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DPP (Cth) v Omar

DPP (Cth) v Omar

Case [2019] VSCA 188 23 August 2019

Appeal

Sentencing

Crown Appeal

Manifestly Inadequate Sentence

Residual Discretion

General Deterrence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0092

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Appellant
v
FARIQ ALDAKHIR BIN AQBAL OMAR	Respondent

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JUDGES:	MAXWELL P, T FORREST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 August 2019
DATE OF JUDGMENT:	23 August 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 188
JUDGMENT APPEALED FROM:	[2019] VCC 530 (Judge Wilmoth)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Drug importation – Commercial quantity of heroin – Sentence 5 years and 6 months’ imprisonment, non-parole period 3 years – Whether manifestly inadequate – Maximum penalty life imprisonment – Drug courier – Small financial reward – Whether small reward reduced culpability – Respondent was flight attendant – Whether aggravating factor – Hardship in custody – Isolation, separated from family – Consideration of sentencing standards – General deterrence – Appeal allowed – Resentenced to 8 years’ imprisonment with non-parole period of 5 years – Criminal Code Act 1995 (Cth) s 307.1.

CRIMINAL LAW – Appeal – Sentence – Crown appeal – Residual discretion – Purpose of Crown appeal – Guidance to sentencing courts – Whether sufficient to declare sentence manifestly inadequate without resentencing – No principled basis to do so – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)
For the Respondent	Mr D D Gurvich QC with Ms N D Kaddeche	May Monagle Lawyers

MAXWELL P
T FORREST JA
WEINBERG JA:

Summary

The respondent (‘FAO’) was a flight attendant for Malaysia Airlines. According to evidence given by his wife on the plea, the family was living comfortably in Malaysia on their combined salaries. Inexplicably, FAO agreed to be a drug courier or ‘mule’ in return for a payment of $500. He travelled to Australia with nearly double the commercial quantity (‘CQ’) of heroin concealed in packages under his clothing.

On his arrival in Melbourne, ‘rectangular bulges’ were visible in the front pockets of his trousers and under his vest. Nevertheless, he signed a Customs declaration form stating that he was not bringing into Australia any prohibited goods. He cleared Customs and was then seen on CCTV entering a public bathroom in the airport. When he emerged, the bulges were no longer visible. The heroin was discovered when his bags were searched.

FAO pleaded guilty to one charge of importing a commercial quantity of heroin. The maximum penalty for that offence is life imprisonment.[1] He was sentenced to five years and six months’ imprisonment, with a non-parole period of three years’ imprisonment.
[1]Criminal Code 1995 (Cth) s 307.1(1).

The Commonwealth Director of Public Prosecutions has appealed against the sentence on the ground that it is manifestly inadequate. Her notice of appeal contends that the sentence does not adequately reflect the nature and circumstances of the offending, or the maximum penalty. The sentence imposed is said to demonstrate that too much weight was placed on FAO’s guilty plea and his personal circumstances.

For reasons which follow,…

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 DPP (Cth) v Omar

Details

AGLC: DPP (Cth) v Omar [2019] VSCA 188
Case: [2019] VSCA 188
Decision Date: 23 August 2019

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions (Commonwealth) versus Omar, the Federal Court of Australia reviewed the sentence imposed on Omar for the importation of a commercial quantity of heroin. Omar, a flight attendant, was initially sentenced to 5 years and 6 months’ imprisonment, with a non-parole period of 3 years. The central issue before the court was whether this sentence was manifestly inadequate. The appeal raised questions about whether the small financial reward Omar received for his role as a drug courier could be considered as a mitigating factor, and whether his occupation as a flight attendant constituted an aggravating factor. Additionally, the court considered the hardship Omar experienced in custody, including isolation from his family.

The court delved into the principles of sentencing and the objectives of criminal punishment, particularly focusing on general deterrence and the appropriate punishment for serious drug offences. It was acknowledged that the maximum penalty for such an offence is life imprisonment, which highlights the seriousness of the crime. The court examined whether the sentence imposed was sufficient to reflect the gravity of the offence and to serve as a deterrent to others. It was also necessary to consider Omar's personal circumstances and the impact of imprisonment on him.

Upon reviewing the case, the court determined that the original sentence was indeed manifestly inadequate. The severity of the offence, coupled with the need for general deterrence, warranted a harsher penalty. Omar's role as a drug courier and his occupation were considered, but these factors did not sufficiently mitigate the seriousness of the crime. The court also acknowledged the personal hardship Omar faced in custody, yet this did not outweigh the need for an appropriate sentence. Consequently, the appeal was allowed, and Omar was resentenced to 8 years’ imprisonment, with a non-parole period of 5 years.

The court underscored the importance of adhering to sentencing standards and the purpose of the Crown appeal in providing guidance to future sentencing courts. It concluded that it was necessary to exercise its residual discretion by resentencing Omar to ensure the sentence appropriately reflected the nature of the offence and served its punitive and deterrent functions.

Orders