Omar, O. v Lanham, G.E - [1985] FCA 598

Re: OMAR OMAR
And: GEOFFREY EDWARD LANHAM
No. ACT G38 OF 1985
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Davies J.
Kelly J.
Beaumont J.

CATCHWORDS

Criminal Law - appeal on sentencing - whether lack of parity of sentences - weight to be given to sentence imposed by magistrate - "principle" that minimum sentence possible should be imposed - weight to be given to family circumstances of appellant.

Statute - s.17A(1) Crimes Act, 1914 directory not mandatory provision.

Crimes Act, 1900 (N.S.W.) in its application to the Australian Capital Territory ss.188, 477.

Crimes Act, 1914 s.17A

Attorney-General (N.S.W.) v. Dawes (1976) 1 N.S.W.L.R. 242

House v. The King (1936) 55 C.L.R. 499

R. v. Tait & Bartley (1979) 24 ALR 473

Lowe v. R. (1984) 54 ALR 193

Shannon (1979) 21 S.A.S.R. 442

Schumacher (1981) 3 A.Crim.R 441

R. v. J (1982) 49 ALR 376

Whittaker v. The King (1928) 41 C.L.R. 230

The Queen v. Wirth (1976) 14 S.A.S.R. 291.

HEARING

CANBERRA
#DATE 26:11:1985

ORDER

The appeal be dismissed.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

The appellant, Omar Omar, appeals against a sentence of nine months' imprisonment imposed by the Supreme Court of the Australian Capital Territory on 11 July 1985.

On 24 November 1983, on the information of the respondent, Geoffrey Edward Lanham, an officer of police, the appellant was charged under s.188 of the Crimes Act, 1900 (N.S.W.) in its application to the Territory ("the Act"). That provision has since been amended but at the date of the offence charged it read:

"188. Receiving where principal quilty of felony. Whosoever receives any property, the stealing whereof amounts to felony, knowing the same to have been stolen, shall be guilty of felony, and may be indicated, either as an accessory after the fact, or for a substantive felony, and in the latter case whether the principal felon has been previously tried or not, or is amenable to justice or not, and in either case shall be liable to penal servitude for ten years."

The charge was that between 24 December 1982 and 13 March 1983, the appellant did receive a turntable, an amplifier, a tuner, a cassette deck and an equaliser ("the sound equipment") the property of James David Bourke Young, before then stolen, and that when he received the sound equipment, he knew the same to be stolen. The charge was dealt with summarily pursuant to s.477 of the Act. By s.477(2), the maximum penalty for an offence dealt with pursuant to s.477(1) is imprisonment for a term not exceeding two years or a fine not exceeding $2,000.

On 31 July 1984, the appellant was convicted of the offence charged by Mr. Nicholl, S.M. The learned Magistrate, acting pursuant to s.556B of the Act, without passing sentence, ordered that the appellant enter into a recognizance in the sum of $500 to be of good behaviour for…

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 Omar, O. v Lanham, G.E

Details

AGLC: Omar, O. v. Lanham, G.E. [1985] FCA 598
Case: [1985] FCA 598
Decision Date: 26 NOVEMBER 1985

CaseChat Overview and Summary

The appellant, Omar, was convicted by a magistrate of various offences, including assault occasioning actual bodily harm and affray. Lanham, the respondent, appealed the sentence imposed by the magistrate on the grounds of disproportionality and a lack of parity with other sentences. The case was heard in the Federal Court of Australia.

The central legal issues before the court were whether the sentence imposed by the magistrate was disproportionate, and if so, whether the appeal court should take into account the family circumstances of the appellant when considering the appropriate sentence. The court also needed to determine the extent to which it should consider the principle of imposing the minimum sentence possible and the weight to be given to the sentence previously imposed by the magistrate.

The court examined the sentencing principles and the principle of parity, which requires sentences to be proportionate to the offence and similar to sentences imposed for similar offences. The court found that the magistrate had considered all relevant factors and had imposed a sentence that was within the appropriate range for the offences committed. The court also held that the family circumstances of the appellant, while relevant, did not warrant a significant reduction in the sentence. Ultimately, the court concluded that the appeal did not demonstrate a clear error in the sentencing process and dismissed the appeal.

Orders

Orders of the court

The appeal be dismissed.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

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.