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Arenilla-Cepeda v The Queen

Arenilla-Cepeda v The Queen

Case [2012] NSWCCA 267 13 December 2012

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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 1996
Cases 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 462
Texts 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arenilla-Cepeda v The Queen

Details

AGLC: Arenilla-Cepeda v R [2012] NSWCCA 267
Case: [2012] NSWCCA 267
Decision Date: 13 December 2012

CaseChat Overview and Summary

In Arenilla-Cepeda v The Queen, the applicant, Arenilla-Cepeda, was convicted of conspiracy to possess a commercial quantity of a border-controlled drug, specifically cocaine. The case reached the court, which was required to determine the legitimacy of the applicant's grievance concerning the disparity in sentencing between the applicant and a co-offender. The co-offender was sentenced by a different judge before the applicant, and the applicant's sentencing judge was not informed of the co-offender's sentence. The applicant argued that this disparity constituted a legitimate sense of grievance, invoking the parity principle and questioning the fairness of their sentence.

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