Legal Research
Cases
R v Amurao

R v Amurao

Case [2005] NSWCCA 32 18 February 2005

No judgment structure available for this case.

Type to search within this case.

CITATION:
R v AMURAO [2005] NSWCCA 32
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 30 June 2004

JUDGMENT DATE:

18 February 2005

JUDGMENT OF:
Ipp JA at 1; Hulme J at 6; Hislop J at 80

DECISION:
Grant leave to appeal; Allow the appeal; Quash the sentences imposed by Judge Gibson in respect of counts 1, 4 5 and 6; Confirm the sentence imposed by Judge Gibson in respect of count 3, viz a fine of $3,000; Confirm the sentence imposed by Judge Gibson in respect of count 2, viz imprisonment for a fixed term of 2 years commencing on 25 July 2002; In respect of count 1, sentence the Applicant to imprisonment for a fixed term of 2 years, commencing on 25 July 2003; In respect of count 4, sentence the Applicant to imprisonment for a fixed term of 1 year and 3 months, commencing on 25 July 2004; In respect of count 5, sentence the Applicant to imprisonment for a fixed term of 2 years, commencing on 25 July 2005; In respect of Count 6 a sentence of 5 years imprisonment be imposed, with a non-parole period of 2 years, both such periods to commence on 25 July 2006; The Applicant will become eligible for parole on 24 July 2008.

PARTIES:
Regina
Jose Gulpa AMURAO

FILE NUMBER(S):
CCA 60150/04

COUNSEL:
Crown: E Wilkins
Appellant: P Boulten SC

SOLICITORS:
Crown: S Kavanagh
Appellant: P Hardin

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/0545

LOWER COURT JUDICIAL OFFICER:
JXC Gibson ADCJ

- 23 -

60150/04

Hulme J
Hislop J

Friday, 18 February 2005

REGINA v Jose Gulpa AMURAO

Judgment

1 IPP JA: I have had the benefit of reading the reasons to be published by Hulme J. Save as set out below I agree with his Honour.

2 In my opinion, having regard to the circumstances of the offence and the discount to which the applicant is entitled for his plea and assistance to the authorities, an appropriate sentence for Count 6 would be 5 years imprisonment.

3 In my opinion, having regard to the totality principle, the maximum effect of sentence which should be imposed on the applicant is one of 9 years imprisonment including a non-parole period of 6 years.

4 Accordingly, while I agree with Orders 1 to 8 proposed by Hulme J, I would order that in respect of Count 6 a sentence of 5 years imprisonment be imposed, with a non-parole period of 2 years, both such periods to commence on 25 July 2006.

5 I record my view that, on this basis, the applicant will become eligible for parole on 25 July 2008.

6 HULME J: On 17 October 2003 Acting Judge Gibson sentenced the abovenamed Applicant for leave to appeal in relation to 6 offences.

7 The charges to which the Applicant pleaded guilty, the statutory provision under which they arise, and the maximum penalty provided for…

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 Amurao

Details

AGLC: R v Amurao [2005] NSWCCA 32
Case: [2005] NSWCCA 32
Decision Date: 18 February 2005

CaseChat Overview and Summary

This case concerns an appeal by Jose Gulpa Amurao against his conviction and sentencing by the District Court for multiple drug and firearms related offences. Amurao had pleaded guilty to six counts, namely: possession of a firearm with a defaced identification mark, possession of a firearm without a permit, possession of ammunition without a permit, supplying a prohibited drug, and two counts of supplying a prohibited drug. The appeal was heard by Ipp JA, Hulme J and Hislop J, who all agreed on the outcome. The key issues were whether the sentence imposed by the District Court was manifestly excessive and whether the District Court had failed to properly consider certain mitigating factors.

The Court found that the District Court had erred in setting the sentence for the sixth count in a way that reflected Amurao's criminality across all counts, rather than just his participation in that specific offence. The Court also found that the District Court had erred in not mitigating Amurao's sentence for his cooperation with authorities. However, the Court found that the sentences for counts 5 and 6 were manifestly excessive given the quantity involved and Amurao's role in the offences. The Court concluded that appropriate sentences would be 2 years imprisonment for count 1, 1 year and 3 months for count 4, 2 years for count 5, and 5 years and 6 months with a non-parole period of 2 years and 4 months for count 6.

In summary, the Court allowed the appeal, quashed the sentences for counts 1, 4, 5 and 6, and imposed new sentences for those counts. The sentences for counts 2 and 3 were confirmed. Amurao will become eligible for parole on 25 November 2008.

Orders