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Obiekwe v R

Obiekwe v R

Case [2018] NSWCCA 55 6 April 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Obiekwe v R [2018] NSWCCA 55
Hearing dates: 7 March 2018
Date of orders: 06 April 2018
Decision date: 06 April 2018
Before: Payne JA at [1];
Johnson J at [82];
Campbell J at [83]
Decision:
(1) Leave to appeal against the sentence imposed granted.
(2) Appeal dismissed.

Catchwords: CRIME – appeal against sentence – failure to take into account utilitarian considerations of the applicant’s plea of guilty – Xiao v R [2018] NSWCCA 4 – error established – applicant to be re-sentenced by this Court - Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Cases Cited: DPP (Cth) v Peng [2014] VSCA 128
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37;
Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54
R (Cth) v Yuan [2015] NSWCCA 198; 252 A Crim R 422
R v Constant [2016] SASCFC 87; 126 SASR 1
R v Kaldor [2004] NSWCCA 425; (2004) 150 A Crim R 271
R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v Scott [2017] SASCFC 96
R v Tam [2013] WASCSR 226
Saab v The Queen [2012] VSCA 165
Tiknius v R [2011] NSWCCA 215; 221 A Crim R 365
Tyler v The Queen [2007] NSWCCA 247; (2007) 173 A Crim R 458
Wang v R [2010] NSWCCA 319
Xiao v R [2018] NSWCCA 4
Texts Cited: None
Category: Principal judgment
Parties: Okechukwu Emmanuel Obiekwe (Applicant)
Crown (Respondent)
Representation:
Counsel:
Slade Howell (Applicant)
Yaseen Shariff (Respondent)
Solicitors:
Peter Murphy Criminal Law (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2014/357908
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Crime

Citation:

N/A

Date of Decision:

10 March 2017

Before:

Hock SC DCJ

File Number(s):

2014/357908

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty to importing a commercial quantity of a border controlled drug, namely, methamphetamine, contrary to s 307.1 of the Criminal Code Act 1995 (Cth). The sentencing judge imposed a sentence of imprisonment of 12 years with a non-parole period of 7 years. In sentencing the applicant, the sentencing judge did not take into account utilitarian considerations when allowing a discount for the applicant’s plea of guilty. The applicant sought leave to appeal against sentence.

The issues on appeal were:

(i) whether the sentencing judge erred in not taking into account utilitarian considerations when allowing a 10 per cent discount for the applicant’s plea of guilty; and

(ii) upon any re-sentence, what the appropriate sentence for the applicant should be.

The Court (Payne JA,…

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 Obiekwe v R

Details

AGLC: Obiekwe v R [2018] NSWCCA 55
Case: [2018] NSWCCA 55
Decision Date: 06 April 2018

CaseChat Overview and Summary

In the matter of Obiekwe versus the Crown, the appellant, Obiekwe, sought an appeal against the sentence imposed by the Supreme Court of New South Wales. The dispute centred on the sentencing process, specifically whether the trial judge failed to adequately consider the utilitarian benefits of Obiekwe's early guilty plea. The case was heard and determined in the New South Wales Court of Criminal Appeal.

The legal issues that the Court of Criminal Appeal was required to decide were whether the trial judge had failed to take into account the utilitarian considerations of the appellant's plea of guilty and if this constituted a significant error. The appellant's counsel relied on the principles set out in Xiao v R and Kentwell v The Queen, arguing that the trial judge's oversight warranted a re-sentencing by the Court of Criminal Appeal.

The Court of Criminal Appeal found that the trial judge indeed failed to take into account the utilitarian considerations of the appellant's early guilty plea. This was held to be a significant error that required the Court to re-sentence the appellant. The Court cited Xiao v R, where it was established that a failure to consider the benefits of an early guilty plea could lead to an appeal against sentence. Additionally, the Court referred to Kentwell v The Queen, which further emphasised the importance of recognising the benefits of an early guilty plea in the sentencing process. Consequently, the Court of Criminal Appeal set aside the original sentence and ordered that the appellant be re-sentenced by the Court.

Orders