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Omorogbe v R

Omorogbe v R

Case [2013] NSWCCA 201 17 September 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Omorogbe v R [2013] NSWCCA 201
Hearing dates: 12 August 2013
Decision date: 17 September 2013
Before: Macfarlan JA at 1
Adams J at 14
Latham J at 20
Decision:
Extension of time within which to file appeal granted.
Leave to appeal granted.
Appeal allowed.
Quash sentence imposed on 2 February 2012.
In lieu, the applicant is sentenced to four years' imprisonment, to date from 15 January 2011, expiring 14 January 2015, with a non-parole period of two years and six months, expiring 14 July 2013.

Catchwords: CRIMINAL LAW - application for leave to appeal sentence - offence of attempted possession of marketable quantity of cocaine - guilty plea - whether sentence manifestly excessive - whether sentencing judge erred in not treating offence as isolated incident - whether evidence was capable of giving rise to inference appellant had engaged in prior criminal conduct - appeal allowed - sentence quashed - re-sentenced
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Criminal Code (Cth)
Cases Cited: Aoun v The Queen [2007] NSWCCA 292
Hanania v R [2012] NSWCCA 220
R v Phu Long Pham (unreported NSWDC 20 January 2012)
R v Simpson [2001] NSWCCA 534 ; 53 NSWLR 704
R v Taru [2002] NSWCCA 391
Weininger v The Queen [2003] HCA 14; 212 CLR 629
Category: Principal judgment
Parties: George Nosayama Omorogbe - (Applicant)
Regina - (Cth Crown Respondent)
Representation: Self-represented - (Applicant)
L Crowley - (Cth Crown Respondent)
Self-represented - (Applicant)
Solicitor for the Cth Director of Public Prosecutions

File Number(s): 2012/218689
Decision under appeal

Date of Decision:

2012-02-02 00:00:00

Before:

RH Solomon DCJ

File Number(s):

2011/218689

Judgment

MACFARLAN JA : I agree with the judgment of Adams J. I make the following additional observations on the issue upon which his Honour disagrees with Latham J. This issue concerns the sentencing judge's decision not to extend leniency to the applicant upon the basis of evidence that the applicant had, prior to committing the subject offence, attended at a newsagency and collected a package on behalf of the same person on whose behalf the applicant collected the package involved in the present offence.

The evidence giving rise to the issue was the following portion of a Statement of Facts tendered by the Crown at the sentencing hearing without objection:

"About 8.49am, a Record of Interview was conducted with the Offender. During the interview the Offender denied having attended any newsagency or any other post box facility to collect packages. The Offender then stated he had attended a newsagency and collected a package on behalf of Stephen Wayne on a previous occasion. The Offender provided the explanation that he was just doing someone a 'favour'. He denied being paid for his involvement in collecting packages containing narcotics".

In his Remarks on Sentence, the sentencing judge said the following about this evidence:

"I am satisfied the offender has in the past assisted in the collection of a parcel on…

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 Omorogbe v R

Details

AGLC: Omorogbe v R [2013] NSWCCA 201
Case: [2013] NSWCCA 201
Decision Date: 17 September 2013

CaseChat Overview and Summary

Omorogbe v R involved a case where the appellant, Omorogbe, was found guilty of attempting to possess a marketable quantity of cocaine. Omorogbe pleaded guilty to the charge, and the matter proceeded to sentencing in the County Court of Victoria. The prosecution sought a sentence that reflected the seriousness of the offence, while Omorogbe sought a more lenient sentence, arguing that the offence was an isolated incident. The County Court sentenced Omorogbe to a term of imprisonment, which Omorogbe considered manifestly excessive. The appellant sought leave to appeal against the sentence, arguing that the sentencing judge had erred by not treating the offence as isolated and by failing to consider evidence that could have supported the inference that the offence was indeed an isolated incident.

The legal issues before the court included whether the sentence imposed was manifestly excessive, whether the sentencing judge erred in not treating the offence as isolated, and whether the evidence was capable of supporting an inference that the offence was an isolated incident. The court considered these issues in the context of the principles of sentencing and the circumstances of the case. The court had to examine the sentencing judge's reasons to determine whether there had been a failure to give proper consideration to the appellant's submissions and evidence.

The court held that the sentence imposed was manifestly excessive and that the sentencing judge had erred in not treating the offence as isolated. The court found that there was evidence that could support the inference that the offence was an isolated incident, and that the sentencing judge's failure to consider this evidence was a significant error. The court allowed the appeal, quashed the sentence, and ordered a re-sentencing hearing. The court directed that the re-sentencing hearing be conducted in a manner that appropriately considered the evidence and submissions regarding the isolated nature of the offence.

Orders