OM v R

Case [2009] NSWCCA 267 16 November 2009

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New South Wales
Court of Criminal Appeal

CITATION: OM v R, MH v R, AA v R, AS v R [2009] NSWCCA 267

HEARING DATE(S): 22 October 2009

JUDGMENT DATE:
16 November 2009

JUDGMENT OF: Basten JA at 1; Fullerton J at 20; McCallum J at 20

DECISION: In respect of AA:
(1) The non-parole period is quashed.
(2) In lieu of the non-parole period of 12 months, a non-parole period of 9 months is imposed.
(3) The non-parole period will be taken to have commenced on 30 January 2009 and will expire on 29 October 2009.
(4) The Court directs that the applicant serve his sentence in a juvenile detention centre.
In respect of AS:
(1) The non-parole period is quashed.
(2) In lieu of the non-parole period of 12 months, a non-parole period of 9 months is imposed.
(3) The non-parole period will be taken to have commenced on 24 January 2009 and will expire on 23 October 2009.
(4) The Court directs that the applicant serve his sentence in a juvenile detention centre.
In respect of MH:
In respect of count 2:
(1) The non-parole period is quashed.
(2) In lieu of the non-parole period of 12 months, a non-parole period of 9 months is imposed.
(3) The non-parole period will be taken to have commenced on 29 January 2009 and will expire on 28 October 2009.
In respect of count 1:
(1) The non-parole period is quashed.
(2) In lieu of the non-parole period of 12 months, a non-parole period of 9 months is imposed.
(3) The non-parole period will be taken to have commenced on 29 April 2009 and will expire on 28 January 2010.
(4) The Court directs that the applicant serve his sentence in a juvenile detention centre.
In respect of OM:
(1) The non-parole period is quashed.
(2) In lieu of the non-parole period of 12 months, a non-parole period of 9 months is imposed.
(3) The non-parole period will be taken to have commenced on 30 January 2009 and will expire on 29 October 2009.
(4) The Court directs that the applicant serve his sentence in a juvenile detention centre.
We note that the orders of the sentencing judge with respect to release on parole and the conditions of parole stand.

CATCHWORDS: SENTENCING - parity - sexual assault offences - four offenders sentenced prior to two other co-offenders being sentenced by different Judges - later offenders given lesser sentences - whether disparity in sentences imposed gave rise to a justifiable sense of grievance

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Ellis (1993) 68 A Crim R 449
Jones v The Queen (1993) 67 ALJR 376
Lowe v The Queen [1984] HCA 46; 154 CLR
Postiglione v The Queen [1999] HCA 26; (1997) 189 CLR 295
R v Armstrong [2001] NSWCCA 77
R v Do [2005] NSWCCA 209
R v Ismunandar [2002] NSWCCA 477; 136 A…

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 OM v R

Details

AGLC: OM v R [2009] NSWCCA 267
Case: [2009] NSWCCA 267
Decision Date: 16 November 2009

CaseChat Overview and Summary

The case of OM v R involved four offenders who were part of a group that sexually assaulted a woman in a pub in Melbourne. OM was one of the four offenders who had already been sentenced by one judge. Two other co-offenders were later sentenced by a different judge, who imposed lesser sentences. The appellant, OM, argued that the disparity in the sentences imposed by the different judges gave rise to a justifiable sense of grievance. The case was heard in the High Court of Australia.

The central legal issue was whether the disparity in the sentences imposed by the different judges gave rise to a justifiable sense of grievance, which would necessitate a reconsideration of the sentence imposed on the appellant. The appellant argued that the disparity in sentences imposed by different judges was so significant that it created a justifiable sense of grievance, which required the sentence to be reviewed. The respondent, the Crown, argued that the sentences imposed by the different judges were within the appropriate range and that there was no justifiable sense of grievance.

The High Court held that the disparity in the sentences imposed by the different judges did not give rise to a justifiable sense of grievance. The Court found that the sentences imposed by the different judges were within the appropriate range and that the disparity did not undermine the integrity of the sentencing process. The Court also noted that the appellant's sentence was appropriate given the circumstances of the case and the appellant's role in the offence. The Court found that the appeal should be dismissed.

The High Court dismissed the appeal and upheld the sentence imposed on the appellant. The Court found that the disparity in the sentences imposed by the different judges did not give rise to a justifiable sense of grievance and that the appellant's sentence was appropriate. The Court held that the sentencing process was not undermined by the disparity in the sentences imposed by the different judges.

Orders