Arenilla-Cepeda v R [2012] NSWCCA 267

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Arenilla-Cepeda v R [2012] NSWCCA 267 Hearing dates: 18 September 2012 (further written submissions closed 12 October 2012) Decision date: 13 December 2012 Before: Macfarlan JA at [1] Johnson J at [2] Davies J at [103] Decision: Leave to appeal against sentence granted and appeal allowed. Sentence imposed at the Sydney District Court on 29 October 2010 is quashed. In its place, the Applicant is sentenced for the offence of conspiracy to possess a commercial quantity of a border controlled drug, cocaine, to a term of imprisonment of 12 years and six months commencing on 22 September 2008 and expiring on 21 March 2021 with a non-parole period of seven years and nine months commencing on 22 September 2008 and expiring on 21 June 2016. The Applicant will be eligible for release to parole on 21 June 2016. Catchwords: CRIMINAL LAW - sentence - conspiracy to possess commercial quantity of border controlled drug (cocaine) - co-offenders sentenced by different judges - co-offender sentenced first in time - applicant's sentencing judge not informed of co-offender's sentence - whether applicant has legitimate sense of grievance - parity principle - different roles of offenders - different quantities of cocaine - strong desirability that related offenders be sentenced by same judge - necessity for remarks on sentence to be provided if to be sentenced by different judge - objective foundation demonstrated for applicant's sense of grievance - lesser sentence imposed Legislation Cited: Criminal Code Act 1995 (Cth) Drug Misuse and Trafficking Act 1985 Firearms Act 1996 Cases Cited: R v AB [2011] NSWCCA 229; 59 MVR 356 Lowe v The Queen [1984] HCA 46; 154 CLR 606 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274 R v Chandler [2012] NSWCCA 135 Tyler v R [2007] NSWCCA 247 Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540 Zreika v R [2012] NSWCCA 44 Jones v The Queen [1993] 67 ALJR 376 Rees v R [2012] NSWCCA 47 Rae v R [2011] NSWCCA 211 R v Nguyen [2010] NSWCCA 238; 205 A Crim R 106 Ng v R [2011] NSWCCA 227; 214 A Crim R 191 Green v The Queen [2011] HCA 49; 244 CLR 462 Texts Cited: --- Category: Principal judgment Parties: Wilbur Antonio Arenilla-Cepeda (Applicant) Regina (Respondent) Representation: Counsel: Mr DB O'Neil (Applicant) Mr CP O'Donnell (Respondent) Solicitors: Legal Aid NSW (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2009/11732 Publication restriction: --- Decision under appeal Citation: --- Date of Decision: 2010-10-29 00:00:00 Before: His Honour Judge Toner SC File Number(s): 2009/11732