R v Ohar

Case [2004] NSWCCA 252 2 July 2004

No judgment structure available for this case.

Type to search within this case.

CITATION: R v OHAR [2004] NSWCCA 252

HEARING DATE(S): 2 July 2004

JUDGMENT DATE:
2 July 2004

JUDGMENT OF: Hulme J at 1

DECISION: Appeal dismissed

PARTIES :
Regina
Adam OHAR

FILE NUMBER(S): CCA 60451/03

COUNSEL: Crown: G Rowling
Applicant: H Dhanji

SOLICITORS: Crown: S Kavanagh
Applicant: SE O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 20000337

LOWER COURT
JUDICIAL OFFICER : Milson DCJ

- 9 -

IN THE COURT OF
CRIMINAL APPEAL

60451/03

HULME J

Friday, 2 July 2004

R v ADAM OHAR

Judgment

1 HULME J: On 14 April 2003 this applicant for leave to appeal was sentenced by Judge Milson in the Parramatta Drug Court for various offences to which he had pleaded guilty. The offences fell into three groups. In respect of the first group Judge Milson acted pursuant to section 12 in part 2 of the Drug Court Act 1998. Section 5AF of the Criminal Appeal Act provides that the power of the Court of Criminal Appeal to hear and determine appeals in respect of such matters is to be exercised by a single judge and that is what I am now doing.

2 Appeals by the applicant in respect of the second and third groups of offences were considered by three members of this Court in R v Ohar [2004] NSWCCA 83. In the course of those proceedings, the Court held it could not deal with the first group of offences, nor with the third, in respect of which Judge Milson had been exercising a Local Court jurisdiction, but went ahead and dealt with these appeals in the second group. A Crown appeal in relation to the first and second group was also considered and dismissed.

3 The first group included nine offences. One was of breaking, entering and stealing committed on 10 July 2000; one of possession of housebreaking implements, viz. a pair of garden clippers found in the appellant's pocket on that same day; and a third was of being carried in a motor vehicle knowing it to have been stolen. (At times that offence has been referred to by judges who have previously considered the matter as stealing a motor vehicle. I wish to make it clear that, though I may also use that description, I am conscious of the nature of the appellant's offence.)

4 When the offences in this group were first dealt with in the Drug Court on 15 January 2001, the appellant was sentenced in respect of the three just described to concurrent terms of imprisonment of 12 months and three weeks – a period Judge Barnett arrived at by taking, from a period of 18 months he would otherwise have imposed, five months and four days the applicant had spent in pre-sentence custody. The sentences were suspended in consequence of the appellant accepting the conditions of a drug program.

5 The applicant entered into the drug program. His participation in this is detailed in the remarks of the Court of Criminal Appeal in…

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 R v Ohar

Details

AGLC: R v Ohar [2004] NSWCCA 252
Case: [2004] NSWCCA 252
Decision Date: 2 July 2004

CaseChat Overview and Summary

In the case of R v Adam Ohar, the appellant sought leave to appeal against sentences imposed by Judge Milson in the Parramatta Drug Court. The appellant was convicted of multiple offences and was sentenced to concurrent terms of imprisonment of nine months for three specific offences. The appeal focused on whether these sentences were manifestly excessive, considering the time the appellant had already spent in custody prior to and during his participation in a drug program.

The legal issues before the court involved interpreting and applying section 12 of the Drug Court Act 1998, which governs the reconsideration of sentences for drug offenders. The appellant argued that the sentence did not sufficiently account for the time already served in custody and quasi-custody, as well as his participation in the drug program. The court also had to address whether the sentence was commensurate with the seriousness of the offences and the appellant's criminal history.

The court held that despite the appellant's arguments, the Drug Court Act did not mandate a reduction in the sentence based on prior custody or program participation. The court found that the nine-month sentence was not excessive, particularly considering the appellant's extensive criminal history and the severity of the offences. The court emphasised that the Drug Court Act set clear limits on the final sentence, and it was not persuaded that these limits should be further constrained. Additionally, while there were deficiencies in the reasons provided by Judge Milson, they did not justify altering the sentence imposed.

Ultimately, the court dismissed the appeal, concluding that the sentence was within the range that the Court of Criminal Appeal itself would impose. The court found no basis to interfere with the sentences, even though the reasons provided by the sentencing judge were insufficient. The appeal was deemed largely academic, as the sentences in question were concurrent with other sentences for which the appeal period had expired.

Orders