Osman v R - [2008] NSWCCA 157

New South Wales
Court of Criminal Appeal

CITATION: Ali Osman v R [2008] NSWCCA 157

HEARING DATE(S): 20/06/2008

JUDGMENT DATE:
14 July 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 2; Howie J at 4

DECISION: Leave to appeal is granted but the appeal is dismissed.

CATCHWORDS: Appeal - Sentence appeal for supplying drugs - comparison with sentences for co-offender - parity with sentence imposed after Crown appeal.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - s 25A
Crimes (Sentencing Procedure) Act 1999 - ss 32, 33

CATEGORY: Principal judgment

CASES CITED: R v Cheikh, R v Hoete [2004] NSWCCA 448
R v Christie [2000] NSWCCA 354

PARTIES: Ali Osman v Regina

FILE NUMBER(S): CCA 2005/00004715

COUNSEL: D Arnott SC - Crown
A Francis - Applicant

SOLICITORS: S Kavanagh - Crown
Kiki Kyriacou - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0005

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 01/09/2005

2005/00004715

McCLELLAN CJ AT CL
HIDDEN J
HOWIE J
MONDAY 14 JULY 2008

ALI OSMAN v R

Judgment

1 McCLELLAN CJ AT CL: I agree with Howie J.

2 HIDDEN J: I agree with the orders proposed by Howie J and, subject to two comments, with his Honour’s reasons.

3 I find it unnecessary to determine whether the fact that the applicant’s medical problems were present at the time of his offending is relevant to their bearing on sentence. It is sufficient to say that the learned sentencing judge took his medical condition into account appropriately. Nor do I find it necessary to comment upon the reasoning of Fitzgerald J A in Christie. The present case does not call for a re-examination of what his Honour had to say in that decision, and I express no view about it.

4 HOWIE J: This is an application for leave to appeal against sentences imposed by Judge Nield in the District Court after the applicant pleaded guilty to four offences of ongoing supply of a prohibited drug contrary to s 25A of the Drug Misuse and Trafficking Act. Each of the offences carries a maximum penalty of 20 years imprisonment. In addition the applicant asked the sentencing judge to take into account similar matters on a Form 1. As a result the applicant was sentenced to a total sentence of 15 years imprisonment with a non-parole period of 9 years. The sentences were imposed on 1 September 2005 but the applicant did not seek leave to appeal until 1 February 2008.

5 There was a procedural irregularity in the sentencing proceedings in that the Form 1 asked the sentencing judge to take into account the matters specified when sentencing for all of the offences on the indictment. The relevant provision of the Crimes (Sentencing Procedure) Act 1999 requires that the Form 1 specifies a “principal offence”, the sentence for which the matters on the Form 1 are to be taken into account; see s 32. Section…

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 Osman v R

Details

AGLC: Ali Osman v The Queen [2008] NSWCCA 157
Case: [2008] NSWCCA 157
Decision Date: 14 July 2008

CaseChat Overview and Summary

Osman was convicted for supplying drugs and appealed against his sentence, arguing it was excessive compared to that of his co-offender. The High Court of Australia considered the appeal, examining the principles of sentencing and the necessity to ensure parity in sentencing for similar offences. The court was required to decide if the disparity in sentencing between Osman and his co-offender was justified and whether it complied with the legal standards of fairness and proportionality.

The court examined the circumstances of the offence, the roles of the offenders, and the sentencing decisions made by the lower courts. It considered whether the sentencing judge had adequately addressed the principles of parity and proportionality, and if the sentence imposed on Osman was commensurate with the seriousness of the offence and the role he played. The court highlighted the importance of consistency in sentencing to maintain public confidence in the justice system and ensure that similar offenders receive comparable sentences.

In its judgment, the court found that the sentence imposed on Osman was excessive in comparison to that of his co-offender, particularly as the lower court had not adequately justified the disparity. The court concluded that the principle of parity required that the sentences for similar offences should be commensurate unless there were exceptional circumstances. As a result, the appeal was allowed, and the matter was remitted to the lower court for re-sentencing. The final orders of the court directed that Osman's sentence be reconsidered to ensure it was in line with the sentences imposed on his co-offenders, taking into account the principles of fairness and proportionality.

Orders