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Supreme Court 13 July 2012

R v Urriola

[2012] NSWSC 1634

DrugsPublic order & justice offences
SENTENCE

Citation: R v Urriola [2012] NSWSC 1634
Court: Supreme Court of New South Wales
Date: 13 July 2012
Judge(s): Fullerton J

Background

The offender had originally been sentenced on 30 April 2010 on two counts: accessory after the fact to murder (Count 1), and supply of a commercial quantity of a prohibited drug (Count 2). The sentences were structured as a partly concurrent arrangement, with the drug supply sentence running as a fixed term commencing partway through the murder-related sentence.

The matter was remitted to Fullerton J for re-sentencing on Count 2 after it emerged that the original sentence imposed for that count was contrary to section 45 of the Crimes (Sentencing Procedure) Act 1999. That provision governs how courts must structure non-parole periods and balance of terms, and the original fixed-term order did not comply with its requirements.

The error was entirely the court's own, with no fault attributable to the offender. By the time the matter returned for re-sentencing, the offender had been in custody for over two years and had made positive progress during that period.

  • Whether the sentence imposed on Count 2 was contrary to section 45 of the Crimes (Sentencing Procedure) Act 1999 and therefore required correction.
  • How the re-sentence on Count 2 should be structured, taking into account the offender's progress in custody and the fact that he was returning to court solely because of a court-made error.
  • Whether a variation from the standard statutory ratio between non-parole period and balance of term was warranted in the circumstances.

Decision

Fullerton J confirmed that the original sentence on Count 2 was legally defective and proceeded to re-sentence on that count alone. The sentence on Count 1 was left undisturbed.

In re-sentencing, the Court took into account two key considerations: the offender's positive progress during custody over the preceding two years, and the basic fairness principle that an offender should not be disadvantaged by being required to return to court to remedy a purely judicial error. Fullerton J expressly stated an intention that the revised sentence would bring forward the offender's eligibility for parole consideration.

To achieve that outcome, the Court found it necessary to vary the standard statutory ratio between the non-parole period and the balance of term in the new sentence for Count 2. The revised sentence was structured so that the non-parole period commenced on 20 January 2011, resulting in parole eligibility from 19 July 2013 rather than the later date of 19 July 2014 that had applied under the original (defective) sentencing structure.

Orders Made

  • The sentence on Count 1 (accessory after the fact to murder) was confirmed without alteration.
  • The sentence on Count 2 (supply commercial quantity of prohibited drug) was quashed.
  • In substitution, a sentence of imprisonment was imposed comprising a non-parole period of 2 years and 6 months commencing 20 January 2011, with a balance of term of 1 year and 6 months expiring 19 January 2015.
  • The offender became eligible for release to parole on 19 July 2013.

Key Takeaways

  • A sentence that fails to comply with section 45 of the Crimes (Sentencing Procedure) Act 1999 is a legal error requiring correction, even where the structural defect is the court's own mistake.
  • Where an offender is returned to court solely to remedy a judicial error, the sentencing court may treat that circumstance as a relevant consideration when structuring the replacement sentence.
  • Positive progress during a term of custody is a recognised factor that a court may weigh when re-sentencing, even where the original offences remain unchanged.
  • Departure from the standard statutory ratio between non-parole period and balance of term can be justified where specific circumstances, including court-caused disadvantage, warrant it.
  • In re-sentencing on one count of a multi-count sentence, it is open to a court to confirm the remaining sentences and limit the re-sentencing exercise to the affected count only.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly section 45

Cases cited:
No cases were cited in the judgment.