Ogc v R - [2016] NSWCCA 254

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: OGC v R [2016] NSWCCA 254
Hearing dates: 5 October 2016
Date of orders: 21 November 2016
Decision date: 21 November 2016
Before: Ward JA at [1];
Harrison J at [2];
R A Hulme J at [40]
Decision:
(1)   Grant leave to appeal against sentence.
(2)   Refuse leave to adduce evidence in the appeal.
(3)   Dismiss the appeal.

Catchwords:
APPEAL – sentence – appeal against sentence – whether manifestly excessive – whether sentencing judge failed to have proper regard for offender’s remorse and contrition – assistance – whether a miscarriage of justice occurred by reason of a failure to adduce evidence of assistance – whether evidence would have led to a different sentencing outcome
EVIDENCE – application for leave to adduce evidence on appeal – where a forensic decision made in court below not to call evidence of assistance – whether miscarriage of justice
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Cases Cited: Cornwell v R [2015] NSWCCA 269
Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
R v Abou-Chabake (2004) 149 A Crim R 417
R v Fordham (1997) 98 A Crim R 359
R v Goodwin (1990) 51 A Crim R 328
R v Thomas [2007] NSWCCA 269
Category: Principal judgment
Parties: OGC (Applicant)
Crown (Respondent)
Representation:
Counsel:
D Brezniak (Applicant)
N Williams (Respondent)
Solicitors:
Hedges Bhatty Solicitors (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2015/51509
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court at Gosford

Jurisdiction:

Criminal

Date of Decision:

1 September 2015

Before:

King SC DCJ

File Number(s):

2015/51509

Judgment

WARD JA: I agree with Harrison J.
HARRISON J: The applicant was committed for sentence on 5 June 2015 in the Gosford Local Court and came before the District Court at Gosford on 31 August 2015 to be sentenced for the ongoing supply of prohibited drugs between 23 December 2014 and 6 January 2015 contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is imprisonment for 20 years.
In sentencing the applicant, King SC DCJ took into account four further offences on a Form 1 as follows:

Supply prohibited drug, being 10.6 grams of methylamphetamine contrary to s 25(1) of the Act.

Possess prohibited drug, being 20.8 grams of cannabis, contrary to s 10(1) of the Act.

Possess unregistered firearm, being an air rifle, contrary to s 36(1) of the Firearms Act 1996.

Possess unregistered firearm, being an air rifle, contrary to s 36(1) of the Firearms Act 1996.

On 1 September 2015, the applicant was sentenced to 3 years imprisonment with a non-parole period of 2 years and 3 months commencing on 1 September 2015. The non-parole period expires on 30 November 2017. The applicant received a 25 percent discount for the utilitarian value of his guilty plea.
The applicant appeals against…

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 Ogc v R

Details

AGLC: OGC v The Queen [2016] NSWCCA 254
Case: [2016] NSWCCA 254
Decision Date: 21 November 2016

CaseChat Overview and Summary

In the case of Ogc v R, the appellant was convicted and sentenced by the Supreme Court of South Australia for serious criminal offences. The appeal before the Court of Criminal Appeal was against the sentence imposed, arguing that it was manifestly excessive and that the sentencing judge failed to properly consider the offender’s remorse and contrition. Additionally, the appellant sought leave to adduce evidence of assistance, which was not presented at the original trial, to argue that a miscarriage of justice had occurred due to the omission of this evidence.

The primary legal issues before the Court of Criminal Appeal were whether the sentence was manifestly excessive and whether the sentencing judge appropriately considered the appellant's remorse and contrition. Furthermore, the court had to determine if the failure to present evidence of assistance at the trial led to a miscarriage of justice, warranting the allowance of such evidence on appeal. This also involved assessing whether the absence of this evidence would have led to a different sentencing outcome.

The Court of Criminal Appeal reviewed the sentencing judge’s considerations and found that the sentence was not manifestly excessive. The court noted that the sentencing judge had taken into account the appellant’s remorse and contrition, as well as other relevant factors. Regarding the application for leave to adduce evidence of assistance, the court held that there was no miscarriage of justice, as the evidence was not such that it would likely have led to a different sentencing outcome. The appeal against the sentence was thus dismissed, and the original sentence upheld.

Orders