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

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

Although assisting to dismember and dispose of the body and clean the scene after witnessing a murder was a very serious offence, Mr Almirol's moral culpability was reduced by his significant intoxication, shock, fear of Hector Trocio, pre-existing friendship and cultural ties, illegal immigration status, subsidiary role, remorse, prior good character and prospects of rehabilitation. The asserted aggravating factors of being in company and planned or organised criminal activity were not made out. After allowing a 15% discount for the guilty plea, a sentence of 4 years and 3 months imprisonment with a non-parole period of 3 years and 2 months was appropriate.

Jurisdiction
Australia
Judgment Date
13 April 2007
Procedural Posture
Criminal Sentencing for Accessory After the Fact to Murder / Judgment on Sentence Following Majority Acquittal on Murder and Guilty Plea to Accessory After the Fact to Murder
Outcome
Sentenced to a term of imprisonment of 4 years and 3 months dating from 1 May 2004 and expiring on 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; first eligible for parole on 1 July 2007.
Legal Topics
['accessory After the Fact to Murder' 'plea of Guilty' 'objective Seriousness' 'aggravating Circumstances' 'mitigating Factors' 'non Parole Period']
['criminal Law' 'criminal Practice and Procedure' 'sentencing'] ['accessory After the Fact to Murder' 'plea of Guilty' 'objective Seriousness' 'aggravating Circumstances' 'mitigating Factors' 'non Parole Period']

Case Brief

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Procedural Posture

Criminal Sentencing for Accessory After the Fact to Murder / Judgment on Sentence Following Majority Acquittal on Murder and Guilty Plea to Accessory After the Fact to Murder

Legal Issues

  1. 1 ["What facts relevant to sentence were established in respect of Alejandro Almirol's conduct after the murder." 'Whether the offence was aggravated by being committed in company under s21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999.' 'Whether the offence was part of planned or organised criminal activity under s21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999.' 'What weight should be given to intoxication, fear, friendship, immigration status, remorse, prior good character, prospects of rehabilitation and the guilty plea.' 'Whether special circumstances justified varying the statutory ratio between the term of imprisonment and the non-parole period.']

Ratio Decidendi

Although assisting to dismember and dispose of the body and clean the scene after witnessing a murder was a very serious offence, Mr Almirol's moral culpability was reduced by his significant intoxication, shock, fear of Hector Trocio, pre-existing friendship and cultural ties, illegal immigration status, subsidiary role, remorse, prior good character and prospects of rehabilitation. The asserted aggravating factors of being in company and planned or organised criminal activity were not made out. After allowing a 15% discount for the guilty plea, a sentence of 4 years and 3 months imprisonment with a non-parole period of 3 years and 2 months was appropriate.

Court Disposition

Sentenced to a term of imprisonment of 4 years and 3 months dating from 1 May 2004 and expiring on 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; first eligible for parole on 1 July 2007.

Orders

  • ['Alejandro Almirol is sentenced to a term of imprisonment of 4 years and 3 months dating from 1 May 2004 and expiring on 31 July 2008.' 'A non-parole period of 3 years and 2 months is fixed dating from 1 May 2004 and expiring on 30 June 2007.' 'The first day upon which Alejandro Almirol will be eligible for parole...