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Opacic v R

Opacic v R

Case [2013] NSWCCA 294 26 November 2013

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Court of Criminal Appeal

New South Wales

Case Title: Opacic v R

Medium Neutral Citation: [2013] NSWCCA 294

Hearing Date(s): 14 November 2013

Decision Date: 26 November 2013

Before: Macfarlan JA at [1]
Latham J at [2]
R A Hulme J at [3]

Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - aggravated impersonation of a police officer - indecent assault - offender coerced sex worker into his vehicle under pretence of being undercover officer - indecent assault committed in vehicle in isolated location - asserted failure by sentencing judge to adequately characterise the seriousness of the offences -seriousness dealt with succinctly after submissions on sentence and discussion - real question whether offences so serious as to impose full time custody - error not made out - asserted manifest excess - new aggravated impersonation of a police officer offence not assisted by statistical comparison - indecent assault serious - substantial concurrency of sentences - sentences not manifestly excessive

Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Police Act 1900 (NSW)
Police Amendment (Miscellaneous) Act 2006 (NSW)

Cases Cited: Belghar v R [2013] NSWCCA 245
BT v R [2012] NSWCCA 267
Corby v R [2010] NSWCCA 146
House v The King (1936) 55 CLR 499
Huntington v R [2007] NSWCCA 196
Jiang v R [2010] NSWCCA 277
Lipchin v R [2013] NSWCCA 77
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Hibberd [2009] NSWCCA 20
R v McEvoy [2010] NSWCCA 110
Speechley v R [2012] NSWCCA 130
Zreika v R [2012] NSWCCA 44

Category: Principal judgment

Parties: Robert Orlando Opacic (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
Mr M Johnston (Applicant)
Ms S Herbert (Respondent)

- Solicitors: Solicitors:
Bannisters Lawyers and Attorneys
Solicitor for Public Prosecutions

File Number(s): 2011/18732

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Solomon DCJ

- Date of Decision: 05 October 2012

- Court File Number(s): 2011/18732

JUDGMENT

MACFARLAN JA: I agree with R A Hulme J.
LATHAM J: I agree with R A Hulme J.
R A HULME J: Robert Orlando Opacic ("the applicant") applies for leave to appeal against sentences imposed upon him by his Honour Judge Solomon in the District Court at Sydney on 5 October 2012.
The applicant had pleaded guilty to two offences. One was aggravated impersonation of a police officer, contrary to s 546D(2) of the Crimes Act 1900 (NSW) for which there is prescribed a maximum penalty of imprisonment for 7 years. The offence is aggravated where the offender has an intention to deceive and purports to exercise the powers and functions of a police officer. The other offence was indecent assault which is contrary to s 61L of the Crimes Act and has prescribed for it a maximum penalty of imprisonment for 5 years.
For the impersonation of a police officer the judge imposed a sentence of 2 years 9 months with a non-parole period of 1 year 6…

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 Opacic v R

Details

AGLC: Opacic v The Queen [2013] NSWCCA 294
Case: [2013] NSWCCA 294
Decision Date: 26 November 2013

CaseChat Overview and Summary

The matter of Opacic v R was heard in the High Court of Australia. The appellant, Opacic, was convicted of aggravated impersonation of a police officer and indecent assault. Opacic had coerced a sex worker into his vehicle under the pretence of being an undercover police officer and committed the indecent assault in the vehicle in an isolated location. The primary issue before the court was whether the sentencing judge had failed to adequately characterise the seriousness of the offences, leading to an appeal against the sentence imposed.

The court considered whether the sentencing judge had adequately assessed the gravity of the offences. It was argued that the seriousness of the offences was dealt with in a perfunctory manner, without a comprehensive analysis of the nature and impact of the crimes. The court found that the sentencing judge had considered the gravity of the offences and that the decision to impose full-time custody was not unreasonable. The court rejected the claim that the sentence was manifestly excessive, noting that the indecent assault was a serious crime and the sentences were not disproportionate. The court further noted that the new offence of aggravated impersonation of a police officer did not necessarily require statistical comparison to determine its seriousness.

The High Court held that the appeal against sentence was dismissed. The court found that the sentencing judge had adequately characterised the seriousness of the offences and that the sentence imposed was not manifestly excessive. The court noted that the offences were serious and warranted a custodial sentence, and that the concurrent sentences were not disproportionate. The court concluded that the appeal was without merit and that the sentence imposed was appropriate in the circumstances of the case.

Orders