Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Arenilla-Cepeda v R [2012] NSWCCA 267 Hearing dates: 18 September 2012 (further written submissions closed 12 October 2012) Decision date: 13 December 2012 Before: Macfarlan JA at [1]
Johnson J at [2]
Davies J at [103]Decision: Leave to appeal against sentence granted and appeal allowed.
Sentence imposed at the Sydney District Court on 29 October 2010 is quashed.
In its place, the Applicant is sentenced for the offence of conspiracy to possess a commercial quantity of a border controlled drug, cocaine, to a term of imprisonment of 12 years and six months commencing on 22 September 2008 and expiring on 21 March 2021 with a non-parole period of seven years and nine months commencing on 22 September 2008 and expiring on 21 June 2016.
The Applicant will be eligible for release to parole on 21 June 2016.
Catchwords: CRIMINAL LAW - sentence - conspiracy to possess commercial quantity of border controlled drug (cocaine) - co-offenders sentenced by different judges - co-offender sentenced first in time - applicant's sentencing judge not informed of co-offender's sentence - whether applicant has legitimate sense of grievance - parity principle - different roles of offenders - different quantities of cocaine - strong desirability that related offenders be sentenced by same judge - necessity for remarks on sentence to be provided if to be sentenced by different judge - objective foundation demonstrated for applicant's sense of grievance - lesser sentence imposed Legislation Cited: Criminal Code Act 1995 (Cth)
Drug Misuse and Trafficking Act 1985
Firearms Act 1996Cases Cited: R v AB [2011] NSWCCA 229; 59 MVR 356
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274
R v Chandler [2012] NSWCCA 135
Tyler v R [2007] NSWCCA 247
Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540
Zreika v R [2012] NSWCCA 44
Jones v The Queen [1993] 67 ALJR 376
Rees v R [2012] NSWCCA 47
Rae v R [2011] NSWCCA 211
R v Nguyen [2010] NSWCCA 238; 205 A Crim R 106
Ng v R [2011] NSWCCA 227; 214 A Crim R 191
Green v The Queen [2011] HCA 49; 244 CLR 462Texts Cited: --- Category: Principal judgment Parties: Wilbur Antonio Arenilla-Cepeda (Applicant)
Regina (Respondent)Representation: Counsel:
Mr DB O'Neil (Applicant)
Mr CP O'Donnell (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2009/11732 Publication restriction: --- Decision under appeal
- Citation:
- ---
- Date of Decision:
- 2010-10-29 00:00:00
- Before:
- His Honour Judge Toner SC
- File Number(s):
- 2009/11732
Judgment
MACFARLAN JA: I agree with Johnson J.
JOHNSON J: The Applicant, Wilbur Antonio Arenilla-Cepeda, seeks leave to appeal against sentence imposed by his Honour Judge Toner SC at the Sydney District Court on 29 October 2010 for an offence of conspiracy to possess a commercial…
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- AGLC
- Arenilla-Cepeda v R [2012] NSWCCA 267
- Case
- [2012] NSWCCA 267
- Decision Date
CaseChat Overview and Summary
The court considered whether the applicant's sense of grievance was objectively founded, given that the roles of the offenders and the quantities of cocaine involved differed. The court acknowledged the strong desirability of related offenders being sentenced by the same judge to ensure consistency and fairness. However, the court also recognised the necessity for remarks on the sentence to be provided if the offenders are to be sentenced by different judges. The court found that the objective foundation for the applicant's sense of grievance was demonstrated, as the applicant believed that their sentence was harsher despite the differences in their roles and the quantities of cocaine.
After considering the arguments and evidence presented, the court determined that the applicant's sense of grievance was legitimate. The court imposed a lesser sentence on the applicant, reflecting the considerations of parity and the need for fair treatment in sentencing. This decision underscored the importance of ensuring that related offenders are sentenced in a manner that maintains the integrity and perceived fairness of the judicial process.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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