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Urriola v Regina

Urriola v Regina

Case [2012] NSWCCA 95 17 May 2012

Sentencing

Accessory after the fact to murder

Criminal Liability

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Urriola v Regina [2012] NSWCCA 95
Hearing dates: 26 March 2012
Decision date: 17 May 2012
Before: Beazley JA at [1];
Harrison J at [54];
McCallum J at [55]
Decision:
1. Grant leave to appeal against sentence;
2. Appeal allowed in part;
3. Remit the matter to the trial judge for re-sentence in respect of the offence charged in count 2: supply of a commercial quantity of cocaine contrary to the Drug Misuse and Trafficking Act 1985, s 25(2).

Catchwords:
CRIMINAL LAW - Application for leave to appeal against sentence - Crimes Act 1900, s 349 - Accessory after the fact to murder - Sentencing - Whether sentence manifestly excessive
CRIMINAL LAW - Application for leave to appeal against sentence - Drug Misuse and Trafficking Act 1985, s 25(2) - Sentencing - Whether sentencing judge erred by failing to impose a non-parole period in relation to the second count in accordance with Crimes (Sentencing Procedure) Act 1999, s 45(1) - Matter remitted to trial judge for re-sentencing in accordance with Crimes (Sentencing Procedure) Act 1999, s 45(1) - Appeal allowed in part
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Poisons and Therapeutic Goods Act 1966
Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Hristovksi v R [2010] NSWCCA 129
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Postlewaight v R [2011] NSWCCA 279
R v Almirol (No 2) [2007] NSWSC 323
R v Faulkner [2000] NSWSC 944
R v Galea [2003] NSWSC 465
R v Morgan (1993) 70 A Crim R 368
R v Tait (1979) 24 ALR 473; 46 FLR 386
Category: Principal judgment
Parties: Marcelo Urriola (Applicant)
Regina (Respondent)
Representation: Counsel:
I McClintock SC (Applicant)
S Bowers (Respondent)
Solicitors:
Mark Klees and Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/156643; 2009/157948
Publication restriction: No
Decision under appeal

Citation:

R v Marcelo Urriola

Date of Decision:

2010-04-30 00:00:00

Before:

Fullerton J

File Number(s):

2009/156643

Judgment

BEAZLEY JA: On 27 October 2009, the applicant pleaded guilty to the following counts on indictment:

(1) accessory after the fact to the murder of Paul Elliott contrary to the Crimes Act 1900, s 349;

(2) supply of a commercial quantity of cocaine contrary to the Drug Misuse and Trafficking Act 1985, s 25(2).

The offence of accessory after the fact to murder carries a maximum penalty of 25 years imprisonment. The offence of supply a commercial quantity of cocaine carries a maximum penalty of 20 years imprisonment. A standard non-parole period of 10 years is prescribed for this offence.

Sixteen additional offences were taken into account by way of a Form 1, attaching to the offence of supply a commercial quantity…

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 Urriola v Regina

Details

AGLC: Urriola v Regina [2012] NSWCCA 95
Case: [2012] NSWCCA 95
Decision Date: 17 May 2012

CaseChat Overview and Summary

The appellant, Urriola, made an application for leave to appeal against his sentence imposed by the Supreme Court of New South Wales. Urriola was found guilty of being an accessory after the fact to murder and of drug trafficking. He was sentenced to imprisonment terms for each offence. The High Court of Australia considered Urriola's application for leave to appeal against his sentence, focusing on whether the sentence was manifestly excessive and whether the sentencing judge erred by not imposing a non-parole period in relation to the drug trafficking offence.

The legal issues that the Court had to determine were whether the sentence imposed was manifestly excessive and whether the sentencing judge failed to impose a non-parole period for the drug trafficking offence as required by statute. The appellant argued that the sentence was manifestly excessive, while the Crown maintained that the sentence was appropriate. Additionally, the appellant claimed that the sentencing judge should have imposed a non-parole period for the drug trafficking offence in accordance with the statutory requirement. The Crown argued that the sentencing judge had not erred in this regard.

In its decision, the Court held that the appellant's sentence was not manifestly excessive, and therefore, the appeal against sentence on this ground was dismissed. However, the Court found that the sentencing judge had indeed erred by failing to impose a non-parole period for the drug trafficking offence. The Court noted that the statutory requirement under the Crimes (Sentencing Procedure) Act 1999, s 45(1) was not followed, and thus, the matter was remitted to the trial judge for re-sentencing in accordance with the statutory provision. Consequently, the appeal was allowed in part.

The Court made orders allowing the appeal in part, setting aside the sentence for the drug trafficking offence and remitting the matter to the trial judge for re-sentencing. The sentence for the accessory after the fact to murder offence was upheld.

Orders