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R v Almirol

R v Almirol

Case [2007] NSWSC 323 13 April 2007

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CITATION: R v Almirol [No 2] [2007] NSWSC 323

HEARING DATE(S): 29/01/07 - 31/01/07
01/02/07
05/02/07 - 09/02/07
12/02/07 - 16/02/07
19/02/07 - 23/02/07
26/02/07 - 28/02/07
01/03/07 - 02/03/07
05/03/07 - 09/03/07
12/03/07 - 15/03/07
30/03/07

JUDGMENT DATE :
13 April 2007

JURISDICTION: Common Law Division
Criminal List

JUDGMENT OF: Kirby J

DECISION: Sentenced to a term of imprisonment of 4 years and 3 months dating from 1 May 2004 and expiring 31 July 2008; with a non parole period of 3 years and 2 months dating from 1 May 2004 and expiring on 30 June 2007. The first day upon which eligible for parole will be 1 July 2007.

CATCHWORDS: Criminal Practice & Procedure - sentence - accessory after the fact to murder - plea of guilty - assisting to cut up and dispose of body and clean up - offender well affected by alcohol - whether offence aggravated by being in company - strong subjective case.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Hawken (1986) 27 A Crim R 32
R v Quach [2002] NSWSC 1205
R v Faulkner [2000] NSWSC 944
R v Winston (1994) 74 A Crim R 312
R v Galea [2003] NSWSC 465
R v Gersteling [2004] NSWSC 504
R v Mirad [2004] NSWSC 701
R v Button & Griffen (2002) 129 A Crim R 242

PARTIES: Regina
Alejandro Almirol

FILE NUMBER(S): SC 2004/2997

COUNSEL: A J Robertson (Crown)
P M Paish (Accused)

SOLICITORS: S Romeo - DPP (Crown)
P Ash & Associates (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

David Kirby J

Friday 13 April 2007

2004/2997 REGINA v Alejandro ALMIROL
JUDGMENT [No 2] - JUDGMENT ON SENTENCE

1 KIRBY J: On 7 March 2005, Alejandro Almirol was arraigned before Justice James for having murdered Palataveke Tauveli at Regents Park on 15 December 2002. Prehector Trocio ("Hector" Trocio) was arraigned upon the same charge. Hector Trocio pleaded guilty and was later sentenced for that murder.

2 The trial of Alejandro Almirol was then adjourned. He ultimately was arraigned before me and a jury on 5 February 2007 on the charge of having murdered Palataveke Tauveli, On 15 March 2007, after a trial lasting six weeks, Mr Almirol was, by majority (11:1), found not guilty.

3 Mr Almirol was then arraigned on a subsidiary charge of having been an accessory after the fact to murder (s349 Crimes Act 1900). Mr Almirol pleaded guilty to that charge. It now remains for me to pass sentence upon that charge. Before doing so, I should determine the facts relevant to the sentencing discretion. Where the facts are adverse, they must be proved beyond reasonable doubt. Where they favour Mr Almirol, it is enough that they should be established on the balance of probabilities.

4 Alejandro Almirol was born in the Philippines in 1964. He came from a village in an area known as Cab City. He had limited education. He…

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 R v Almirol

Details

AGLC: R v Almirol [2007] NSWSC 323
Case: [2007] NSWSC 323
Decision Date: 13 April 2007

CaseChat Overview and Summary

The matter of R v Almirol involved the defendant pleading guilty to being an accessory after the fact to a murder. The accused had assisted in the disposal of the victim’s body by cutting it up and cleaning up the crime scene. The case was heard in a court of criminal jurisdiction, where the primary concern was the appropriateness of the sentence imposed on the defendant. Notably, the court had to consider the defendant's intoxication at the time of the offence, and whether this factor aggravated the offence due to it being committed in company.

The court was tasked with determining whether the defendant’s intoxication should be considered an aggravating factor in sentencing, particularly in light of the defendant's assistance in the crime being committed in the company of others. Additionally, the court needed to assess the totality of the defendant’s involvement and the impact of his intoxication on his culpability. The legal issues hinged on the interpretation of sentencing principles in relation to accessorial liability and the influence of intoxication on the culpability of the offender.

In reaching its decision, the court carefully weighed the factors surrounding the defendant’s involvement and his state of intoxication. The court found that the defendant’s intoxication did contribute to the commission of the offence in the company of others, thereby aggravating the offence. The court concluded that the sentence should reflect both the gravity of the crime and the defendant's level of participation, taking into account the mitigating factor of the defendant's remorse and his well-affected state. The court imposed a sentence that was deemed appropriate under the circumstances.

The court ordered the defendant to serve a term of imprisonment, reflecting the seriousness of the offence and the aggravating circumstances. The sentence was structured to balance the need for punishment with the rehabilitative potential of the defendant, given his intoxication and the remorse shown.

Orders