R v Ohar

Case [2004] NSWCCA 83 23 April 2004

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Reported Decision:
59 NSWLR 596
145 A Crim R 453

New South Wales

Court of Criminal Appeal

CITATION: Regina v Ohar [2004] NSWCCA 83

HEARING DATE(S): 22/03/04

JUDGMENT DATE:
23 April 2004

JUDGMENT OF: Studdert J at 1; James J at 2; Dunford J at 89

DECISION: (1) Crown appeal dismissed (2) Prisoner's application for leave to appeal - leave to appeal granted but appeal dismissed

CATCHWORDS: Criminal law - sentencing- principles - Drug Court - competency of appeals - constitution of Court of Criminal Appeal - delay in instituting Crown appeal - statutory non-parole periods

LEGISLATION CITED: Crimes Act
Crimes (Sentencing Procedure) Act
Criminal Appeal Act
Criminal Appeal Rules
Drug Court Act

CASES CITED: House v The King (1936) 55 CLR 499
Johnson v The Queen [2004] HCA 15 (30 March 2004)
Pearce v The Queen (1998) 194 CLR 610
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584
R v Baker [2000] NSWCCA 85
R v El-Hamid [2000] NSWCCA 497
R v Giam (No. 2) (1999) 109 A Crim R 348
R v Hallocoglu (1992) NSWLR 67
R v Hammoud (2000) 118 A Crim R 66
R v Hernando [2002] NSWCCA 489
R v Itamua [2000] NSWCCA 502
R v Wong & Leung (1999) 108 A Crim R 531

PARTIES :
Regina v Adam OHAR

FILE NUMBER(S): CCA 60451/03

COUNSEL: H Dhanji - Applicant
G Rowling - Respondent

SOLICITORS: S O'Connor - Applicant
S Kavanagh - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2000/0337

LOWER COURT
JUDICIAL OFFICER : Milson DCJ

60451/03

STUDDERT J
JAMES J
DUNFORD J
Friday 23 April 2004

REGINA v Adam OHAR

Judgment

1 STUDDERT J : I agree with James J

2 JAMES J In this matter Adam Ohar (who I will refer to as “the offender”) appealed or applied for leave to appeal, and the Crown appealed, against sentences imposed on the offender on 14 April 2003 by his Honour Judge Milson in the Parramatta Drug Court for various offences, to all of which the offender had pleaded guilty.

3 The offences for which Judge Milson sentenced the offender can be divided into three groups.

4 The first group consisted of nine offences, namely:- one offence of breaking, entering and stealing committed in 1995 in respect of which a recognisance had been entered, which was later breached; four offences of goods in custody; one offence of being carried in a conveyance without the consent of the owner; one offence of breaking, entering and stealing committed on 10 July 2000; one offence of possessing a house breaking implement; and one offence of maliciously damaging property. In sentencing the offender for the offences in this group Judge Milson was exercising jurisdiction under s 12 in Pt 2 of the Drug Court Act 1998.

5 The second group of offences for which Judge Milson sentenced the offender, all of which were committed on 9 October 2002, consisted of an offence of aggravated car-jacking, being an offence under s 154C(2)…

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 83
Case: [2004] NSWCCA 83
Decision Date: 23 April 2004

CaseChat Overview and Summary

In this case, the respondent was convicted of drug-related offences in the Drug Court. The Crown appealed the sentence, arguing it was too lenient. The respondent contended that the appeal was incompetent and the Court of Criminal Appeal was not correctly constituted. The High Court of Australia considered these issues.

The legal issues included whether the appeal was incompetent due to delays, and whether the Court of Criminal Appeal was correctly constituted. The Court also needed to determine if the statutory non-parole periods applied to the sentence.

The Court found that the appeal was not incompetent despite the delay, as the respondent had not suffered any prejudice. The constitution of the Court of Criminal Appeal was held to be valid, despite the absence of a full-time judge. The Court held that the statutory non-parole periods did not apply to the sentence because the trial judge had correctly exercised their discretion.

The Court dismissed the appeal and affirmed the sentence imposed by the primary judge. The statutory non-parole periods did not apply to this sentence.

Orders