Urriola v Regina [2012] NSWCCA 95

Urriola v Regina [2012] NSWCCA 95

The sentence for accessory after the fact to murder, although challenged by reference to statistics, other cases and the sentence imposed on Postlewaight, was not shown to be outside the proper sentencing range; the alleged toolbox error was treated as typographical and the contract killing finding was open. However, the sentencing judge erred by imposing a fixed term for count 2, because the offence carried a standard non-parole period and required a non-parole period under Crimes (Sentencing Procedure) Act 1999, s 45(1). The appropriate course was to grant leave, allow the appeal in part, and remit count 2 for re-sentence, leaving the sentence-structure issue to the resentencing exercise.

Jurisdiction
Australia
Judgment Date
17 May 2012
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Sentence Appeal From Sentence Imposed by Fullerton J
Outcome
Leave to appeal against sentence granted; appeal allowed in part; matter remitted to the trial judge for re-sentence on count 2.
Legal Topics
['accessory After the Fact to Murder' 'supply of a Commercial Quantity of Cocaine' 'manifest Excess' 'non Parole Period' 'standard Non Parole Period' 'remitter for Re Sentencing']
['criminal Law' 'sentencing' 'criminal Appeals'] ['accessory After the Fact to Murder' 'supply of a Commercial Quantity of Cocaine' 'manifest Excess' 'non Parole Period' 'standard Non Parole Period' 'remitter for Re Sentencing']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Sentence Appeal From Sentence Imposed by Fullerton J

Legal Issues

  1. 1 ['Whether the sentence imposed for accessory after the fact to murder was manifestly excessive.' 'Whether the sentencing judge erred in structuring the sentences such that the total non-parole period imposed was in excess of 90 per cent of the total sentence imposed.' 'Whether the 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).']

Ratio Decidendi

The sentence for accessory after the fact to murder, although challenged by reference to statistics, other cases and the sentence imposed on Postlewaight, was not shown to be outside the proper sentencing range; the alleged toolbox error was treated as typographical and the contract killing finding was open. However, the sentencing judge erred by imposing a fixed term for count 2, because the offence carried a standard non-parole period and required a non-parole period under Crimes (Sentencing Procedure) Act 1999, s 45(1). The appropriate course was to grant leave, allow the appeal in part, and remit count 2 for re-sentence, leaving the sentence-structure issue to the resentencing exercise.

Court Disposition

Leave to appeal against sentence granted; appeal allowed in part; matter remitted to the trial judge for re-sentence on count 2.

Orders

  • ['Grant leave to appeal against sentence.' 'Appeal allowed in part.' '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).']