SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | OJIELUMHEN v THE QUEEN |
Citation: | [2014] ACTCA 28 |
Hearing Date(s): | 5 August 2014 |
DecisionDate: | 11 August 2014 |
Before: | Refshauge J, Ross J and Walmsley AJ |
Decision: | 1. The appeal be upheld. 2. The sentence imposed on Osaro Ojielumhen on 30 October 2013 be set aside. 2. The appellant be resentenced as follows: (i) For the offence of attempting to possess a marketable quantity of an unlawfully imported border controlled drug contrary to s 11.1 and s 307.9(1) of the Criminal Code a sentence of five years’ imprisonment with a non parole period of two and a half years. (ii) Taking into account the prior period in custody the sentence will commence on 27 January 2013. The sentence will end on 26 January 2018 and the non parole period will end on 26 July 2015. |
Category: | Principal Judgment |
Catchwords: | APPEAL – GENERAL PRINCIPLES – sentence manifestly excessive – possession of a marketable quantity of unlawfully imported border controlled drug – numerical sentence range proffered by counsel – Crown nominated sentence – discretion miscarried – appeal upheld – re-sentenced |
Legislation Cited: | Crimes Act 1914 (Cth) |
Cases Cited: | Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 |
Parties: | Osaro Ojielumhen (Appellant) The Crown (Respondent) |
Representation: | Counsel Self-represented (Appellant) Ms Haigh (Respondent) |
| Solicitors Self-represented (Appellant) Commonwealth Director of Public Prosecutions (Respondent) | |
File Number(s): | ACTCA 79 of 2013 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Neild AJ Date of Decision: 30 October 2013 Case Title: The Queen v Ojielumhen Court File Number(s): SCC 272 of 2011 |
REFSHAUGE J:
I have had the advantage of reading in draft the reasons of Ross J. I agree with those reasons and the orders he proposes.
ROSS J:
On 14 June 2013 Osaro Ojielumhen pleaded guilty to one count of attempting to possess a marketable quantity of an unlawfully imported border controlled drug contrary to ss 11.1 and 307.6(1) of the Criminal Code (Cth). On 30 October 2013 the appellant was sentenced by Neild AJ to six years’ imprisonment with a non parole period of four years. This is an appeal by Mr Ojielumhen against the sentence imposed by his Honour.
The circumstances of the offending are not in dispute. On 4 March 2011 a package said to contain a DVD player arrived in Australia from Thailand. The package was addressed to Fred Manyathale of Higgins ACT. The package was inspected by customs officers and found to contain a white powdery substance that returned a positive test when subjected to a presumptive test for cocaine.
The white powder was later found to weigh 325.1 grams. A sample…
Continue reading Ojielumhen v The Queen
Sign in free to access the full text
- AGLC
- Ojielumhen v The Queen [2014] ACTCA 28
- Case
- [2014] ACTCA 28
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the sentence imposed on the appellant was manifestly excessive, indicating a miscarriage of discretion by the sentencing judge. The Court was required to consider the appellant's offending conduct in light of the relevant sentencing principles and the specific circumstances of the case.
The Court reasoned that the sentence of seven years imprisonment with a non-parole period of four years was indeed manifestly excessive. It noted that the sentencing judge had erred in their assessment of the appropriate sentence, particularly in relation to the numerical sentence range that had been proffered and the Crown's nominated sentence. The Court applied the principle that a sentence must be proportionate to the gravity of the offence and the culpability of the offender.
Consequently, the appeal was upheld, and the original sentence was set aside. The appellant was resentenced to five years imprisonment with a non-parole period of two and a half years for the offence. The sentence was backdated to commence on 27 January 2013, reflecting the period already spent in custody.
Orders
Orders of the court
1. The appeal be upheld.
2. The sentence imposed on Osaro Ojielumhen on 30 October 2013 be set aside.
2. The appellant be resentenced as follows:
(i) For the offence of attempting to possess a marketable quantity of an unlawfully imported border controlled drug contrary to s 11.1 and s 307.9(1) of the Criminal Code a sentence of five years’ imprisonment with a non parole period of two and a half years.
(ii) Taking into account the prior period in custody the sentence will commence on 27 January 2013. The sentence will end on 26 January 2018 and the non parole period will end on 26 July 2015.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.