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[2010] NSWSC 367
plaintiff. Urriola was sentenced to a non-parole period of 4 years and 6 months for accessory after the fact to murder, with a 1 year and 6 month balance, and a fixed term of 2 years and 6 months for...
Urriola was sentenced for helping Christiansen dispose of a murder victim's body and destroy the victim's car, and for participating in commercial cocaine supply. The judge regarded the accessory conduct as very serious, but considered the offender's youth, lack of criminal record, psychological vulnerability, guilty pleas and assistance to authorities. She did not decide whether substantial emotional harm to a homicide victim's family could aggravate this type of offence, because the statement before her did not establish the Crown's asserted level of harm. She imposed the sentences set out in the judgment and moderated their accumulation because she accepted that the offender's dependence on and regard for Christiansen motivated both offences.
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In [2010] NSWSC 367, the Supreme Court of New South Wales sentenced Marcelo Alejandro Urriola after guilty pleas to two offences: accessory after the fact to murder, contrary to s 349 of the , and supplying a commercial quantity of cocaine, contrary to s 25(2) of the [1].
No linked legislation citations have been extracted yet.
The murder occurred on 6 December 2008. Michael Christiansen shot Paul Elliot at close range in a rented unit. The judge found that Christiansen had been contracted to kill Elliot in connection with a drug debt [5]. Urriola was not found to have participated in the murder. That distinction is important: the sentencing task concerned his later assistance, not guilt as a murderer or co-offender in the killing [8].
Christiansen showed Urriola the toolbox containing Elliot's body on the evening of the murder. Urriola agreed to help dispose of it the next day [8]. On 7 December, Urriola helped move the toolbox to a boat, drilled holes in it to help it sink, and helped push it into deep water [11]-[12]. Later, he waited nearby while Christiansen set fire to Elliot's hire car [13]. The body and toolbox were not recovered [12].
The second count concerned cocaine supply. The sentencing judge found that Urriola had participated with Christiansen in supplying cocaine over a period before the murder [2]. The charged commercial quantity comprised cocaine found in Christiansen's storage unit and vehicle [15]. Urriola described his role as driving Christiansen to meet buyers and said he received between $200 and $500 a day [40]. The judge was not satisfied to the criminal standard that he also prepared the cocaine for supply [40].
The sentencing exercise also included sixteen offences on a Form 1, which the judge was invited to take into account when sentencing on the cocaine count [3]. They included offences concerning restricted substances, dealing with suspected proceeds of crime and possessing ammunition. The judgment says those matters were relevant to the sentencing exercise, but does not impose separate sentences for them [3], [42], [44].
After his arrest, Urriola made an induced statement describing his knowledge of the murder and disposal of the body, as well as his involvement in cocaine supply [18]-[19]. He later undertook to give evidence against Christiansen and Postlewaight, and against the person alleged to have contracted Christiansen to kill Elliot [20]. The judge accepted that the statement was comprehensive and truthful and that Urriola's evidence would materially strengthen the Crown case against Postlewaight [19], [21].
The central sentencing task was to assess the objective seriousness of the accessory offence. The judge emphasised that the offence covers a wide range of culpability. In some cases, spontaneous conduct in response to an unexpected situation may moderate culpability. But the authorities referred to in the judgment treated disposing of a body as more serious than cleaning a crime scene or disposing of a weapon or other evidence [28].
Urriola's conduct was not spontaneous. The disposal plan had been arranged in advance by Christiansen, including the purchase of the toolbox [29]. The judge accepted that Urriola did not know beforehand that Christiansen planned to murder Elliot and had no connection with the drug debt that motivated the murder. Once he learned of the killing, however, he willingly joined the disposal plan. He also signalled approval of the killing and its payment in drugs [8], [10], [29]. The judge found that he had time to reflect and withdraw, rather than being caught by surprise [29].
These facts led the judge to describe the accessory offending as “of a most serious kind”, while also finding it was not in the “worst case category” [30]. The assessment was not wholly aggravating. Urriola was young, had no criminal record, and had psychological vulnerability which the judge considered relevant to the degree of objective seriousness [30]. His diagnosed substance and adjustment disorders were not accepted as reducing the objective seriousness, although they were relevant to his rehabilitation prospects [41].
The judge separately assessed the cocaine offending. She noted the standard non-parole period of 10 years for supply of a commercial quantity, but considered it did little to guide the sentence in this case because Urriola had pleaded guilty and his offending, as assessed by her, fell outside the mid-range reference point [42]. His role was subordinate to Christiansen's direction and instruction [42]. The judge also considered the Form 1 offences. She regarded them as not insignificant, but observed that much of the restricted-substance offending related to Urriola's personal use and that the other offences appeared to reflect shared access to the storage unit rather than personal ownership of the items [44].
The victim impact statement did not resolve the question of whether emotional harm could aggravate this kind of offending. The Crown argued that the circumstances of the disposal had denied Elliot's mother the opportunity to provide a burial and had caused substantial emotional harm [25]. The defence relied on R v Previtera and the discussion in R v Tazanis [26]. Fullerton J did not decide that wider legal issue. She found that the statement itself did not claim substantial harm in the way the Crown contended, and there was no oral evidence to supplement it [27]. The issue therefore did not need to be determined for the sentence.
Assistance to authorities had a substantial effect on the first-count sentence. The judge considered the truthfulness, reliability and timing of Urriola's information, his undertaking to give evidence, and the disadvantages and risks associated with serving time on protection [46]-[48]. She treated the plea and assistance together as a composite discount, noting overlap with remorse and the utilitarian value of an early plea [47]. Applying the approach in SZ v R, she did not regard the case as exceptional enough for a discount exceeding 50 per cent [48]. She allowed 45 per cent, divided into 30 per cent for the pleas and associated factors, including past assistance, and 15 per cent for future assistance [49].
Finally, the judge considered the interaction of the two sentences. Although the offences were separate and distinct, she accepted that Urriola's dependence on Christiansen motivated his involvement in cocaine supply, while his misplaced regard for Christiansen motivated the accessory conduct [51]. She therefore moderated the degree of accumulation that might otherwise have applied.
This is a sentencing judgment applying the statutes and authorities before the court in 2010. It does not purport to alter the statutory framework. The judgment identifies the applicable maximum penalties and the 10-year standard non-parole period for the cocaine count, and discusses the role of standard non-parole periods as guideposts or benchmarks [3], [42]-[43].
The decision's treatment of victim impact material is deliberately limited. The judge recorded the parties' competing positions about s 27 and s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, but did not decide whether substantial emotional harm to family members could aggravate the accessory-after-the-fact offence [24]-[27]. It would therefore be inaccurate to treat Urriola as deciding that question either way. Its narrower point is that the evidence tendered in that sentencing exercise did not establish the particular aggravating feature the Crown asserted [27].
The judgment also applied the Court of Criminal Appeal's stated approach to offences taken into account on a Form 1, citing Re: Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002). The quoted passage explains that such offending can increase the weight given to personal deterrence and retribution, subject to limits including the maximum penalty for the primary offence and totality [42]. The judge then assessed the specific Form 1 offences and their relationship to Urriola's personal drug use and shared access to the storage unit [44].
Nothing in the supplied judgment establishes how the law stood before each cited authority or what legal changes occurred afterwards. The judgment is best read as a fact-specific sentencing application of the principles and legislation it identifies, rather than as a comprehensive account of the historical development of sentencing law.
At [23], the judge stated: “Life itself is what the law and the community prize above all else.” In context, this explains why the deceased's criminal associations or personal reputation did not make the killing less serious, or alter how the accessory conduct should be punished. The paragraph is a sentencing statement about the equal value the law places on human life.
At [28], the judge explained that accessory-after-the-fact offending spans different levels of moral culpability. She distinguished spontaneous assistance from planned or deliberate assistance, and noted that disposing of a body is treated more seriously than helping clean a scene or dispose of other evidence. The paragraph frames the factual assessment that follows; it does not say that every disposal of a body receives the same sentence.
At [29], the judge found that Urriola had time to reflect and withdraw after learning of the killing. In plain English, the court did not accept that he was simply swept into the disposal without an opportunity to make a choice. The same paragraph also links his criminal association with Christiansen to the seriousness of his offending.
At [30], the judge described the accessory offending as “of a most serious kind”, but not a worst-case example. That distinction captures the balance in the assessment: the planned disposal and destruction of evidence were very serious, while the offender's youth, lack of record and vulnerability moderated the assessment to some extent.
At [27], the judge declined to resolve the broader question about substantial emotional harm because the statement did not establish the specific level of harm asserted by the Crown. In plain English, the court dealt with the evidence before it rather than deciding a contested point that was not necessary to sentence Urriola.
At [49], the judge set out the 45 per cent composite discount. She allocated 30 per cent to the pleas and associated factors, including past assistance, and 15 per cent to future assistance. The paragraph makes clear that the judge also considered the need for the final penalty to reflect the objective criminality and purposes of sentencing.
At [51], the judge explained that she moderated accumulation because the accepted dependence on and regard for Christiansen were connected to both sets of offending. This was the reason given for the sentences' interaction, not a finding that the two offences were legally one offence.
The judgment is most relevant to sentencing situations involving an accessory after the fact who knowingly assists in disposing of a murder victim's body, particularly where the assistance is planned, voluntary and accompanied by efforts to destroy other evidence. The judge treated disposal of the body as more serious than assistance limited to cleaning a scene or disposing of a weapon or other evidence [28]-[29].
Its factual analysis is particularly specific to a person who learns of a completed murder, has an opportunity to reconsider, and nevertheless joins a pre-arranged disposal plan. Urriola was not found to have participated in the murder itself, but his approval of the killing and his assistance in sinking the body and burning the car informed the assessment of the accessory offence [8], [10]-[13], [29].
The sentencing discussion may also be relevant where an offender pleads guilty and gives a detailed account that assists the prosecution of alleged co-offenders, including through a future undertaking to testify. The judge assessed the truthfulness, reliability, timing and practical value of the assistance, as well as the risks and disadvantages associated with it [46]-[49]. The 45 per cent discount, however, was a case-specific assessment, not a fixed discount for comparable assistance.
The decision also addresses a combined sentencing exercise involving a commercial-quantity drug offence, Form 1 offences, and a relationship between the motivations for distinct offences [42]-[44], [51]. The facts relevant to that reasoning included a subordinate role in cocaine supply, personal use of many restricted substances, shared access to a storage unit, and dependence on the principal offender [40]-[44], [51].
The judgment should not be treated as deciding the victim-impact issue whenever a deceased person's body is not recovered. The judge did not determine the broader legal question, and her conclusion rested on the content of the statement and absence of supporting oral evidence in this case [25]-[27].
The supplied judgment contains no later judicial decisions or subsequent treatment of R v Urriola. Its case list records authorities available to Fullerton J in 2010, not later courts' responses to this judgment. It is therefore not possible, from this source alone, to say whether later courts followed, distinguished or questioned Urriola.
Within the judgment itself, Fullerton J used earlier authorities for defined purposes. She referred to R v Quach as an example involving a spontaneous reaction that could moderate moral culpability, and to R v Faulkner for a review of authorities concerning accessory conduct [28]. She applied R v Do to the relevance of the offender's criminal association with Christiansen [29]. She cited SZ v R when assessing the exceptional-case threshold for a composite discount exceeding 50 per cent [48].
The judgment discusses Previtera and Tazanis in connection with the contested question about emotional harm in homicide cases, but expressly leaves that question unresolved [26]-[27]. That treatment should not be recast as approval or rejection of either authority on that issue. The decision's own contribution on the point is limited to its finding that the evidence before it did not establish the asserted substantial harm.
The most explicit unresolved question is whether, and in what circumstances, s 21A(2)(g) permits a sentencing court to treat substantial emotional harm to family members as an aggravating feature in sentencing for offending connected with a homicide. Fullerton J declined to decide it because the statement did not support the Crown's contention and no oral evidence supplemented it [26]-[27].
The judgment also does not provide a general sentencing tariff for accessory-after-the-fact conduct. It stresses the wide variation in moral culpability and assesses the combination of planned assistance, body disposal, destruction of the car, approval of the killing, personal vulnerability and prior criminal association in this particular case [28]-[30]. The sentence and discount therefore should not be detached from those findings.
The precise effect of the 10-year standard non-parole period on a guilty plea and offending assessed as outside the mid-range is not developed into a general rule. The judge said it did little to inform the appropriate sentence in this case, while also citing the need to give standard non-parole periods genuine force as guideposts or benchmarks [42]-[43]. Further guidance would be needed to determine how that reasoning applies to different roles, quantities, periods of offending or plea circumstances.
Finally, the judgment records future assistance that Urriola had undertaken to provide, but does not provide later findings about whether that evidence was ultimately given or what effect it had in proceedings against the other people named [20]-[21], [48]-[49]. Nor does the supplied material show how later courts have treated the sentence or the unresolved victim-impact issue.
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On the charge of accessory after the fact to murder, I sentence you to a non-parole period of 4 years and 6 months, to date from 20 January 2009 and expiring on 19 July 2013, with a balance of term of 1 year and 6 months expiring on 19 January 2015. DECISION : On the charge of supply of a commercial quantity of cocaine I sentence you to a fixed term of 2 years and 6 months commencing on 20 January 2012. Accordingly you are eligible to be considered for release to parole on 19 July 2014.
CATCHWORDS : CRIMINAL LAW - sentence - accessory after the fact to murder - assisting to dispose of deceased's body - supply commercial quantity of cocaine - admissibility of victim impact statement - guilty plea - assistance to authorities
Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Leslie v R [2009] NSWCCA 203 Re: Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 R v Do, Court of Criminal Appeal, 7 May 1997, unreported R v Faulkner [2000] NSWSC 944 CASES CITED : R v Previtera (1997) 94 A Crim R 76 R v Quach [2002] NSWSC 1205 R v Tazanis [2005] NSWCCA 274 R v Youkhana [2004] NSWCCA 412 SZ v R [2007] NSWCCA 19; 168 A Crim R 249
PARTIES : The Crown Marcelo Alejandro Urriola
COUNSEL : C Maxwell QC (Crown) R Pontello (Offender)
SOLICITORS : Director of Public Prosecutions (Crown) R Hudson (Offender)
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
1 HER HONOUR: On 27 October 2009 the offender, Marcelo Alejandro Urriola, pleaded guilty in the Local Court to one count of accessory after the fact to the murder of Paul Elliot, contrary to s 349 of the Crimes Act 1900, and a second count of supply of a commercial quantity of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. He was committed to this Court for sentence. 2 The first count relates to the assistance the offender provided to Michael Christiansen to dispose of the body of the deceased and to destroy his car in circumstances where he knew that Christiansen had murdered the deceased the previous day by shooting him in the chest at close range. The second count involves a joint criminal enterprise in which the offender participated with Christiansen to supply cocaine over a period of weeks before the murder.
3 A maximum sentence of 25 years is provided for the first count and a maximum of 20 years for the second count to which a standard non-parole period of 10 years attaches in accordance with the table annexed to s 54 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act"). I have also been invited to take into account sixteen additional offences set out on the Form 1 when imposing sentence on the second count. The offences on the Form 1 include fourteen offences relating to the possession of a range of prescribed restricted substances, principally anabolic steroids or substances of a similar kind, also laid contrary to the Drug Misuse and Trafficking Act for which a maximum penalty of 2 years imprisonment is provided; one offence of dealing with property suspected of being the proceeds of crime pursuant to s 193C(1) of the Crimes Act for which a maximum penalty of 2 years imprisonment is provided; and possessing ammunition without being licensed to do so pursuant to s 65(3) of the Firearms Act 1996 for which a maximum penalty of 50 penalty units is provided. The facts for sentencing purposes
4 On the basis of the agreed facts and other evidence not the subject of contest, including an induced statement from the offender, the following facts are established for sentencing purposes.
The first count 5 On 6 December 2008 Christiansen murdered the deceased by shooting him in the chest at close range at a rented home unit in suburban Sydney having been contracted for that purpose by a person he was in a dispute with regarding a drug debt. 6 I am satisfied that the deceased travelled from Melbourne to Sydney earlier that day with his girlfriend with the intention of meeting that person with a view to discussing the dispute and that he was conscious of the risk that violence may be involved in that process. He left his girlfriend in a Sydney hotel at around 4pm indicating that he would return in an hour. He drove a hire car to the meeting. She did not see or hear from him after that time. His girlfriend did not report the deceased as a missing person before she returned to Melbourne two days later and, it would appear, did not report him as missing thereafter. Neither the fact that the deceased was murdered nor the circumstances surrounding the killing were publicly revealed until after the offender was interviewed by the New South Wales Crime Commission in February 2009, after his arrest in December 2008 for supplying the cocaine the subject of the second count and his remand in custody from that time. 7 After killing the deceased Christiansen put his body in a large metal toolbox which he had purchased for the purpose of transporting the body from the rented unit to his home in Annandale and thereafter for the purpose of disposing of the body. 8 On the evening of the murder the offender met Christiansen at his home by prearrangement. Christiansen told him that he had done a job with someone he described as "the Asian guy". The offender asked how much Christiansen had been paid for the job. Christiansen told him he had been paid with twelve pounds of methylampthemine. The offender was shown the toolbox containing the body of the deceased. Arrangements were then made for the offender to return the following day to assist Christiansen to transport the toolbox to a boat with the intention that the deceased's body be disposed of at sea. While the evidence does not permit of a finding that the offender was involved in the murder of the deceased he was clearly unmoved by the fact that Christiansen had been paid in a commercial quantity of a prohibited drug for his services as a contract killer. This is relevant to an assessment of the objective criminality comprehended by the offending on the first count.
9 On the morning of 7 December the offender accompanied Christiansen to a storage unit at Kennards Storage facility at Camperdown which, to the offender's knowledge, Christiansen had rented months earlier in a false name to store drugs, firearms and money. Christiansen had permitted the offender access to the unit for the purpose of storing his anabolic steroids and other restricted substances associated with bodybuilding. Once inside the unit Christiansen showed the offender the methylamphetamine he had been given in payment for murdering the deceased and the handgun that he had used for that purpose.
10 When Christiansen and the offender returned to Annandale they were met by Jeremy Postlewaight who arrived driving a truck towing a large motorboat. Sean Waygood arrived with Postlewaight. When Christiansen informed Waygood that he had killed someone and that he had to get rid of the body, the offender motioned with one of his hands to simulate discharging a firearm adding that Christiansen had "done good". This expression of approval is also relevant to an assessment of the objective criminality of the offending on the first count.
11 The offender assisted Christiansen and Postlewaight to transport the toolbox containing the deceased's body to the boat. Christiansen and Postlewaight travelled to Drummoyne towing the boat while the offender followed in Christiansen's van. 12 Christiansen, Postlewaight and the offender launched the boat into Sydney Harbour from Drummoyne and motored through Sydney Heads into water of an approximate depth of 130 metres. En route the offender used a cordless drill to drill two holes in the toolbox to facilitate it sinking quickly when pushed overboard. Postlewaight tied an anchor to the toolbox. Christiansen, Postlewaight and the offender lifted the toolbox and pushed it overboard. It sank within seconds. Not surprisingly, neither the metal toolbox nor the deceased's body have been recovered.
13 Christiansen, Postlewaight and the offender then returned to the boat ramp and made their way back to Christiansen's house. At around 9.30 that night Christiansen and the offender went to Alexandria where Christiansen had left the car the deceased had hired and driven to the unit where he was murdered. The offender waited in a laneway some distance from the deceased's vehicle while Christiansen set the vehicle alight.
14 On 16 December 2008 Christiansen was arrested at Kennards Storage facility. At this time police were unaware that the deceased had not been seen or heard of after leaving his girlfriend in the Sydney hotel. However, during the search of the storage unit police located numerous items of the deceased's personal property which, together with a police report in relation to the burnt hire car, motivated the police to enquire into the whereabouts of the deceased and thereafter to investigate his disappearance. 15 Inside a locked toolbox in the storage unit police found 38 plastic resealable bags, including heat-sealed plastic bags containing 37.5g of cocaine. A key found on Christiansen on his arrest opened the toolbox. A large quantity of money was also located at the bottom of the toolbox. In another unlocked toolbox a total of 52.1g of cocaine was located packaged into 49 bags. A further 237.98g of cocaine, in seven separate plastic containers and heat-sealed plastic bags was seized from Christiansen's vehicle. The combined weight of the cocaine in the unit and Christiansen's car was the subject of the second count on the indictment. For sentencing purposes the role that the offender played in the supply of cocaine will need to be assessed. Two further toolboxes were located in the storage unit containing numerous vials and tablets of anabolic steroids. The money and the anabolic steroids ground the majority of the charges on the Form 1. 16 On the afternoon of 16 December 2008 the offender arrived at Kennards Storage facility at which time he was also arrested. Thereafter he participated in an electronically recorded interview. He made partial admissions to possession of the steroids in the unit and to other restricted substances the police seized under warrant from the offender's home in Annandale. The offender was granted bail. He was not at that time questioned in relation to the cocaine seized from the storage unit or his knowledge of the murder of the deceased or the disposition of his body. 17 On 20 January 2009 the offender was charged with supplying a commercial quantity of cocaine referable to the combined quantity of the drugs found in the storage unit and Christiansen's car. At this time the offender participated in another electronically recorded interview but declined to answer questions in relation to the supply of cocaine. He was remanded in custody. 18 On 11 February 2009 the offender attended a meeting at the New South Wales Crime Commission where he was informed that he was suspected of being involved in the murder of the deceased. He was unaware at that time that Christiansen had already made full admissions to killing the deceased and disposing of his body. After receiving legal advice the offender agreed to provide an induced statement detailing what he knew of the murder of the deceased, and his own involvement in the disposal of his body, together with the roles played by Christiansen, Postlewaight and Waygood. He also detailed his involvement in the supply of cocaine, in particular between 1 December and 16 December 2008 (which is the subject of the second count) but also his involvement in an ongoing course of supply over the previous twelve months. This conduct is not the subject of any charge in this sentencing exercise. 19 I am satisfied that the induced statement represents a comprehensive and truthful account of the offender's criminal association with Christiansen, both in respect of Christiansen's drug dealings and his participation with Christiansen and others in the disposition of the body of the deceased after he was murdered. 20 On 12 March 2010 the offender signed an undertaking to give evidence against Christiansen and Postlewaight for offences arising out of the deceased's murder, and against Christiansen for supplying cocaine. I note that he has also given an undertaking to give evidence against the person who contracted Christiansen to kill the deceased. Although Christiansen has made a detailed statement to police effectively admitting his guilt (at least in so far as the murder of the deceased and the disposal of his body is concerned) he has not as yet entered a plea of guilty. Accordingly, the murder charge and the drug charge against Christiansen are still pending in the Local Court. 21 The Crown accepts that the case against Christiansen on both counts is strengthened by the offender's past and future assistance. In so far as the Crown case against Postlewaight is concerned, the Crown has evidence from two sources independent of the offender to support the charge pending against him for accessory after the fact to murder. I am nevertheless satisfied that the offender's evidence will also materially strengthen the Crown case against that offender.
22 On 17 March 2009 the offender was charged with accessory after the fact to the murder of the deceased. The admissibility of the victim impact statement from the deceased's mother 23 The fact that the deceased was a person who was involved in the commercial supply of drugs, and that he had a profile as a person who had connections with an established criminal milieu in New South Wales and Victoria, has no bearing on the way I am obliged to approach the punishment of this offender as a man who participated with the murderer in disposing of the deceased's body and any evidence associated with his death. Under our system of justice, just as no life is any more valuable than another, no killing of another is open to be regarded by the law as more or less serious because of the personal circumstances of the deceased, or what others think of that person, or for that matter because that person's contribution to community life is either commendable, on the one hand, or harmful on the other. Life itself is what the law and the community prize above all else. This is reflected in the fact that life imprisonment is the maximum penalty for murder and 25 years the maximum penalty for those that assist as accessories to that crime. 24 The Crown sought to tender a statement from the deceased's mother which was described in the body of the document as a victim impact statement in conformity with the procedure provided for in the Sentencing Act which permits a sentencing Court to have regard to the harm suffered by members of a person's immediate family in specified circumstances. The tender of the statement was objected to on the basis that s 27 of the Sentencing Act limits the admissibility of victim impact statements to offences that result in the death or actual physical harm to a person, or an offence that involves an act of actual or threatened violence. By definition the offence of accessory after the fact to murder does not meet either criterion. 25 In the alternative, the Crown relied on the statement to establish that the emotional harm and loss suffered by Mrs Elliot and her mother was substantial, thereby operating to aggravate the objective criminality in the charge of accessory after the fact to murder in accordance with s 21A(2)(g) of the Sentencing Act. It was submitted that the tender of the statement was an approach to proof of a feature of aggravation open to the Crown despite the statement being tendered in the form of a victim impact statement. The Crown submitted that the circumstances in which the offence was committed were such that it was intended that the deceased's body would never be recovered thereby effectively denying his mother the opportunity to provide a proper burial for her son. It is said that this feature of the offending caused emotional loss and harm of a different order altogether to the emotional impact on the family of a person who has been the victim of a homicide where the family have been able to provide a burial in accordance with their faith or secular wishes, and in this way the offending in this case satisfies the statutory requirement that the degree of emotional harm and loss is substantial. 26 Mr Pontello of counsel submitted that Mrs Elliot's statement is not admissible for the purposes of proving the feature of aggravation, R v Previtera (1997) 94 A Crim R 76 being authority for the proposition that the effect on others of the death of a person who is the victim of a homicide cannot operate to aggravate that offending. R v Tazanis [2005] NSWCCA 274 did not resolve the question whether s 21A(2)(g) permits a sentencing court to consider emotional harm as a feature of aggravation in a homicide despite a bench of five judges being convened in that case to reconsider Previtera and related cases. The Court did not consider that the issue arose on the appeal sufficiently directly to require reconsideration. 27 I do not consider the issue arises for resolution in this sentencing exercise. Despite the Crown seeking to persuade me that the extent of the emotional harm suffered by Mrs Elliot was substantial, her statement simply does not claim that the harm suffered is substantial in the way contended for. No oral evidence was called by the Crown to supplement her statement. As Hidden J observed in R v Youkhana [2004] NSWCCA 412 (a case that did not involve a murder) at [26]: "…before a judge could find "substantial emotional harm" within the meaning of s21A(2)(g), one would expect evidence specifically directed to that issue. Normally, that would be in the form of a victim impact statement. Whether that evidence established the aggravating factor would be a matter to be determined in the circumstances of the particular case. However, it would need to disclose an emotional response significantly more deleterious than that which any ordinary person would have when subjected to an armed robbery...". The objective criminality involved in the first count 28 It is critical to the sentence to be imposed on the first count that a careful assessment be made of the objective seriousness of the offending since it is well recognised that there is a wide variation in the degrees of moral culpability of persons convicted of the offence of accessory after the fact to murder. In some cases, the moral culpability is moderated where the offender's conduct can be said to be a spontaneous reaction to a critical or unexpected situation (as for example in the case of R v Quach [2002] NSWSC 1205), even though the assistance in that case involved the disposal of a body after a murder, is conduct which the authorities recognise as within the upper echelons of offending comprehended by the offence (see the review of those authorities in R v Faulkner [2000] NSWSC 944). The disposal of a body is also consistently regarded in the authorities as of greater seriousness than assisting a murderer to clean up a crime scene, or assisting by disposing of a weapon or other incriminating evidence associated with the murder. 29 In the present case the offender's conduct involves both disposing of the body of the deceased and the destruction of his car in circumstance where it could not be said that he was caught by surprise much less that he acted spontaneously. To the contrary. The manner in which the deceased's body was to be disposed of was planned and organised by Christiansen in advance of the murder, his purchase of the toolbox being ample evidence of that fact. While I accept that the offender was not made aware of Christiansen's plans to murder the deceased, and that he did not know the deceased or have any involvement in the drug debt that motivated the murder, when he was made aware that the deceased had been killed he voluntarily, indeed willingly agreed to provide assistance in disposing of the body and signalled his approval of the killing and that it had been paid for in drugs. I am in no doubt that despite the fact that the offender was apparently in Christiansen's thrall (and had been for some time as he progressively withdrew from family life into a daily routine coloured by habitual drug use, self enhancement and the lifestyle it spawns) he had more than sufficient time over the intervening evening on 6 December 2008 to reflect upon his conduct and its consequences and to withdraw from what had become by that time an entrenched criminal association with Christiansen. The fact that as at December 2008 the offender had by his own admission become personally involved in Christiansen's criminal activity as a drug supplier over a period of 12 months, despite the fact that his involvement fell short of participating as a co-offender in the murder, the seriousness of his offending as an accessory after the fact to murder is aggravated by his criminal association with Christiansen (see R v Do, Court of Criminal Appeal, 7 May 1997, unreported). 30 In the result, I regard the offending constituted by the first count as offending of a most serious kind. It is not, however, offending in a worst case category and the Crown does not contend otherwise. That said, the offender's youth, the absence of any criminal record coupled with a degree of psychological vulnerability motivating his misplaced loyalty and reverence for Christiansen, operate in combination to mitigate to some extent the objective seriousness in the offending comprehended by the first count. 31 I will return to consider the criminality constituted by the second count after considering the offender's subjective circumstances as it is in this connection that his association with Christiansen as the principal drug supplier is revealed.
32 The offender is currently 25 years of age. He has no criminal record. He comes from a loving family. All family members are highly supportive of him. 33 The offender's father gave evidence in the proceedings. He said that of his three sons the offender was the easiest to parent. He was obedient and respectful as a young boy and adolescent and well regarded by friends and the parents of his friends at school and in competitive sports. A number of testimonials were tendered confirming that fact. His father has visited him in gaol each weekend since his arrest. He continues to support his son but has made it clear that in addition to the penalty that I will impose upon him, upon his eventual release he will have to make amends to his family for the shame and suffering he has caused them. 34 The offender attended Our Lady of Good Counsel Primary School at Forestville until Year 5, before transferring to St Pius X College at Chatswood where he remained until the end of Year 9. He completed Year 10 at Killarney Heights High School. In order to advance his sports career as a professional rugby league player he transferred to Marist Brothers at North Sydney. However he left after only one term to work with his father in his landscaping business. His father described him as a hard worker. He then commenced an apprenticeship in the trade, during which time he also completed a certificate in Horticulture at a tertiary college. Upon becoming qualified he worked with a landscaping business at Newport Beach for eighteen months before his employment with KMD Landscapes where he remained for another eighteen months. A testimonial from the director of that company described the offender as a hard worker. He was surprised and saddened upon learning of the offender's criminal wrongdoing. 35 In 2004 the offender sustained a serious injury to his left knee, requiring a full knee reconstruction. This impacted on his ability to work as a landscaper. It also terminated what I accept was his potential career as a first grade rugby league player. The offender's father confirmed that his son's knee injury occurred at a time when major rugby league clubs were discussing his professional future. Despite being told by his specialist that with rehabilitation and commitment he could resume playing rugby league football the offender told Mr Tim Watson-Munro in a psychological assessment conducted on 10 March 2010, that he knew in himself that he would not regain his skill levels to compete at a professional level given the extended recuperation period required before he could recommence training.
36 The offender reported to Mr Watson-Munro that he suffered chronic pain following his knee injury and the reconstruction surgery. Mr Watson-Munro assessed the injury to be associated with a significant psychological overlay manifested by symptoms of depression, anxiety and diminishing self-esteem. The offender attended physiotherapy twice a week and was prescribed Panadeine Forte, however no psychotropic medication was prescribed. He was prescribed hormonal therapy by a general practitioner after the knee surgery and to enhance his physique. He also experimented with cocaine at this time. 37 It was against this background that the offender introduced himself to Christiansen at a gymnasium in Surry Hills with a view to training with him to eventually compete as a body builder.
38 In 2005 the offender moved out of his parents' home at Killarney Heights to Annandale in order to be closer to the gym and to Christiansen. It was at this time that he commenced to use steroids which he acquired through Christiansen to develop muscle bulk. Despite earning an income from landscaping on a casual basis and some casual work as a personal trainer, over the next twelve months the offender began to borrow money from Christiansen to supplement the cost of his training and drug use. He estimated that his informal debt to Christiansen was between $8,000 and $10,000 at the time of his arrest. During this period the offender rarely visited his parents. His father gave evidence that he was completely unaware of his son's use of steroids or cocaine. 39 It was not until 2008 however that the relationship between the offender and Christiansen developed to the point where, again under advice and instruction from Christiansen, the offender's use of steroids, both orally and intramuscularly, became habitual. At this time he also began using cocaine in significant quantities on the weekends which Christiansen made available being a supplier of the drug. The offender said he used steroids initially on an eight week cycle but soon progressed to using them on a daily basis without remission for the twelve months leading up to his arrest. At the same time he was becoming increasingly obsessed with his body image, training for three hours a day at the gymnasium. 40 In order to support the cost of his training and his escalating drug habit the offender assisted Christiansen to supply cocaine by driving him to suburban locations where the drug would be supplied directly to end users. He said the buyers would usually come out onto the street to meet Christiansen. He claimed to have had no involvement with Christiansen's business as a drug supplier other than that of a driver. While there is an available inference that he was also involved in preparing the cocaine for supply given the paraphernalia found in the storage unit, I am not able to be satisfied of that fact to the criminal standard. He said he received between $200 and $500 a day for assisting Christiansen in this way.
41 As a result of his escalating stimulant drug use the offender began to suffer from significant anxiety and intense paranoia. He was prescribed an anxiolytic medication. He also reported considerable sleep deprivation and depression which together with sustained drug use resulted in what Mr Watson-Munro described as a significant dislocation from reality. Mr Watson-Munro diagnosed a Substance Abuse Disorder (albeit in partial remission following the offender's incarceration) and a Chronic Adjustment Disorder according to DSM-IV-TR criteria, largely although not exclusively as a consequence, as I read his report, of the depression and despair he is currently experiencing as a remand prisoner on protection and the minimal intervention in the provision of psychological support or treatment in the prison system. I am not persuaded that either diagnosis operates in mitigation of the objective seriousness of his offending although they are relevant to an assessment of his prospects of rehabilitation. The objective criminality involved in the second count 42 The standard non-parole period of 10 years provided for the supply of a commercial quantity of a prohibited drug is, subject to the operation of s 54B of the Sentencing Act, open to be imposed for mid range offending after trial. Given that the offender has pleaded guilty and that in my assessment his offending is outside what is comprehended by offending in the mid range, given that he was at all times subject to the direction and instruction of Christiansen, a non-parole period of 10 years as a reference point does little to inform the appropriate sentence in this case. In sentencing for the second count I am, however, also obliged to take into account the criminality reflected in the offences listed on the Form 1 in accordance with the principled approach to s 32 of the Sentencing Act as mandated by the Court of Criminal Appeal in Re: Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 where Spigelman CJ said at [42]: "The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another." 43 It was noted by Hoeben J in Leslie v R [2009] NSWCCA 203 at [46]: "…This Court has on many occasions stressed the need for sentencing judges to not merely pay lip service to the existence of standard non-parole periods, but to genuinely give them force and effect as guideposts or benchmarks in determining appropriate sentences." 44 In this case whilst that further criminality is not insignificant given the quantities of restricted substances involved in each of fifteen separate counts, it is referable largely to the offender's possession of the substances for his personal use, which in this case is itself an aspect of the substance abuse disorder from which he was suffering at the time of the offending. In addition, the proceeds of crime charge and the possession of ammunition would appear to be based upon the fact that he shared custody and control over the storage unit in which the money and bullets were stored through his possession of the numeric code permitting access, and in this way shared possession with Christiansen, without this offender having any personal claim to ownership of those items. The plea of guilty and assistance to the authorities - sections 21A(3)(k), 21A(3)(m), 22 and 23 of the Crimes (Sentencing Procedure) Act
45 The Crown concedes that the offender is entitled to a reduction in his sentence by reason of his pleas of guilty and the assistance he has given in identifying co-offenders in the past and assistance he has agreed to give in the future by giving evidence for the Crown. Having regard to the operation of s 23(2) of the Sentencing Act it is necessary for me to consider a number of matters in determining the extent of the discount for assistance in these circumstances. 46 Section 23(2)(a) expressly permits me to take into account the effect of the offence on the family of the victim. In that limited connection I am permitted to take into account the fact that the deceased was an only son and grandson. I accept that the report of his death and the now public exposure of the circumstances in which it occurred, have caused Mrs Elliot and her mother intense suffering and that she feels the loss of her son on a daily basis. In accordance with s 23(2)(c) I also take into account what I have already accepted to be the truthfulness and apparent reliability of the information supplied by the offender in the induced statement and the timeliness of the provision of that information. In addition, because of the assistance he has provided to date and is willing to provide in the future, a substantial part of his sentence will very likely be served on protection. Evidence has been led to support the fact and extent of the disadvantage that he has suffered and will continue to suffer as a result. I also take that into account in determining the extent of the combined discount being at the same time mindful of the need to ensure that the sentences to be imposed fairly reflect the objective criminality in both offences, in that way meeting the objectives of sentencing expressly provided for in s 3A of the Sentencing Act. 47 In this case I have assessed the utilitarian value of the plea and the offender's assistance to the authorities in order to arrive at a compound or composite discount. This is in recognition of the fact that there is a significant overlap between the offender's willingness to cooperate with authorities, and what I accept as his genuine remorse and contrition, coupled with the utilitarian value inherent in what the Crown accepts was an early plea. 48 Consistent with what this Court has said in SZ v R [2007] NSWCCA 19; 168 A Crim R 249, it will only be in the exceptional case where a composite discount will exceed 50 per cent. I do not regard this case as exceptional despite the offender's early plea of guilty and despite the fact that when he was initially interviewed by the Crime Commission in February 2009 as a remand prisoner on the drug charge he provided a complete account of his own involvement in disposing of the deceased's body and nominated the roles that others had played, including what he knew of the murder of the deceased from what Christiansen had told him at a time when he could not have known that Christiansen had already admitted his involvement. The fact that Christiansen is most likely to plead guilty to the murder charge does not diminish the value of the assistance which I have already assessed as strengthening the Crown case against him and Postlewaight. I am also conscious that the decision to give evidence against the man who the offender misguidedly considered his mentor and his criminal associates exposes him to the risk of retribution. That said, I am satisfied that the authorities have taken positive steps to reduce that exposure whilst the offender is a serving prisoner. 49 In the result I propose to discount the sentence that would otherwise be imposed on the first count by 45 per cent, appointing 30 per cent for the pleas of guilty and the factors to which I have referred as inherent in it, inclusive of past assistance, and 15 per cent for future assistance. I am conscious that in discounting the sentence by this measure that the objective seriousness of the offence and the purposes of punishment must not be undermined, and that the reduced penalty is not one that is unreasonably disproportionate to the nature and circumstances of the offending.
50 After taking into account the views of Mr Watson-Munro to the effect that the offender has progressively developed insight into his actions and accepting that his attitude to his past offending is redolent of genuine shame and regret, that there remains a need for positive reinforcement of his changed attitude upon release. Taking into account the very considerable support he will have from family and friends as he makes his ultimate transition to life in the community, I am of the view that he has sound prospects of rehabilitation. Having taken this into account in the calculation of sentence along with his relative youth and prior good character I do not propose to alter the statutory ratio between the non-parole period and the balance of term.
51 While on a strict view the offending constituted by counts one and two are separate and distinct, such that an order for accumulation of the sentences in whole or in part would otherwise be warranted, I am satisfied that the offender's pathological dependence on Christiansen for the supply of various drugs of addiction motivated his involvement in the supply cocaine charge, just as his utterly misplaced regard and respect for this man motivated his involvement as an accessory to murder. In these circumstances I propose to moderate the degree of accumulation that would otherwise be applied. 52 After applying the combined discount of 45 per cent for the pleas of guilty and assistance Marcelo Alejandro Urriola on the charge of accessory after the fact to murder, I sentence you to a non-parole period of 4 years and 6 months, to date from 20 January 2009 and expiring on 19 July 2013, with a balance of term of 1 year and 6 months expiring on 19 January 2015.
On the charge of supply of a commercial quantity of cocaine I sentence you to a fixed term of 2 years and 6 months commencing on 20 January 2012.
Accordingly you are eligible to be considered for release to parole on 19 July 2014.
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R
Urriola
Urriola was sentenced to a non-parole period of 4 years and 6 months for accessory after the fact to murder, with a 1 year and 6 month balance, and a fixed term of 2 years and 6 months for supplying a commercial quantity of cocaine; he was eligible to be considered for parole on 19 July 2014.