Ocek v R

Case [2023] NSWCCA 308


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Ocek v R [2023] NSWCCA 308
Hearing dates: 7 July 2023
Date of orders: 6 December 2023
Decision date: 06 December 2023
Before: Ward P at [1];
Stern JA at [2];
N Adams J at [3].
Decision:

1.   An extension of time to bring this appeal is granted.

2.   Leave to bring this appeal is granted.

3.   The appeal is dismissed.

Catchwords:

CRIME – Appeals – Appeal against sentence – Where applicant pleaded guilty to 38 offences – Whether misstatement in the remarks on sentencing meant that sentencing judge proceeded on an incorrect basis and had capacity to influence the sentence – Whether expressions of frustration by the sentencing judge in the sentencing remarks at the way the charges had been brought affected the sentencing judge’s discretion

CRIME – Appeals – Appeal against sentence – Where evidence of assaults in custody was not before the Court at the sentencing hearing – Whether assaults in custody constituted extra-curial punishment

CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred by failing to take into account events that had not occurred at the time of sentencing

CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred in failing to find that delays in the police investigation amounted to a mitigating factor in sentencing

CRIME – Appeals – Appeal against sentence – Where there was material before the Court at the sentencing hearing – Where the sentencing judge had made factual findings adverse to the applicant – Whether the sentencing judge had failed to take into account relevant material – Whether the findings made by the sentencing judge were reasonably open

CRIME – Appeals – Appeal against sentence – Where applicant pleaded guilty to 38 offences – Whether the indicative sentences for six counts were manifestly excessive – Whether manifestly excessive sentences on some of the 38 counts was sufficient to establish that the overall effective sentence was manifestly excessive

CRIME – Appeals – Appeal against sentence – Where charges were initially brought under the wrong section of legislation – Where that was not brought to the applicant’s knowledge by his lawyers – Where those charges were later withdrawn – Where the applicant’s lawyers had advised him against tendering certain evidence – Whether there had been a miscarriage on the basis of incompetence of counsel

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW), s 12C

Court Suppression and Non-publication Orders Act 2010 (NSW)

Crimes Act 1900 (NSW), ss 66C(1)(3), 66EA (1), 66EB(2), 61J(1), 249K(1)(a)

Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 1A, s 53A

Criminal Appeal Act1912 (NSW), s 6(1)

Mutual Assistance in Criminal Matters Act 1987 (Cth)

Cases Cited:

AB v R [2014] NSWCCA 339

Ahmu v R [2014] NSWCCA 312

Azzopardi v R [2019] NSWCCA 306

Benn v R [2023] NSWCCA 24

Burr v The Queen [2020] NSWCCA 282; (2020) 285 A Crim R 504

Cahyadi v R

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Ocek v R [2023] NSWCCA 308
Case
[2023] NSWCCA 308
Decision Date

CaseChat Overview and Summary

In the case of Ocek v R, the applicant appealed against his sentence after pleading guilty to 38 offences. The primary issues before the court were whether the sentencing judge had proceeded on an incorrect basis, whether expressions of frustration by the judge had affected his discretion, and whether there were other errors in the sentencing process. The court had to consider whether the evidence of assaults in custody constituted extra-curial punishment, if delays in the police investigation were a mitigating factor, and if the sentencing judge had erred by not taking into account certain events and material.

The court examined whether the sentencing judge's remarks contained misstatements that led to an incorrect basis for the sentence, and if the judge's expressions of frustration about the way charges were brought could have influenced the sentence. It also addressed whether the assaults in custody constituted extra-curial punishment, and if the judge should have considered delays in the police investigation as a mitigating factor. Additionally, the court scrutinised whether the sentencing judge had failed to take into account relevant material, and if his findings were reasonably open. The court also assessed whether the indicative sentences for six counts were manifestly excessive and if this, combined with other factors, made the overall effective sentence manifestly excessive.

The court concluded that the sentencing judge had not proceeded on an incorrect basis and that his expressions of frustration did not influence his discretion. It held that the assaults in custody did not constitute extra-curial punishment and that the delays in the police investigation were not a mitigating factor. The court found that the sentencing judge had taken into account relevant material and that his findings were reasonably open. Regarding the indicative sentences, the court determined that they were not manifestly excessive and that this did not make the overall effective sentence manifestly excessive. The court ultimately dismissed the appeal, maintaining the original sentence imposed by the sentencing judge.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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