Urriola v Regina

Court of Criminal Appeal (NSW)|2012-03-26|Before: Beazley JA, Harrison J, McCallum J, Fullerton J

Judgment 1BEAZLEY 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). 2The 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. 3Sixteen additional offences were taken into account by way of a Form 1, attaching to the offence of supply a commercial quantity of cocaine (count 2). The Form 1 offences were as follows: (a) 14 offences relating to the possession of prescribed restricted substances, contrary to the Poisons and Therapeutic Goods Act 1966, s 16. The maximum penalty for an offence under that section is 20 penalty units and or 2 years imprisonment. (b) An offence of dealing with property suspected of being the proceeds of crime contrary to the Crimes Act, s 193C(1). The maximum penalty for this offence is 2 years imprisonment. (c) An offence of possessing ammunition without being licensed to do so contrary to the Firearms Act 1996, s 65(3). This offence carries a maximum penalty of 50 penalty units. 4The applicant was sentenced by Fullerton J on 30 April 2010 as follows: Count 1: a non-parole period of 4 years 6 months to commence on 20 January 2009 and to expire on 19 July 2013, with a balance of term of 1 year 6 months to expire on 19 January 2015. Count 2: a fixed term of 2 years 6 months imprisonment to commence on 20 January 2012. 5The applicant sought leave to appeal against the sentence upon the following proposed grounds of appeal: "1. The Learned Sentencing Judge erred in that the sentence imposed for count 1 was manifestly excessive. 2. The Learned Sentencing Judge erred in structuring the sentences such that the total non-parole period imposed was in excess of 90% of the total sentence imposed. 3. The Learned Sentencing Judge erred by failing to impose a non parole period in relation to the second count in accordance with s.45(1) of the Crimes (Sentencing Procedure) Act 1999." Ground 3 was added by leave of the Court granted on the day of the hearing of the sentence appeal. 6Save for two factual matters that I will identify below, her Honour's summary of facts on the sentence hearing was not disputed. The following exposition of those facts is derived from her Honour's remarks. 7The accessory after the fact of murder offence arose out of assistance the applicant provided to a Michael Christiansen to dispose of the body of the deceased and to destroy the deceased's car in circumstances where the applicant knew that Christiansen had murdered the deceased the previous day. The offence of supply commercial quantity of cocaine involved a joint criminal enterprise in which the applicant participated with Christiansen to supply cocaine over a period of weeks before the murder. 8The more detailed facts of the accessory after the fact charge were as follows. On 6 December 2008, Christiansen murdered the deceased by shooting him in the chest at close range. The murder took place at rented home unit premises in a Sydney suburb. Her Honour found that Christiansen had been contracted to murder the deceased by a person with whom the deceased was in dispute regarding a drug debt. Her Honour characterised the murder as a contract killing. This is one of the two factual matters disputed by the applicant. Her Honour considered the fact that the applicant was unmoved by the murder being a contract killing was relevant to an assessment of the objective criminality of that offence. After killing the deceased, Christiansen put the body in a large metal toolbox that he had purchased for the purpose of transporting and disposing of the body. 9On the evening of the murder, by pre-arrangement, the applicant met Christiansen at Christiansen's home. Christiansen told the applicant that he had done a job for "the Asian guy". This person was "Tong". The applicant asked how much he had been paid for the job and Christiansen told him that he had been paid with 12 pounds of methylamphetamine. Christiansen showed the applicant the deceased's body in the toolbox. Arrangements were made for the applicant to return the following day to assist Christiansen to transport the toolbox to a boat with the intention of disposing of the deceased's body at sea. 10The following morning, the applicant accompanied Christiansen to a storage unit that Christiansen had rented some months earlier in a false name to store drugs, firearms and money. The applicant had been given access to the storage unit to store his own anabolic steroids and other restricted substances associated with bodybuilding. Christiansen showed the applicant the methylamphetamine that he had been given in payment for the killing and the handgun he had used for that purpose. 11Christiansen and the applicant returned to Christiansen's home, where they were met by Jeremy Postlewaight and Sean Waygood. Postlewaight had towed a large motorboat to Christiansen's home, for the purposes of transporting the toolbox containing the deceased's body out to sea. Christiansen informed Waygood that he had killed someone and had to get rid of the body. At this point, the applicant motioned with one of his hands to simulate the discharge of a firearm and commented that Christiansen had "done good". Her Honour considered this comment was also relevant to an assessment of the objective criminality of the offending on the first count. 12Christiansen travelled with Postlewaight in the truck towing the boat to Drummoyne. The applicant followed in Christiansen's van. The boat was launched into Sydney Harbour and Christiansen, Postlewaight and the applicant motored through Sydney Heads into water of an approximate depth of 130 m. En route, Christiansen 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 and the three lifted the toolbox and pushed it overboard. It sank within seconds and has not been retrieved. 13In her remarks on sentence, Fullerton J stated that the applicant had drilled the holes in the toolbox. This was the second factual error of which the applicant makes complaint. The Crown does not dispute this error. 14Later that night, the applicant accompanied Christiansen to where the deceased's car had been left and waited whilst Christiansen set the vehicle alight. 15Christiansen was arrested on 16 December 2008 at the storage facility. At that time, the police were unaware of the deceased's murder, or indeed that he was even missing. However, they found numerous items of the deceased's personal property in the storage unit which, together with a police report in respect of the burnt-out car, caused the police to carry out investigations into his disappearance. Quantities of cocaine and a large amount of money were also located in the storage unit. 16The applicant was also arrested on 16 December 2008 when he arrived at the storage facility. The applicant participated in an ERISP in which he made partial admissions in respect of the possession of steroids and other restricted substances stored in the storage facility. On 20 January 2009, the applicant was charged with supplying a commercial quantity of cocaine, being referable to the combined quantities of drugs found in the storage unit and in Christiansen's car. The applicant declined to answer questions in relation to that matter. 17On 11 February 2009, the applicant attended a meeting at the New South Wales Crimes Commission where he was informed he was suspected of being involved in the murder of the deceased. He did not know at this time that Christiansen had made full admissions in respect of the murder and the disposal of the body. The applicant provided an induced statement in which he provided details of his knowledge of the murder and his involvement in the disposal of the body, as well as details of the roles played by Christiansen, Postlewaight and Waygood. The applicant also provided details of his involvement in the supply of cocaine, particularly in the period 1 December to 16 December 2008, being the period of the charge on the second count. In addition, he provided details of his involvement in an ongoing course of supply over the previous 12 months. The trial judge found that the induced statement represented a comprehensive and truthful account of the offender's criminal association with his co-offenders. 18The applicant signed an undertaking to give evidence against Christiansen and Postlewaight. He also gave an undertaking to give evidence against the person who contracted Christiansen to kill the deceased. Her Honour accepted that the applicant's evidence would strengthen the case against each of these persons. 19The trial judge allowed a combined discount of 45 per cent for the applicant's early plea and assistance to authorities.

The applicant's subjective circumstances 20The trial judge set out the applicant's subjective circumstances in detail and, accordingly, it is sufficient to review them briefly for the purposes of these reasons. The applicant was born on 30 March 1984 and had no prior criminal record. He had been brought up in a loving and supportive family. As one of three children, his father gave evidence that the applicant had been the "easiest to parent". He was well-regarded at school and by friends. He was a promising footballer. He worked with his father in a landscaping business and completed a certificate in horticulture. Having obtained this qualification, the applicant then worked as a landscaper for different companies. 21An injury to be applicant's left knee effectively brought his potential football career to an end and also affected his ability to work as a landscaper. As a result of the knee injury, he was prescribed Panadeine Forte. He was also prescribed hormonal therapy to enhance his physique. The applicant also commenced to experiment with cocaine at this time. It was against this background that the applicant introduced himself to Christiansen at a gymnasium in Surry Hills with a view to training with him and eventually to compete as a bodybuilder. 22The applicant left home in 2005 to be closer to the gym and to Christiansen. He commenced to use steroids which he acquired through Christiansen. Over the succeeding 12 months, the applicant became financially indebted to Christiansen, borrowing from him to supplement the cost of his training and drug use. At the time of his arrest, the applicant estimated that he owed Christiansen between $8,000 and $10,000. The applicant saw little of his family during this period of time and his father was completely unaware of the applicant's use of steroids and cocaine. 23The applicant's relationship with Christiansen intensified in 2008 and pursuant to Christiansen's advice, he became an habitual user of steroids. His use of cocaine also increased significantly at this time. Christiansen was his supplier. In order to support the cost of his training and escalating drug habit, the applicant became Christiansen's driver on cocaine supply runs. He was paid between $200 and $500 a day for this assistance.

Trial judge's assessment of the seriousness of the offences 24The trial judge found, at [30], that the applicant's offending in respect of the accessory after the fact charge was of a most serious kind, but was not a worst case category. Her Honour found the applicant was a willing assistant, both in the disposal of the body and the destruction of the motor vehicle. The applicant had not been taken by surprise when Christiansen sought his assistance. He knew that Christiansen had murdered the deceased. The applicant also had an opportunity over the night of 6 December 2008 to withdraw from assisting Christiansen to dispose of the body the following day. Her Honour found that the applicant's conduct was mitigated by his youth and his absence of a prior criminal record, as well as his psychological vulnerability that motivated his loyalty to and reverence for Christiansen. 25Her Honour considered that the objective seriousness of the applicant's offending on the drug supply count was below the mid range, given that he was subject to Christiansen's "direction and instruction": see at [42] and [44]. Her Honour considered that the drug possession matters on the Form 1 related to the applicant's possession of substances for his personal use. Her Honour stated that the proceeds of crime charge and the possession of ammunition charge contained in the Form 1 appeared to be based on his access to the storage unit in which the money and bullets were stored. The access to the unit meant that he had shared custody and control of the contents of the unit. 26Her Honour accepted, at [47] and [50] respectively, that the applicant was remorseful and that there were "sound prospects of rehabilitation". Her Honour also took into account, at [46], that a substantial part of the sentence would be served on protection and would thus be more onerous.

Ground 1: the sentence imposed for the accessory offence was manifestly excessive. 27The applicant submitted that the sentence imposed for the offence of accessory after the fact to murder was manifestly excessive. He contended that a term of imprisonment of a non-parole period of 4 years 6 months and an additional term of 1 year 6 months, being the sentence imposed after the allowance of a discount of 45 per cent, represented a starting point for the sentence of a non-parole period above 8 years and an additional sentence of above 3 years. He contended that sentence, by comparison with other cases, was manifestly excessive.

Alleged factual errors by the trial judge 28Before considering the cases upon which the applicant relied in support of this ground of appeal, it is convenient to refer to the two factual errors the applicant alleged were made by the trial judge in her remarks on sentence. The first error was her Honour's statement that the applicant drilled the holes in the toolbox so that it would sink more easily. This was an error, as conceded by the Crown. Unlike other findings made by her Honour, she did not say, in respect of the applicant's involvement, that it was relevant to the assessment of the objective criminality comprehended by the offending in respect of this charge. 29For myself, I would have thought that had the applicant undertaken that activity, it would have been relevant to the objective criminality involved. The absence of any such comment by her Honour may indicate that her Honour's use of the word "offender" in making this finding was a slip and that she intended to refer to the offender Christiansen. 30The likelihood that this was so is gleaned from the discussion that arose during the sentence hearing. Her Honour drew attention to a discrepancy in the statement of agreed facts on sentence as between para [2], which stated that Christiansen drilled the holes and para [49], where it was stated the applicant had drilled the holes. Her Honour also drew attention to the fact that the applicant in his induced statement, at [41], stated that Christiansen had drilled the holes. Having brought the matter to the attention of the parties, the Crown Prosecutor informed her Honour that there was an error at para [49] of the statement of agreed facts and that it should be amended to read "[w]hilst travelling, Christiansen used a cordless drill". 31The Crown submitted that her Honour's remarks on sentence merely failed to reflect the correction made in the course of the sentence hearing and ought not to be considered an error in her Honour's understanding of the facts. I agree with this submission. Her Honour's error in referring to the applicant drilling the holes should be treated as a typographical error. 32The other alleged error was in her Honour's reference to the murder of the deceased as being a contract killing. The applicant submitted that the evidence established that the arrangement between Christiansen and Tong was that Christiansen was to provide protection to Tong when the deceased came to see him including, if necessary, murdering the deceased. In my opinion, such an arrangement could properly be described as a contract killing. Certainly the evidence supported a finding that Christiansen fully anticipated that he might murder the deceased during the course of the deceased's visit to Tong. He had brought a toolbox with him large enough to take the body and was at all times armed with a loaded firearm. 33The Crown submitted that the question of whether this was a contract killing was also ventilated in the sentence hearing. Her Honour remarked that "[i]t is a contracted execution, there is no question about that" and "he knew he had executed him and he knew he was paid for it". The Crown pointed out that counsel then appearing for the applicant did not cavil with her Honour's remarks. This submission reinforces the conclusion to which I have arrived, that there was no error in her Honour's finding that this was a contract killing.

Sentences imposed in other cases 34The applicant referred to sentencing statistics which indicated that the sentence imposed upon the applicant was significantly higher than the sentences generally imposed for this offence. His submission acknowledged the limitations of statistics in determining the proper sentence to be imposed in a particular case. The applicant also referred to decisions in the New South Wales Supreme Court where lesser sentences had been imposed for this offence in cases involving greater objective criminality. Those cases were R v Almirol (No 2) [2007] NSWSC 323; R v Galea [2003] NSWSC 465 and R v Faulkner [2000] NSWSC 944. 35In Almirol, the accessorial offence included assistance, albeit in a subsidiary role, in cutting up the deceased's body, disposing of the body parts and cleaning up the murder site. The trial judge considered that an appropriate sentence was 5 years, subject to a reduction for the accused's plea of guilty. 36In Galea, a head sentence of 7 years and a non-parole period of 4 years 6 months was imposed on the accused, who had assisted in the decapitation and the disposal of the deceased's body. 37In Faulkner, the accused was present when the murders were committed. He then moved the victims' cars, assisted in loading the bodies onto a trailer and in dumping and burning the bodies. He also kept a lookout over the site where the bodies had been dumped. A head sentence of 4 years 4 months was imposed with a non-parole period of 2 years 8 months. 38The applicant submitted that the objective seriousness of each of the offences in these cases was greater than in his case. 39The proper use that may be made of past sentencing decisions was considered recently by the High Court in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 where the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) endorsed the observations of Simpson J on this topic in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1. The plurality said: "[54] In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned'. [55] As the plurality said in Wong: '[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.'" (citations omitted) 40There are three other principles that are relevant. The first is the general principle that there is no single sentence that must be imposed. The sentence to be imposed depends upon the objective circumstances of the offence and the subjective circumstances of the offender: see Markarian v The Queen [2005] HCA 25; 228 CLR 357. The second is that the question for an appellate court is whether the sentence imposed is within the proper range: see R v Morgan (1993) 70 A Crim R 368 at 371 per Hunt CJ at CL. The third is the notion of consistency in sentencing, a matter adverted to in Hili, at [56], in the context of federal sentencing, but which is an important aspect of sentencing generally. 41In the present case, the applicant was one of three offenders involved as an accessory after the fact to the deceased's murder. At the time of his arrest, the offender Postlewaight was on parole in respect of a drug offence. Postlewaight was also sentenced by her Honour. In her remarks on sentence in respect of Postlewaight her Honour observed, at [7], that the commission of the offence whilst on parole aggravated the offending. In respect of the accessory after the fact offence, Fullerton J imposed a non-parole period of 6 years 6 months with a balance of term of 2 years. 42The Crown referred to the sentence imposed on Postlewaight as indicating first that the sentence imposed on the applicant was not beyond the range of the exercise of a proper sentencing discretion. The Crown also submitted that there was an aggravating element in the applicant's offending, namely the burning of the car, that was not present in Postlewaight's offending. 43However, there were aggravating factors in Postlewaight's offending in which the applicant did not participate. In particular, Postlewaight provided the use of the boat that was used to convey the body for disposal into deep waters. He also provided the truck that towed the boat. Subsequently, upon learning of Christiansen's arrest, he sought to hide or secrete the boat away by towing it to a rural property owned by his de facto partner. 44Postlewaight was sentenced after her Honour had sentenced the applicant. In her remarks on sentence on Postlewaight's sentencing, Fullerton J considered that the objective criminality of Postlewaight's offending was of the same order as that of the applicant, but that there were no factors in Postlewaight's case to mitigate the objective seriousness of his conduct to any significant degree. Her Honour stated that in the absence of mitigating factors, the sentence imposed on the applicant had little bearing on the sentence to be imposed upon Postlewaight. 45Postlewaight sought leave to appeal, including on the basis that the sentence imposed on the accessory after the fact offence was manifestly excessive: Postlewaight v R [2011] NSWCCA 279. Hislop J, with whom Whealy JA and Latham J agreed, reviewed a number of cases relied upon by Postlewaight to demonstrate that the sentence was outside a proper sentencing range for this offence and thus was manifestly excessive. His Honour, at [23], referred to the principle that an appellate court did not interfere with the sentence imposed by a primary judge merely because the court had a different view of the sentence that ought to be imposed. Sentencing error needs to be identified to warrant appellate interference: see R v Tait (1979) 24 ALR 473; 46 FLR 386 at 388. His Honour concluded that although the sentence imposed on Postlewaight was high, it was not so high as to demonstrate error. 46On this application for leave to appeal, the applicant argued that the objective criminality of his offending was less than that of Postlewaight's offending. The essential difference between the conduct of the two offenders was Postlewaight's conduct in agreeing to provide the boat as compared to the applicant's presence when Christiansen burned the deceased's car. In one respect, by providing the boat, Postlewaight's assistance involved a more active engagement in the disposal of the body than was the case of the applicant. Accompanying Christiansen whilst he burned the motor vehicle was a passive activity of a different order from Postlewaight's conduct. However, I do not consider that the criminality of each offender could thereby be differentiated. 47Accordingly, I would reject ground 1 of the proposed notice of appeal.

Ground 2: the learned 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 48The question of how the Court should deal with ground 2 depends on the outcome of ground 3, which can be dealt with briefly.

Ground 3: the learned sentencing judge erred by failing to impose a non-parole period in relation to the second count in accordance the Crimes (Sentencing Procedure) Act 1999, s 45(1) 49The Crown drew to the attention of the Court and the applicant the fact that the trial judge erred in imposing a fixed term in respect of the drug offence. A fixed term sentence is not available for an offence which carries a standard non-parole period: see Crimes (Sentencing Procedure) Act, s 45(1) and Table to Division 1A of Part 4, in which the offence of accessory after the fact of murder is a listed offence. Accordingly, ground 3 must be allowed. This result in effect determines what the Court should do in respect of ground 2. 50The Crown submitted that the Court should remit the matter to the sentencing judge so that a balance of term may be imposed: Criminal Appeal Act 1912, s 12(2). On remitter, the sentencing judge would be entitled to reopen the proceedings pursuant to the Crimes (Sentencing Procedure) Act, s 43 so as to impose a sentence in accordance with s 45: see Hristovksi v R [2010] NSWCCA 129. 51The Crown submitted alternatively that if this Court considered that her Honour erred in respect of ground 2, it would be relevant to the Court's determination as to whether a less severe sentence was warranted in law: Criminal Appeal Act, s 6(3). 52In my opinion, the matter should be remitted to the trial judge to attend to the proper sentencing of the applicant in respect of count 2, in accordance with s 45. As it would be inappropriate to speculate upon the sentence her Honour might impose in that circumstance, I am of the opinion, therefore, that this Court should not deal with ground 2, as her Honour will, in any event, be required to exercise her discretion in respect of the appropriate ratio between the non-parole period and the additional term on the re-sentence. 53Accordingly, the orders I propose are as follows: 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). 54HARRISON J: I agree with Beazley JA. 55McCALLUM J: I agree with Beazley JA.

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