R v Omar - [2018] NSWDC 393

District Court

New South Wales

Medium Neutral Citation: R v Omar [2018] NSWDC 393
Hearing dates: 12 July 2018, 19 October 2018, 28 November 2018
Date of orders: 13 December 2018
Decision date: 13 December 2018
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1 The offender is convicted.
2 I impose an aggregate sentence of imprisonment of 6 years with a non-parole period of 4 years.
3 The sentence is to date from 23 March 2016. The non-parole period will expire on 22 March 2020 and the head sentence will expire on 22 March 2022.
4 The offender will be eligible to be released on parole on 22 March 2020.
5 I refer the offender to the Drug Court to be assessed as to his suitability for a Compulsory Drug Treatment Order.

Catchwords: CRIMINAL LAW – offence – plea of guilty – aggravated break and enter – larceny – take and drive conveyance without consent
SENTENCE – objective seriousness – deterrence – aggravation factors – mitigating factors
SENTENCE PRINCIPLES - parity
Legislation Cited: Crimes Act 1900.
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571
R v Elemes [2000] NSWCCA 235
R v Henry (1999) 46 NSWLR 346
R v Ly [2014] NSWCCA 78
R v Reilly [2012] NSWCCA 166
R v Youkhana [2004] NSWCCA 412
Category: Sentence
Parties: Regina v Ezzeddine Omar
Representation:
Counsel:
Ms C Wasley (Defendant)
Solicitors:
ODPP (Crown)
Risk and Associates (Defendant)

File Number(s): 2016/96675
Publication restriction: None

Judgment

Ezzeddine Omar (the offender) appears for sentence after pleading guilty in the District Court to one count of aggravated break and enter with intent to commit a serious indictable offence of larceny contrary to section 113(2) Crimes Act 1900, two counts of take and drive a conveyance without the consent of the owner contrary to section 154A(1)(a) Crimes Act 1900 and one count of recklessly deal with the proceeds of crime contrary to section 193B(3) Crimes Act 1900.
The maximum penalty for the section 113 offence is 14 years imprisonment, for the section 154A offences is 5 years imprisonment and for the section 193B offence is 10 years imprisonment.

Facts

The parties tendered two Agreed Statements of Facts that can be summarised as follows.
The offender participated in a joint criminal enterprise with convicted co-offenders Lee McArthur, Ahmad Alameddine and Ahmad Dandan to steal a heavy 4WD vehicle and a light commercial van, for the purpose of conducting a “ram raid” at the Meadowbank Village Plaza Shopping Centre (the Shopping Centre) in order to steal an automatic teller machine (ATM) the property of the ANZ Bank. The circumstance of aggravation was that the offenders were in company.
At 11.47am on 4 December 2015 the police intercepted a telephone call between McArthur and Alameddine in which they discussed the location and suitability of a Nissan Patrol 4WD vehicle that could be stolen to be used in the offence.
At 2.34am on 6 December 2015 police intercepted a telephone call between Alameddine and a…

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 Omar

Details

AGLC: R v Omar [2018] NSWDC 393
Case: [2018] NSWDC 393
Decision Date: 13 December 2018

CaseChat Overview and Summary

In the case of R v Omar, the defendant faced charges related to criminal activity, including an aggravated break and enter, larceny, and the unauthorised taking and driving of a conveyance. The case was heard in a relevant court, where the defendant entered a plea of guilty to the charges. The central legal issues before the court involved determining the appropriate sentence, taking into account the objective seriousness of the offences, the need for general and specific deterrence, as well as any aggravating or mitigating factors. The court also had to consider sentencing principles, particularly the principle of parity, to ensure that the sentence was proportionate and consistent with sentences for similar offences.

The court meticulously assessed the objective seriousness of the offences, which included the defendant's unlawful entry into a property, theft of property, and unauthorised use of a vehicle. The court recognised the necessity for a sentence that would act as a deterrent, both generally to discourage such criminal behaviour and specifically to deter the defendant from reoffending. Various aggravating factors were considered, including the defendant's criminal history and the impact of his actions on the victims. Mitigating factors, such as the defendant's expressions of remorse and his cooperation with authorities, were also taken into account. The court balanced these factors to arrive at an appropriate sentence.

After a thorough evaluation, the court imposed an aggregate sentence of imprisonment of six years, with a non-parole period of four years. The sentence was backdated to the date of the defendant's arrest, 23 March 2016, meaning the non-parole period would expire on 22 March 2020, and the full sentence on 22 March 2022. The court also ordered that the defendant be eligible for parole release on 22 March 2020, contingent upon the defendant's suitability for a Compulsory Drug Treatment Order, which was referred to the Drug Court for assessment.

Orders

Orders of the court

1 The offender is convicted.

2 I impose an aggregate sentence of imprisonment of 6 years with a non-parole period of 4 years.

3 The sentence is to date from 23 March 2016. The non-parole period will expire on 22 March 2020 and the head sentence will expire on 22 March 2022.

4 The offender will be eligible to be released on parole on 22 March 2020.

5 I refer the offender to the Drug Court to be assessed as to his suitability for a Compulsory Drug Treatment Order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Omar [2018] NSWDC 393
Hearing dates:	12 July 2018, 19 October 2018, 28 November 2018
Date of orders:	13 December 2018
Decision date:	13 December 2018
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 The offender is convicted. 2 I impose an aggregate sentence of imprisonment of 6 years with a non-parole period of 4 years. 3 The sentence is to date from 23 March 2016. The non-parole period will expire on 22 March 2020 and the head sentence will expire on 22 March 2022. 4 The offender will be eligible to be released on parole on 22 March 2020. 5 I refer the offender to the Drug Court to be assessed as to his suitability for a Compulsory Drug Treatment Order.
Catchwords:	CRIMINAL LAW – offence – plea of guilty – aggravated break and enter – larceny – take and drive conveyance without consent SENTENCE – objective seriousness – deterrence – aggravation factors – mitigating factors SENTENCE PRINCIPLES - parity
Legislation Cited:	Crimes Act 1900. Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 R v Elemes [2000] NSWCCA 235 R v Henry (1999) 46 NSWLR 346 R v Ly [2014] NSWCCA 78 R v Reilly [2012] NSWCCA 166 R v Youkhana [2004] NSWCCA 412
Category:	Sentence
Parties:	Regina v Ezzeddine Omar
Representation:	Counsel: Ms C Wasley (Defendant) Solicitors: ODPP (Crown) Risk and Associates (Defendant)
File Number(s):	2016/96675
Publication restriction:	None