45The next morning, 28 January 2005, the applicant was affectionate. The victim was responsive in order to avoid further violence. For a time the applicant was not aggressive. However, whilst driving to a cafe in Randwick in the company of the applicant, the victim saw a male friend of hers crossing the road in front of them. The victim and that friend made eye contact, and the applicant noticed it. He abused her in the usual offensive terms, and they returned to the apartment in Glebe. There the applicant informed the victim that he would demonstrate "what he was capable of". 46The applicant produced what appeared to the victim to be an extendable baton. He struck the victim repeatedly with that weapon to her legs, her body, and across her feet. The victim was in great pain. The blows from the baton were delivered with sufficient force to cause the skin of the victim to split at more than one location. 47Separately, the applicant stamped on the hand of the victim whilst wearing shoes, breaking her fingers. 48The victim was originally ordered to sleep on the floor. Eventually the applicant permitted her to sleep in bed with him. The following morning, 29 January 2005, he inspected her injuries and remarked "Jesus, you look terrible." 49The victim was dizzy and passed out. When she regained consciousness the applicant proceeded to beat once again. Thereafter she submitted to penile/vaginal sexual intercourse. He penetrated the victim from behind, causing her internal pain. Thereafter he beat her again. 50That sexual intercourse founds count 6 in the indictment, an offence of sexual intercourse without consent. That charge was brought pursuant to s 61I of the Crimes Act and carried a maximum penalty of imprisonment for 14 years. Pursuant to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999, a standard non-parole period of 7 years was prescribed for that offence. 51The applicant at one stage remarked to the victim "Look at you. You're so old and stained and wrinkly. All these men, they had you before. Why should I have you now?" Later he ordered the victim to stop bleeding on his property. Later again, he threatened to slice her genitals in half so that she would not be attractive to other men in future. 52During the night, the applicant awoke, and he and the victim had penile/vaginal sexual intercourse again. That act founds count 7 in the indictment. That was an offence of sexual intercourse without consent, brought pursuant to s 61I of the Crimes Act. The maximum penalty was imprisonment for 14 years and a standard non-parole period of 7 years applied. 53The following day was Sunday, 30 January 2005. 54The beatings with the baton continued. At one stage the two of them travelled outside so that the applicant could use a public phone to order a pizza delivery. They returned to the flat, watched a video, and the beating recommenced. On enquiry from the victim as to whether he intended to kill her, the applicant replied that it was "not worth it to do so". 55Before retiring for the evening, the applicant requested that the victim bring him to ejaculation. She sought to use her hands (including the hand with the broken fingers) and her mouth to do so. However the attempt of the applicant to penetrate her mouth with his penis failed. That was because the state of her jaw made penetration impossible. Eventually, the applicant and the victim had penile/vaginal sexual intercourse. 56The attempted fellatio constitutes count 8 in the indictment. That was an offence of attempted sexual intercourse without consent, brought pursuant to s 61P of the Crimes Act, and a maximum penalty of imprisonment for 14 years was prescribed. Because the offence was an attempt, there was no standard non-parole period. 57The penile/vaginal sexual intercourse founds count 9 in the indictment. Again, that was brought pursuant to s 61I of the Crimes Act and carried a maximum penalty of imprisonment for 14 years. Again, a standard non-parole period of 7 years was prescribed for that offence. 58The following day was Monday, 31 January 2005. The applicant continued to beat the victim, albeit not with a weapon. At one stage his mood changed and he seemed to the victim to become more caring. She was told to take a shower and clean her hair, which was matted with blood. After the shower, the applicant ordered her to lie on the bed. He said "Stop. Lie on the bed. I want to fuck you once more. This is all you are good for." The applicant then had penile/vaginal sexual intercourse with the victim without her consent. This act underpins count 10, which was brought pursuant to s 61I of the Crimes Act. It carried a maximum penalty of imprisonment for 14 years and a standard non-parole period of 7 years. 59The applicant then had penile/anal intercourse with the victim without her consent. He expressed his disgust with the process and withdrew from her body. This crime left the victim bleeding from the anus. That conduct founds count 11, which was again brought pursuant to s 61I of the Crimes Act. It had a maximum penalty of imprisonment for 14 years and a standard non-parole period of 7 years. 60The ordeal of the victim came to an end in the following circumstances. The applicant searched for clothes that would hide her injuries. His mood was volatile, and at one stage in the context of abusing her he spat on her. He made a threat to kill one of her friends. They left the flat together, and eventually the applicant permitted the victim to drive off on her own. A friend assisted her to go to the police. An ambulance was called, and she remained in hospital for two weeks. 61As one would expect, the injuries of the victim recorded at that location were extensive. When seen initially she complained of severe pain to her head, throat, chest, forearms, one hand, and both legs. There was bruising to her face, and to her neck (consistent with choking), and some bruises were of various ages. Her nose was broken into multiple parts. She had fractures in one of her feet. Her ribs were tender. There was bruising and swelling to her arms, consistent with defensive injuries. There was also at least one splitting injury to her skin of the kind to which I referred earlier, caused by the use of the baton with great force. As discussed earlier, the fingers of one hand were broken. They were a great many bruises to her limbs. She required surgery to her nose, and to her fingers. 62Finally, to complete the picture of the objective features of the offence, a victim impact statement provided to his Honour described the effects that the offences had had upon her. As one would expect, the ordeals of the victim had led to long-standing and severe psychological consequences. 63The profound objective gravity of the behaviour of the applicant requires no elaboration by me. Mere recital of its attributes and consequences is sufficient.

Subjective aspects 64As I indicated, save for the two offences to which the applicant pleaded guilty, all of the matters were resolved by way of the verdicts of juries. In the final trial, a defence that the injuries inflicted upon the victim were a result of a shared predilection for sadomasochism was rejected. 65The proceedings on sentence were extremely protracted. That was chiefly because an effort was made on behalf of the applicant to demonstrate that his behaviour had been the unforeseen side-effect of him taking medication that had been prescribed to the victim. A number of psychiatrists were called and cross-examined with regard to that issue. Ultimately, in the remarks on sentence, his Honour rejected the proposition that any aspect of the behaviour of the applicant could be sheeted home to prescription medication. That finding of fact is not impugned in this appeal. 66In a psychological report that was tendered on behalf of the applicant in the proceedings on sentence, it was recorded that the applicant conceded that, at the time of the offences, he had been abusing a number of prohibited drugs, including methylamphetamine in crystal form, commonly known as ice. 67The applicant was aged 28 years when he stood for sentence. He was born in Chile and came to this country at an early age. Domestic violence perpetrated by his father against his mother marred his upbringing. Although there had been some abuse of drugs and alcohol by the applicant in the past, his Honour did not regard it as being of great moment. His Honour found that there was no sign of mental illness or "significant emotional disturbance". 68With regard to education and employment, the applicant left school after completing year 10 at the age of 16 years. He later completed the senior years of high school at the age of 18 years. The applicant found employment as a painter and interior decorator for a period of 2 years. Thereafter the applicant recounted an employment history that featured casual employment in the hospitality industry. 69Speaking generally about the subjective case, his Honour noted that the applicant had not given evidence on sentence, making it difficult to come to firm findings of fact. 70The criminal record of the applicant was noteworthy. The facts of a number of offences appearing in it were placed before his Honour. 71In May 1999, the applicant was convicted in the Local Court of common assault, maliciously damaging property, and being armed with intent to enter a building and commit a misdemeanour. For those offences, he received community service orders. 72The facts of those offences were as follows. One evening the applicant sought access to his young daughter from a previous de facto partner. The partner refused to permit the applicant to see his child. His response was to attend her home with a meat cleaver, smash several windows to force entry, and enter the kitchen. The applicant threatened his de facto with the meat cleaver, and cut the telephone cable when an effort was made to alert the authorities. Eventually, the applicant was disarmed and no one was injured. 73In April 2003, the applicant was convicted again of maliciously damaging property. He was sentenced to periodic detention for 6 months. An appeal later in the year led to a suspended sentence being imposed. A condition of the bond of the suspended sentence was that the applicant undertake rehabilitation with regard to alcohol, and address anger management issues. 74The background to that incident was that the applicant had got into an argument with a motorist whilst both of them were still in their respective vehicles. The applicant then alighted from his vehicle and caused substantial damage to the door of the other motor vehicle by kicking it. 75In April 2004, the applicant was once again convicted in the Local Court of maliciously damaging property. Again, he was given the benefit of a suspended sentence. Conditions of the bond included that he obey reasonable directions with regard to drug and alcohol rehabilitation. 76The background of that offence is that, during the course of a social gathering, the applicant became aggressive and started threatening one of the guests. The threats escalated into a physical confrontation, and the host of the social gathering contacted the brother and mother of the applicant. The mother and brother of the applicant eventually attended the gathering and tried to resolve the situation. However, the applicant pushed his mother, causing her to fall. The younger brother of the applicant, who was a child, sought to calm things, but he was also threatened by the applicant. The mother, brother and other people present retreated into the premises of the social gathering, whilst the applicant returned to his family home. There the applicant proceeded to damage one of the interior walls of the family home with a knife.

Sentence structure 77Annexed to this judgment is a diagram that seeks to show the structure of the sentences imposed by his Honour in a readily comprehensible form. 78I shall discuss the sentences in the order of the position that they occupy within that structure. 79For the earlier count 1, a fixed term of imprisonment of 6 months to commence on 31 January 2005 and expire on 30 July 2005 was imposed. 80For the earlier count 4, a head sentence of imprisonment for 4 years to commence on 31 January 2005 with a non-parole period of 3 years was imposed. The non-parole period expired on 30 January 2008 and the balance of term expired on 30 January 2009. 81For count 1, a fixed term of imprisonment for 12 months to commence on 31 January 2005 and to expire on 30 January 2006 was imposed. 82For count 4, a fixed term of imprisonment for 8 months to commence on 31 January 2005 and expire on 30 September 2005 was imposed. 83For count 2, a head sentence of imprisonment for 2 years to commence on 31 January 2005 with a non-parole period of 1 year 6 months was imposed. The non-parole period expired on 30 July 2006 and the balance of term expired on 30 January 2007 (his Honour made a slight error with regard to pronouncement, but nothing turns on it). 84For count 3, a head sentence of imprisonment for 8 years to commence on 31 July 2005 with a non-parole period of 6 years was imposed. The non-parole period expired on 30 July 2011 and the balance of term expired on 30 July 2013. 85For the earlier count 7, a head sentence of imprisonment for 3 years 4 months to commence on 31 January 2006 with a non-parole period of 2 years 6 months was imposed. The non-parole period expired on 30 July 2008 and the balance of term expired on 30 May 2009. 86For count 6, a head sentence of imprisonment for 9 years 4 months to commence on 31 January 2006 with a non-parole period of 7 years was imposed. The non-parole period expired on 30 January 2013 and the balance of term will expire on 30 May 2015. 87For count 7, a head sentence of imprisonment for 9 years 4 months to commence on 31 January 2006 with a non-parole period of 7 years was imposed. The non-parole period expired on 30 January 2013 and the balance of term will expire on 30 May 2015. 88For count 8, a head sentence of imprisonment for 10 years to commence on 31 January 2006 with a non-parole period of 7 years 6 months was imposed. The non-parole period expired on 30 July 2013 and the balance of term will expire on 30 January 2016. 89For count 9, a head sentence of imprisonment for 9 years 4 months to commence on 31 January 2006 with a non-parole period of 7 years was imposed. The non-parole period expired on 30 January 2013 and the balance of term will expire on 30 May 2015. 90For count 10, a head sentence of imprisonment for 9 years 4 months to commence on 31 January 2006 with a non-parole period of 7 years was imposed. The non-parole period expired on 30 January 2013 and the balance of term will expire on 30 May 2015. 91For count 11, a head sentence of imprisonment for 10 years to commence on 31 January 2006 with a non-parole period of 7 years 6 months was imposed. The non-parole period expired on 30 July 2013 and the balance of term will expire on 30 January 2015. 92Finally, for count 5, a head sentence of imprisonment for 10 years 8 months to commence on 31 July 2006 with a non-parole period of 7 years 7 months was imposed. The non-parole period will expire on 28 February 2014 and the balance of term will expire on 30 March 2017. 93A number of aspects of the sentence structure are noteworthy. 94First, all of the offences committed at Randwick were concurrent with each other, in the sense that they all have the same commencement date, 31 January 2005. The only exception to that is count 3, the offence founded upon detention, which commences 6 months later. 95Secondly, all of the Glebe offences are concurrent with each other, in the sense that they all commence on 31 January 2006. Again, the exception to that is count 5, the offence founded upon detention, which commences 6 months later on 31 July 2006. 96In other words, it could be said that the period in custody solely referable to the entirety of the criminality evidenced at Randwick is nothing more than 12 months. 97Thirdly, all but one of the non-parole periods had expired by the date of hearing of this appeal. The only non-parole period that continues to apply to the applicant of is that of count 5, and it expires at the end of February 2014. On the other hand, a number of head sentences remain extant.

Grounds of appeal 98Five grounds were originally notified. However, only three were pressed at the hearing: "1. His Honour erred in his consideration of the standard non-parole period (Muldrock -v- The Queen (2011) HCA 39) for counts 6,7,9,10 & 11 (Fourth trial); 2. His Honour erred in failing to allow any discount at all for the guilty pleas entered with respect to both counts 1 & 4 (First trial); ... 5. His Honour erred in imposing certain sentences which were otherwise manifestly excessive." 99Before any consideration of the grounds arises, however, it is necessary to consider whether the applicant should be given leave to appeal out of time with regard to sentences that were imposed in October 2008 with regard to criminality that occurred as long ago as January and February 2005.

Leave to appeal out of time 100It must seriously be doubted that an applicant should be permitted to appeal against sentences that were imposed so long ago. Although affidavits were received with regard to the question, they were hardly compelling. Not only that, to the extent that ground 2 focuses on the sentence imposed for earlier count 1 (a fixed term of imprisonment for only 6 months that expired on 30 July 2005; that is, over 8 years before the hearing of the appeal) it is hard to imagine that this Court should concern itself with such a sentence. It is well known that there are sound reasons why criminal appeals should not be permitted when they are grossly out of time: see, for example, the recent discussion in Ngo v R [2013] NSWCCA 142. In particular, the lack of a satisfactory explanation for the delay and the absence of meritorious grounds of appeal, as discussed in that case at [83] and [89] respectively, would militate against such leave being granted. 101On the other hand, perhaps it could be said that, although all but one of the non-parole periods have indeed expired, their place in the overall sentencing structure could have affected the sentence that remains operative, including the length of its non-parole period. Not only that, there are still a number of head sentences that have the potential to detain the applicant, whether by way of a refusal to release him at the end of the concomitant non-parole period, or perhaps by way of a breach of parole in the future. 102Furthermore, since October 2011 this Court has not, to my knowledge, refused to entertain a ground founded on "Muldrock error" on the basis of the effluxion of time (see, however, the remarks in Montero v R [2013] NSWCCA 214 at [2] - [8] of Leeming JA with regard to the principle of finality). 103Finally, I consider that the grounds are at least arguable. 104In all the circumstances, I consider that leave should be granted.

Ground one 105This ground focused upon those counts to which a standard non-parole applied; namely counts 6, 7, 9, 10 and 11. It is founded upon the following portion of the remarks on sentence: "The Significance of the Standard Non-Parole Period In his second reading speech addressing the legislation introducing the provisions for standard non-parole periods reported in Hansard on 23 October 2002, and quoted in R v Way [2004] 60 NSWLR 168 at para 49, the Attorney General indicated that the standard non-parole period specified for an offence would represent the non-parole period appropriate for conduct within the middle range of objective seriousness for such an offence, and that the standard non-parole period would provide a reference point or benchmark within the sentencing spectrum for conduct that falls above or below the middle of the range of objective seriousness for such an offence. Section 54A(2) of the Crimes (Sentencing Procedure) Act provides that the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences included in the table to Part 4 Division 1A of the Act. Section 54B provides that the court is to set the standard non-parole period fixed for the offence unless the court determines that there are reasons for setting a non-parole period that is either longer or shorter than the standard non-parole period. By force of s 54B(3) the reasons for which a court may set a non-parole period that is longer or shorter are restricted to those matters set out in s 21A of the Act. All of the matters set out in s 21A of the Act are matters that are, generally speaking, taken into account as aggravating or mitigating factors, with the exception that where a factor listed under s 21A as an aggravating factor is in fact as essential element of the offence, it cannot be said to act in such a case as an aggravating factor. I take into account the decision of the Court of Criminal Appeal in R v Way: ibid, and subsequent authority, which confirm that the standard non-parole period strictly applies only to offences within the middle range of objective seriousness upon conviction after trial, but nevertheless provides another guidepost of sentencing in courts when a trial is avoided by a plea of guilty. The other guidepost is the maximum penalty provided for the offence. When determining the sentence to be imposed upon an offender the court assesses these guideposts in light of the assessed criminality of the offence and the offender, including the nature of his or her participation in the offence, the favourable subjective features of the offender, and any other discount entitlements for such things as a plea of guilty. In accordance with the decision of the Court of Criminal Appeal in R v Way: ibid, one must ask whether reasons exist for not imposing the standard non-parole period. This question is answered by considering the objective seriousness of the offence in order to determine whether it falls within the middle range of objective seriousness for offences of the relevant kind. This assessment includes consideration of the applicable circumstances of aggravation and mitigation provided in s 21A of the Act and having regard to the general provisions of s 21A(1)(c) and the concluding sentence in s21A(1) of the Act. The circumstances of aggravation and mitigation that are relevant to this question as those that are directly or causally related to the commission of the offence. These may include matters that are itemised in s 21A(3) as mitigating factors. Accordingly, assessment of the objective seriousness of the offence requires consideration of the conduct of the offender in his commission of the offence and the circumstances in which it was committed, and consideration of the circumstances of aggravation and mitigation in s 21A of the Act that are relevant to those matters in the sense that they are directly or causally related to the offending conduct. If it is determined that the offence falls within the middle range of objective seriousness, then the standard non-parole period applies but it is subject to appropriate discount where consideration such as a plea of guilty are to be brought to account. If it is determined that the offence does not fall within the middle range of objective seriousness, then the standard non-parole period is not imposed. The court is then required to exercise its sentencing discretion in accordance with established sentencing practices and by reference to matters identified in ss 3A, 21A, 22, 22A and 23 of the Act when they are relevant. Even though the standard non-parole period is not to be imposed in such cases, it remains a reference point or guidepost along with other relevant extrinsic aids such as authority, statistics, guideline judgments and the specified maximum penalty. For the reasons that will appear hereunder, the sentences I am about to impose for the offences for which there is a standard non-parole period will reflect my assessment of the objective seriousness of the offences and the extend of the misconduct of the offender in the commission falls at the middle range of objective seriousness contrary to s 61I of the Crimes Act and my assessment of the subjective factors that are available in support of his position." 106The applicant submitted that, as one would expect in light of the date when sentence was imposed, his Honour had sentenced in accordance with the decision of R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 and not in accordance with the decision of Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. The submission was, in short, that the approach adopted by his Honour was overly structured and prescriptive. Not only that, the length of the non-parole periods themselves for many of the offences (such as the sexual offences) supports the proposition that his Honour adopted an approach that was too rigid. 107The Crown submitted that, in truth, the remarks that found the ground could be read as being in accordance with the substantially more flexible approach adopted by the High Court some two years ago.

Determination 108I do not consider that, in order to determine this ground, it is necessary for me to review the body of jurisprudence of this Court that has developed in the time since Muldrock v The Queen was delivered: see R v Koloamatangi [2011] NSWCCA 288, Yang v R [2012] NSWCCA 49, and R A Hulme J, "After Muldrock  sentencing for standard non-parole period offences in NSW" (2012) 24(10) Judicial Officers' Bulletin 81. 109Of course, simply because a sentence was imposed before Muldrock v The Queen was promulgated does not of itself mean that the approach to sentencing was erroneous: see Butler v R [2012] NSWCCA 23. Each case must be determined on its own merits. 110Here, I consider that it is established that his Honour adopted a rather more structured approach than was consonant with what the High Court of Australia said three years later. Of course, not the slightest criticism can be made of his Honour for doing so. 111In short, I consider that a fair reading of the remarks on sentence, combined with the sentences actually imposed, demonstrates that his Honour gave the standard non-parole period inappropriate weight, in light of the subsequent development of the statutory interpretation of Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act. 112It follows that I consider that this ground has been made out. Whether there should be any adjustment to the sentences in light of s 6(3) of the Criminal Appeal Act 1912 is another question entirely, to which I shall return at the end of my judgment.

Ground two 113It will be recalled that the applicant pleaded guilty to the earlier count 1 and the earlier count 4 many months before the end of the trial before Judge Bennett. It will also be recalled that the Crown led evidence of those crimes in any event. And it can be seen from my review of the objective features that they were just two of many, many acts of the applicant placed before the jury in the final trial. 114In that regard, his Honour said in the remarks on sentence: "Diaz pleaded guilty to only two of the offences upon which he is to be sentenced. This he did when he was arraigned before Judge Armitage at the commencement of the first of these trials. It cannot be said that his decision to do so has provided much in the way of utility or that it in any way demonstrates remorse and contrition to mitigate the reprehensible cruelty and brutality upon which he engaged in his mistreatment of the complainant. There shall be no discount allowed for those pleas." 115Towards the end of his remarks, his Honour said: "I have noted the pleas of guilty by the offender. In my assessment they do not in the circumstances justify any reduction in what otherwise would be the appropriate sentences." 116The submission of the applicant was simple. He submitted that, in accordance with the seminal case of R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, there should have been some reduction for the utilitarian value of the two pleas. Whilst he accepted that the sentence imposed for the earlier count 1 was so trivial, in the overall sentence structure, that it is most unlikely that it had any effect on the overall period of incarceration, he submitted that the same could not be said with regard to the earlier count 4. It will be remembered that that offence, to which the applicant pleaded guilty at an early stage, resulted in a head sentence of imprisonment for 4 years with a non-parole period of 3 years. 117The simple submission of the Crown was that the well-known case of R v Thomson; R v Houlton does not mandate a utilitarian discount in every case in which a plea of guilty is entered. In this case, it was submitted, the approach of the sentencing Judge was correct, because the two pleas of guilty did not result in any reduction in the amount of evidence led in the Crown case, or in the court time taken. The most that could be said is that, in accordance with those pleas, there could have been no cross-examination about the subject matter of those two counts directed towards reasonable doubt as to whether or not they had occurred. In short, the Crown submitted that it was open to the evaluative judgment of his Honour not to provide a discount, even despite the fact that those pleas had been entered months before the resolution of the matter.

Determination 118In R v Thomson; R v Houlton, Spigelman CJ delivered a judgment which enjoyed the unanimous agreement of a five judge bench of this Court. At [160] of that judgment, his Honour said: "The Court should adopt the following guideline applicable to offences against State laws: (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last-mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount." (emphasis added) 119In other words, contrary to the submission of the applicant, the guideline judgment that has stood for the past 13 years explicitly countenances situations in which, although there is a plea of guilty, there will not be any discount. 120Here, the utilitarian value of the pleas was, in the overall scheme of things, so trivial as to be either nothing or virtually nothing. I accept that in the vast majority of cases, and in accordance with the guideline and its application over the past many years, sentencing judges should provide a discount for the utilitarian value of a plea of guilty. But I consider that this is the rare case in which the refusal to discount the sentence was reasonably open to the evaluative judgment of the learned sentencing Judge about the question. 121It follows that I consider that this ground should be rejected.

Ground five 122This ground focused on some but not all of the sentences imposed; namely earlier counts 1 and 7, and counts 1-11. It was founded chiefly upon an analysis of statistics that suggest that the sentences imposed were very much towards the top of the range of sentences imposed by other judges in other matters. It was submitted that that result is not consonant with the finding of his Honour that counts 6, 7, 9 and10 fell within "the middle range of objective seriousness". 123The Crown submitted that it could hardly be expected that, in light of the harrowing facts of the matter, the sentencing Judge would impose anything other than a very substantial sentence. The submission was that neither any individual sentence, nor the total head sentence, nor the total non-parole period, was unreasonable or plainly unjust, to use the well-known phrase from Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357.

Determination 124My respectful response to the analysis founded on the observation that the sentences are towards the top of the range of those imposed at first instance is that one would hardly expect otherwise, in light of the profound gravity of the offences. 125I do not consider that the generous characterisation of some of the offences as in the mid-range of objective seriousness detracts from the appropriateness of the position of the offences within the statistical spectrum. 126I shall turn to analyse the impugned individual sentences in the order in which they appear in the sentence structure and remarks on sentence; that is, in general order of commencement date. 127With regard to the earlier count 1, it was submitted on behalf of the applicant that a fixed term of 6 months was manifestly excessive for destroying a mobile phone and SIM card. 128Complaint was also made about the fixed terms of 12 months and 8 months imposed with regard to counts 1 and 4, pertaining to the damage of the laptop and the camera. 129Count 2 was founded, it will be recalled, on a broken laptop being thrown at the victim's thigh, and causing injury to it. It resulted in a head sentence of imprisonment for 2 years with a non-parole period of 1 year 6 months. 130It is convenient to discuss all four of those sentences together. 131I consider that the sentences for the three offences of malicious damage were beyond the discretion open to his Honour. Although each of them was certainly committed in the context of very serious offending, each offence on its own was not of the greatest seriousness. Indeed, if they were the only offences for which the applicant was being dealt with, they would almost certainly have been disposed of in the Local Court. And despite the criminal record of the accused, it would have been quite likely that they would have been dealt with by way of an alternative to full-time imprisonment. 132In the circumstances, I consider that a nominal fixed term of imprisonment for 1 month to date from 31 January 2005 should be substituted for each offence of malicious damage. 133As for count 2, it will be recalled that that was an assault occasioning actual bodily harm founded, as I have said, on the throwing of the laptop at the thigh of the victim. His Honour found that that caused her "extreme pain", but did not otherwise determine in the remarks on sentence what was the actual bodily harm occasioned to the victim. 134Again, I consider that a head sentence of imprisonment for 2 years with a non-parole period of 1 year 6 months was beyond the discretion open to his Honour in this circumstances. For the general reasons given above with regard to the offences of malicious damage, I propose instead a fixed term of imprisonment for 3 months to date from 31 January 2005. 135I shall return to consider the effect that those adjustments have upon the sentence structure a little later. 136Count 3 encapsulated the detention and beating of the victim by the applicant over an extended period. The offence carries a maximum penalty of imprisonment for 20 years. In light of all of the objective and subjective features, it cannot be said, in my respectful opinion, that a sentence of imprisonment for 8 years with a non-parole period of 6 years is assailable as manifestly excessive. 137The earlier count 7 was, it will be recalled, the first of the offences committed in Glebe. It will be recalled that it was founded upon the blow to the throat and choking of a woman who had very recently been released from hospital and operated upon for a broken jaw inflicted by the applicant. Her jaw was forcibly grabbed, causing immense pain. It was an act notable for its cruelty. In light of the maximum penalty of imprisonment for 5 years, I reject the proposition that the head sentence of 3 years 4 months with a non-parole period of 2 years 6 months is manifestly excessive. 138Counts 6 and 7 were founded upon two instances of penile/vaginal sexual intercourse without consent. They occurred in a context of extended violence, degradation, and severe physical and psychological suffering. The maximum penalty was imprisonment for 14 years, and a standard non-parole period of 7 years was prescribed. I accept that a head sentence of imprisonment for 9 years 4 months with a non-parole period of 7 years is, in each case, substantial. But I am not persuaded that those sentences are manifestly excessive. 139Count 8 was founded upon an offence of attempted sexual intercourse without consent. It will be recalled that it reflected an adult man seeking to force a woman whose jaw he had very recently broken to perform oral sex upon him. Not only that, he was well aware that her jaw had been the subject of an operation and received up to 30 sutures. That context makes the particular offence far more serious than an example of the offence that lacks those peculiarly cruel attributes. I am not persuaded that a head sentence of imprisonment 10 years with a non-parole period of 7 years 6 months is manifestly excessive in those circumstances. 140Count 9 was founded upon yet another instance of non-consensual penile/vaginal intercourse. That offence occurred shortly after the victim failed to perform fellatio on the applicant (the subject matter of count 8). Count 10 was founded upon a further instance of penile/vaginal intercourse without consent that followed the applicant verbally abusing the victim. Again, whilst I accept that the sentences comprising a head sentence of imprisonment for 9 years 4 months and a non-parole period of 7 years are substantial, I am not persuaded that they are manifestly excessive. 141Count 11, the final count of sexual intercourse without consent, was founded upon penile/anal intercourse inflicted upon the victim. It will be recalled that adding to the degradation and corporal invasion inherent in any penetrative sexual assault was the fact that the applicant declared himself to be disgusted with the whole process. Not only that, the victim suffered the added indignity of having injury inflicted that caused her to bleed from the anus. I do not regard a head sentence of imprisonment for 10 years with a non-parole period of 7 years 6 months as manifestly excessive. 142The final sentence about which complaint is made as part of this ground is count 5. That was the count that encompassed the whole of the detention of the victim over an extended period at Glebe, along with all of the violence and injuries that were not encompassed in other offences. A head sentence of imprisonment for 10 years 8 months with a non parole period of 7 years 7 months was imposed. 143As against a maximum penalty of imprisonment for 20 years, and bearing in mind that this offence of detention was committed very soon after a similar offence of equal gravity, with only a period of hospitalisation intervening, I cannot accept that the sentence is manifestly excessive. 144I turn next to consider the question of whether the total head sentence and total non-parole period are manifestly excessive. 145I have already indicated that aspects of the sentence structure carry with them a degree of leniency. And speaking more generally, I do not accept that a total head sentence of imprisonment for 12 years 2 months with a total non-parole period of 9 years 1 month can be said to be beyond the range of the legitimate discretion open to his Honour, in light of the deplorable criminality inherent in these 14 counts. 146Finally, it is necessary to consider whether the adjustments I propose to the sentences for earlier count 1, count 1, count 4, and count 2 should have any effect on the overall structure. In particular, one needs to consider whether the degree of cumulation of any other sentence should be reduced to some extent. 147As for the three sentences for malicious damage, in light of their length both before and after adjustment, their triviality in the scheme of things, and their complete concurrence with other, more serious offences, I reject any suggestion that their reduction should lead to alteration of the sentence structure in favour of the applicant. 148As for the assault occasioning actual bodily harm, it is true that I propose that it should be markedly reduced. But the only sentence that could possibly be adjusted with regard to commencement date as a result of the shortening of the sentence for count 2 is that imposed for count 4. As discussed, that commences only 6 months after all of the other offences committed at Randwick, including an offence of maliciously inflicting grievous bodily harm. I do not accept that that minor degree of cumulation should be further reduced. 149In the circumstances, I consider that the reduction in the sentence for count 2 cannot lead to any alteration of any other sentence, including count 3. 150The result is that, although some sentences that expired years ago have been reduced as a result of the partial success of ground three, that success will have no effect on the overall custodial position of the applicant. 151In short, I would allow ground three in part.

Section 6(3) with regard to ground one 152As I have indicated, I would uphold ground one, despite my misgivings about leave being granted to argue it. And I regard the error as being a material one. The question for determination then becomes whether a lesser sentence is warranted in law. 153In that regard, no evidence with regard to the progress of the applicant since the date of sentence was relied upon. But I consider it appropriate to take into account the evidence that was relied upon with regard to leave. That shows that the applicant has found incarceration stressful, at least in its early stages. Other than that, I know little of the progress of the applicant over the past eight years or so. 154It is true that the applicant had never been sentenced to full-time imprisonment before. I also suspect that prohibited drugs markedly exacerbated the violent proclivities of the applicant, including his sexual behaviour. But that latter factor cannot sound powerfully in mitigation in this matter: ZZ v R [2013] NSWCCA 83 at [113]. His criminal record shows that, for years before the commission of these offences, the applicant had a serious problem with anger that had, on one occasion, led to him terrorising a woman with whom he had been in an intimate relationship. The offences under consideration occurred in two discrete blocks, and were not merely one explosion of criminality. Most importantly, the offences were exceptional in their cruelty and brutality. 155In all the circumstances, I am not persuaded that a lesser sentence is warranted in law, either with regard to any individual offence that is the subject of ground one, or with regard to the total head sentence or the total non-parole period. 156It follows that, although I consider that ground one has been made out, that should have no effect on the sentences imposed by his Honour.

Orders 157I propose the following orders: (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.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 November 2013

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