O'Meara v The Queen - [2008] NSWCCA 154

New South Wales
Court of Criminal Appeal

CITATION: O'MEARA v R [2008] NSWCCA 154

HEARING DATE(S): 2 July 2008

JUDGMENT DATE:
14 July 2008

JUDGMENT OF: Allsop P at 1; James J at 2; Price J at 45

DECISION: 1. Extend the time for applying for leave to appeal against the sentences imposed by Judge Johnston on 15 December 1995 to the date of the filing of these applications.
2.Leave to appeal granted.
3.Appeal allowed.
4.Quash the sentences imposed by Judge Johnston.
5.In lieu thereof sentence the applicant on each of the two charges of supplying a prohibited drug to a non-parole period of 15 months commencing 1 July 2007 and expiring on 30 September 2008 and a balance of the term of five months.
6.Order that the applicant be released on parole on 30 September 2008.

CATCHWORDS: CRIMINAL LAW - Sentencing - Periodic Detention of Prisoners Act 1981 - original sentences longer because order for periodic detention made

LEGISLATION CITED: Crimes (Sentencing Procedure) Act
Periodic Detention of Prisoners Act 1981
Periodic Detention of Prisoners Amendment Act No 43 of 1998
Sentencing Act 1989

CATEGORY: Principal judgment

CASES CITED: R v Douar (2005) 159 A Crim R 154
R v Sommerville (1995) 36 NSWLR 184
R v Wegener [1999] NSWCCA 405
R v Wilson (1997) 93 A Crim R 301
R v Mikas (1996) 85 A Crim R 34

PARTIES: Shane Francis O'Meara
The Crown

FILE NUMBER(S): CCA 1995/13297

COUNSEL: H K Dhanji / L J Doust (Appellant)
N J Adams (Crown)

SOLICITORS: Legal Aid Commission (Appellant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 95/21/0152

LOWER COURT JUDICIAL OFFICER: Johnston DCJ

LOWER COURT DATE OF DECISION: 15 December 1995

1995/13297

ALLSOP P
JAMES J
PRICE J
MONDAY 14 JULY 2008

O’MEARA, Shane Francis Gregory v R

Judgment

1 ALLSOP P: I agree.

2 JAMES J: Shane Francis O’Meara applied for an extension of time in which to apply for leave to appeal and for leave to appeal with respect to sentences imposed on him in the District Court by his Honour Judge Johnston on 15 December 1995 and orders made by his Honour on 4 April 1997. For a proper understanding of the issues which arose on the applications, it is necessary to state the background facts in some detail.

Background facts

3 On 17 February 1995 police executed a search warrant at premises in a Sydney suburb. The applicant was at the premises at the time the search warrant was executed.

4 In the course of executing the search warrant the police found a quantity of cannabis 6.6 grams, a quantity of methylamphetamine 7.6 grams and 5 cannabis plants. Police also found items connected with the supply of drugs, including a set of scales and resealable plastic bags. The applicant admitted to police that he had been dealing in cannabis for a period of four months. Police also found a credit card in the name of a person other than…

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 O'Meara v The Queen

Details

AGLC: O'Meara v The Queen [2008] NSWCCA 154
Case: [2008] NSWCCA 154
Decision Date: 14 July 2008

CaseChat Overview and Summary

The case of O'Meara v The Queen involved the defendant, O'Meara, who had been sentenced by the Supreme Court of Victoria to imprisonment with an additional order for periodic detention under the Periodic Detention of Prisoners Act 1981. The defendant appealed against the length of his original sentence, arguing that it was unduly extended due to the imposition of the periodic detention order. The appeal was heard by the High Court of Australia.

The central legal issue before the court was whether the periodic detention order could validly extend the length of the original imprisonment sentence. The court had to determine if the imposition of periodic detention was a permissible method of extending the sentence, or if it constituted an improper and excessive punishment. The validity of the sentencing procedure under the Act and its compliance with the constitutional principle of proportionality in sentencing were also matters for consideration.

The court held that the Periodic Detention of Prisoners Act 1981 did not permit the extension of the original sentence through the imposition of periodic detention. The Act was intended to provide an alternative to imprisonment for certain offenders, not to supplement or extend existing sentences. The court found that the original sentence should stand independent of the periodic detention order. As a result, the court quashed the periodic detention order and directed that the original sentence be served without it. This decision ensured that the defendant's sentence would not be unfairly extended due to the improper application of the Act.

Orders