Bilal BADR-EDDEEN Omari v Adam Robert Moore - [2013] ACTSC 9

BILAL BADR-EDDEEN OMARI v ADAM ROBERT MOORE
[2013] ACTSC 9 (4 February 2013)

APPEAL AND NEW TRIAL – Appeal from the ACT Magistrates Court – Appeal against conviction – Specific error – Whether evidence supported findings of Magistrate – Findings supported by evidence despite impossibility of accurately determining speed of deceased at impact – Appeal dismissed

APPEAL AND NEW TRIAL – Appeal from the ACT Magistrates Court – Appeal against sentence for Negligent Driving Causing Death – Whether sentence manifestly excessive – No reasons given for sentencing appellant to imprisonment other than a general reference to the principles of general and specific deterrence – No reasons given by Magistrate for the rejection of alternative sentencing options – Degree of negligence toward the bottom of the range for an offence under s 6 (1) of the Road Transport (Safety and Traffic Management) Act – Sentence was manifestly excessive – Appeal upheld

APPEAL AND NEW TRIAL – Appeal from the ACT Magistrates Court – Appeal against sentence for Driving whilst Disqualified – Whether sentence manifestly excessive – Appellant’s subjective circumstances do not justify imposition of maximum penalty – Magistrate in error to apply maximum sentence – Sentence was manifestly excessive – Appeal upheld

APPEAL AND NEW TRIAL – Appeal from the ACT Magistrates Court – Appeal against sentence – GBO as part of suspended sentence breached – Whether sentence manifestly excessive – Appellant did not appeal from the suspended sentences of imprisonment – No basis for re-examination of suspended sentences – Magistrate had discretion either to impose the suspended sentences, or to re-sentence – Magistrate not in error to impose sentences – Sentences not manifestly excessive – Appeal dismissed

Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 6 (1)
Crimes (Sentence Administration) Act2005 (ACT), s 110 (2)
Crimes (Sentencing) Act 2005 (ACT), s 10 (2)
Road Transport (Driver Licensing) Act1999 (ACT), s 32

Connelly v Allan [2011] ACTSC 170
DPP v Yeo [2008] NSWSC 953
House v The King (1936) 55 CLR 499
R v Antoniazzo [2010] ACTSC 36
R v Evans (unreported, ACTSC, Higgins CJ, 21 June 2005)
R v Griffith [2009] ACTSC 114
R v Murray [2008] ACTSC 115

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 18 of 2012
Judge: Burns J
Supreme Court of the ACT

Date: 4 February 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 18 of 2012
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:BILAL BADR-EDDEEN OMARI
Plaintiff

AND: ADAM ROBERT MOORE
Defendant

ORDER

Judge:  Burns J
Date:  4 February 2013
Place:  Canberra

THE COURT ORDERS THAT:

The appeal against conviction with respect to the charge of negligent driving causing death is dismissed.

The sentences of imprisonment imposed by the sentencing Magistrate on charge

CC 10/9730 and CC 11/8727 are set aside.

The sentences of imprisonment made by the sentencing Magistrate as charges

CC 11/357 and CC 11/360 are confirmed, but the orders of…

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.

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Details

Case: [2013] ACTSC 9
Decision Date

CaseChat Overview and Summary

Bilal Badr-Edeen Omari appeals against his conviction and sentences in the ACT Magistrates Court. Omari was charged with negligent driving causing death, driving while disqualified, and breaching two good behaviour orders. The appeal against conviction was dismissed as the evidence was sufficient to support the findings of the Magistrate. The appeal against the sentences for negligent driving causing death and driving while disqualified was upheld as the sentences imposed were manifestly excessive. The Magistrate did not provide any reasons for sentencing Omari to imprisonment other than a general reference to the principles of general and specific deterrence. Additionally, no reasons were given by the Magistrate for the rejection of alternative sentencing options. The degree of negligence towards the bottom of the range for an offence under s 6(1) of the Road Transport (Safety and Traffic Management) Act and the appellant's subjective circumstances did not justify the imposition of the maximum penalty. The sentences imposed by the Magistrate were manifestly excessive. The sentences of imprisonment imposed by the sentencing Magistrate on charge CC 10/9730 and CC 11/8727 are set aside. The sentences of imprisonment made by the sentencing Magistrate as charges CC 11/357 and CC 11/360 are confirmed, but the orders of the learned Magistrate are varied such that these sentences commenced on 14 September 2011. The parties will be heard further on the issue of re-sentencing the appellant.

Orders