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Court of Criminal Appeal 17 May 2012

Urriola v Regina

[2012] NSWCCA 95

DrugsFraud & dishonesty
CRIMINAL LAW CRIMES ACT 1900, S 349 ACCESSORY AFTER THE FACT TO MURDER SENTENCING SENTENCING MATTER REMITTED TO TRIAL JUDGE FOR RE

Citation: Urriola v Regina [2012] NSWCCA 95
Court: Court of Criminal Appeal, New South Wales
Date: 17 May 2012
Judge(s): Beazley JA (with Harrison J and McCallum J agreeing)

Background

The applicant pleaded guilty in October 2009 to two counts: accessory after the fact to murder (under s 349 of the Crimes Act 1900) and supply of a commercial quantity of cocaine (under s 25(2) of the Drug Misuse and Trafficking Act 1985). Sixteen additional offences were taken into account on a Form 1 attaching to the drug count. The accessory charge arose from the applicant's assistance in disposing of a murder victim's body in Sydney Harbour and later helping to destroy the victim's car.

At sentencing in April 2010, Fullerton J imposed a non-parole period of four years and six months for the accessory count, followed by a balance of term of one year and six months. For the drug count, her Honour imposed a fixed term of two years and six months, commencing upon the expiry of the non-parole period for count one.

The applicant sought leave to appeal on three grounds: that the sentence for the accessory count was manifestly excessive, that the total non-parole period exceeded 90% of the total sentence, and that the sentencing judge erred by imposing a fixed term for the drug offence rather than a sentence with a non-parole period as required by statute.

  • Whether the sentence for the accessory after the fact to murder count was manifestly excessive
  • Whether the structure of the total sentence resulted in a non-parole period exceeding 90% of the total term, contrary to the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge erred by imposing a fixed term for the drug offence when that offence carries a standard non-parole period, making a fixed term impermissible under s 45(1) of the Crimes (Sentencing Procedure) Act 1999

Decision

The Court first addressed the manifest excess argument on the accessory count. The applicant disputed two factual findings made by Fullerton J: that he had drilled holes in the toolbox used to sink the body, and her Honour's characterisation of the murder as a contract killing. The Crown conceded the first factual error. On the second, the Court accepted that the applicant may not have known the precise nature of the arrangement, but found this did not materially affect the objective gravity of the offending. Taking into account all mitigating factors, including the applicant's cooperation, early plea, and induced statement, the Court was not persuaded the sentence on count one was manifestly excessive.

On ground three, the Crown itself drew the Court's attention to the sentencing error. Under s 45(1) of the Crimes (Sentencing Procedure) Act 1999, a fixed term sentence is not available for an offence that carries a standard non-parole period. Supply of a commercial quantity of cocaine is such an offence. The fixed term imposed for the drug count was therefore legally impermissible, and ground three was allowed.

Because the matter was to be remitted for re-sentencing on count two, the Court declined to rule on ground two (the 90% ratio argument). The ratio between non-parole period and additional term would necessarily fall to be reconsidered by the sentencing judge on remitter, making it inappropriate for the Court of Criminal Appeal to address that question in advance.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed in part
  • Matter remitted to the trial judge for re-sentencing in respect of count two (supply of a commercial quantity of cocaine contrary to the Drug Misuse and Trafficking Act 1985, s 25(2))

Key Takeaways

  • Under s 45(1) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court cannot impose a fixed term for an offence that carries a standard non-parole period. A fixed term in such circumstances is a legal error, not merely a discretionary misjudgment.
  • Where a sentencing error on one count requires remitter, the Court of Criminal Appeal may decline to resolve related grounds of appeal that will inevitably be addressed afresh by the sentencing judge on remitter.
  • The Court of Criminal Appeal confirmed that two factual errors by the sentencing judge, including a conceded error about who drilled holes in the toolbox, did not alone establish manifest excess on the more serious count, where the overall assessment of objective criminality was not materially undermined.
  • Cooperation with authorities, provision of a comprehensive induced statement, and undertakings to give evidence against co-offenders were all treated as significant mitigating factors in the sentencing of the applicant, though they did not render the accessory sentence manifestly excessive.
  • The procedural mechanism for correcting the fixed-term error on remitter is re-opening under s 43 of the Crimes (Sentencing Procedure) Act 1999, as confirmed in Hristovski v R [2010] NSWCCA 129.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 193C(1), 349
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 43, 45(1), Division 1A of Part 4
- Criminal Appeal Act 1912 (NSW), ss 6(3), 12(2)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Firearms Act 1996 (NSW), s 65(3)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16

Cases
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Hristovski v R [2010] NSWCCA 129
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Postlewaight v R [2011] NSWCCA 279
- R v Almirol (No 2) [2007] NSWSC 323
- R v Faulkner [2000] NSWSC 944
- R v Galea [2003] NSWSC 465
- R v Morgan (1993) 70 A Crim R 368
- R v Tait (1979) 24 ALR 473; 46 FLR 386