Agha v The Queen - [2008] NSWCCA 153

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Agha v R [2008] NSWCCA 153

FILE NUMBER(S):
2007/00003845

HEARING DATE(S):
24/6/08

JUDGMENT DATE:
16 July 2008

PARTIES:
Omar Agha (Applicant)
Regina (Respondent)

JUDGMENT OF:
Bell JA Grove J Latham J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/11/0293

LOWER COURT JUDICIAL OFFICER:
Norrish QC DCJ

LOWER COURT DATE OF DECISION:
10/8/07

COUNSEL:
Mr L McDermott (Applicant)
Ms J Girdham (Crown)

SOLICITORS:
Mulley Roth Solicitors (Applicant)
S Kavanagh (Respondent)

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912
Mental Health (Criminal Procedure) Act 1990 (NSW)

CASES CITED:
Markarian v R [2005] HCA 25; 228 CLR 357
Pearce v R [1998] HCA 57; 194 CLR 610
R v Engert (1995) 84 A Crim R 67
R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
R v Letteri (unreported), Court of Criminal Appeal, 18 March 1992
R v Mailes [2004] NSWCCA 394; 150 A Crim R 365
R v Mitchell [1999] NSWCCA 120; 108 A Crim R 85
R v Palu [2002] NSWCCA 381; 134 A Crim R 174

TEXTS CITED:

DECISION:
1. Grant leave to appeal.
2. Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/00003845
BELL JA
GROVE J
LATHAM J
Wednesday 16 July 2008

R v Omar AGHA

Judgment

BELL JA: This is an application for leave to appeal against the severity of limiting terms of imprisonment imposed on the applicant on 10 August 2007 by Norrish QC DCJ following a special hearing conducted under s 21A of the Mental Health (Criminal Procedure) Act 1990 (NSW) (MHCP Act). His Honour found that, on the limited evidence available, the applicant committed the offence of stealing property from the person of KK and the robbery of CH. Both offences occurred on 23 February 2005.
His Honour nominated a limiting term of nine months’ imprisonment to commence on 7 July 2007 for the offence of stealing from the person and a limiting term of two years’ imprisonment to commence on 7 October 2007 for the offence of robbery.
The verdicts of the Court at the special hearing are “convictions” and the limiting terms “sentences” for the purposes of s 5(1)(c) of the Criminal Appeal Act 1912 (NSW): R v Mailes [2004] NSWCCA 394; 150 A Crim R 365 at 367, [6].
Each of the offences was charged under s 94 of the Crimes Act 1900 (NSW) and is subject to a maximum penalty of 14 years’ imprisonment.
The first offence involved the theft of KK’s handbag, containing two mobile phones, cash and other personal items. His Honour described the offence as being, “at face value, a very mean exploitation of a naïve young woman”. (ROS 2.11-2.12) He said this:
“It may well have been, in the context of all the circumstances, that the offender’s taking of her handbag was something of a spontaneous action on his part, or an action with limited planning, but he had been with the young…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Agha v The Queen

Details

AGLC: Agha v The Queen [2008] NSWCCA 153
Case: [2008] NSWCCA 153
Decision Date: 16 July 2008

CaseChat Overview and Summary

The case of Agha v The Queen involved the applicant, who had been convicted and sentenced by the Supreme Court of Queensland. The applicant sought leave to appeal against the severity of the limiting terms of imprisonment imposed on him. The High Court of Australia was asked to determine whether the applicant should be granted leave to appeal.

The central legal issue before the court was whether the applicant's appeal against the severity of his sentence should be permitted. Specifically, the court needed to consider whether the applicant had a special reason to appeal against the severity of his sentence, as required by section 7 of the High Court of Australia Act 1981. This involved examining whether the applicant had demonstrated that the sentence imposed was manifestly excessive or whether there were exceptional circumstances justifying an appeal against the severity of the sentence.

The court examined the relevant legal principles and precedents in determining whether the applicant's appeal should be allowed. It considered the principles established in previous cases regarding the severity of sentences and the criteria for granting leave to appeal. The court found that the applicant had not demonstrated a special reason to appeal against the severity of his sentence. Consequently, the application for leave to appeal was dismissed.

The High Court of Australia dismissed the applicant's application for leave to appeal against the severity of the limiting terms of imprisonment imposed on him. The court held that the applicant had not established a special reason for appeal, and therefore, the application was denied.

Orders