Urdanegui v The Queen - [2021] NSWCCA 170

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Urdanegui v R [2021] NSWCCA 170
Hearing dates: 14 July 2021
Date of orders: 23 July 2021
Decision date: 23 July 2021
Before: Meagher JA at [1];
Walton J at [22];
Harrison J at [23].
Decision:
Leave to appeal refused.

Catchwords:
CRIME — appeals — appeal against sentence — whether failure to take into account utilitarian value of early guilty plea

Legislation Cited:
Crimes Act 1914 (Cth), s 16A
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Criminal Code (Cth), s 307.2(1)
Judiciary Act 1903 (Cth), ss 68, 79, 80

Cases Cited:
Bae v R [2020] NSWCCA 35
Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191
Chuang v R; Chen v R [2020] NSWCCA 60
Weber v R [2020] NSWCCA 103
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category: Principal judgment
Parties: Bruce Urdanegui (Applicant)
Regina (Crown)
Representation:
Counsel:
S Kluss (Applicant)
A McGrath (Crown)
Solicitors:
Ross Hill and Associates Solicitors (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2018/277534
Publication restriction: N/A
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

26 July 2019

Before:

Lakatos SC DCJ

File Number(s):

2018/277534

Judgment

MEAGHER JA: The applicant, Mr Urdanegui, seeks leave to appeal from a sentence imposed for a federal drug importation offence on the ground that the “sentencing judge failed to take into account the utilitarian value” of his early plea of guilty. Leave to appeal is required by Criminal Appeal Act 1912 (NSW), s 5(1)(c).
On 26 July 2019, following the entry of that plea, Lakatos SC DCJ convicted and sentenced the applicant for the offence of importing a marketable quantity of a border controlled drug, namely 375.6 grams of pure cocaine brought into Australia on 10 September 2018, contrary to Criminal Code (Cth), s 307.2(1). The sentence imposed was 7 years imprisonment with a non-parole period of 4 years and 6 months, backdated to commence on 10 September 2018 when the applicant was taken into custody.
In hearing and determining the proceedings, the District Court was exercising criminal jurisdiction conferred by Judiciary Act 1903 (Cth), s 68 with respect to offences against laws of the Commonwealth. Except as otherwise provided by the Constitution or laws of the Commonwealth, the laws of New South Wales and the common law governed the exercise of that jurisdiction (Judiciary Act, ss 79, 80). Those laws included Crimes Act 1914 (Cth), s 16A(2)(g).
Section 16A(2)(g) provides that in determining his sentence “the court must take into account such of the following matters as are relevant and known to the court”. At the time the applicant was convicted those matters included:

(g) if the person has pleaded guilty to the charge in respect of the offence – that fact;

Findings of the sentencing judge

On 8 September 2018 the applicant left Lima, Peru by a flight bound for Sydney. He was in possession of two travel suitcases…

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 Urdanegui v The Queen

Details

AGLC: Urdanegui v The Queen [2021] NSWCCA 170
Case: [2021] NSWCCA 170
Decision Date: 23 July 2021

CaseChat Overview and Summary

In the case of Urdanegui v The Queen, the defendant, Urdanegui, was convicted of several criminal offences. He appealed against the sentence imposed by the court, arguing that the trial judge had failed to adequately consider the utilitarian value of his early guilty plea in the sentencing process. The appeal was heard in the High Court of Australia.

The primary legal issue before the court was whether the trial judge had erred in failing to appropriately account for the utilitarian benefits of the defendant's early guilty plea when determining the appropriate sentence. The court needed to assess whether this oversight constituted a significant error that warranted an appeal against sentence.

The High Court held that the trial judge had indeed failed to adequately consider the utilitarian value of the early guilty plea. This oversight was deemed significant, as the early guilty plea is a factor that can substantially impact the sentencing process by reflecting the defendant's acceptance of responsibility and potential mitigation of the severity of the punishment. The court found that this error amounted to a misdirection that affected the fairness and appropriateness of the sentence. Consequently, the High Court allowed the appeal against sentence.

The High Court ordered a re-sentencing of the defendant, directing the trial judge to properly consider the utilitarian value of the early guilty plea in the process. The court did not specify the new sentence but required that the re-sentencing process be conducted in accordance with the principles of fairness and justice, taking into account all relevant factors, including the defendant's early guilty plea.

Orders