SUPREME COURT OF QUEENSLAND
CITATION:
R v Omar [2012] QCA 23
PARTIES:
R
v
OMAR, Shoaib
(applicant)FILE NO/S:
CA No 325 of 2011
DC No 1561 of 2011DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
24 February 2012
DELIVERED AT:
Brisbane
HEARING DATE:
13 February 2012
JUDGES:
White JA, Margaret Wilson AJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Application for leave to appeal against sentence refused
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one count of burglary with circumstances of aggravation, one count of kidnapping and one count of assault occasioning bodily harm – where applicant sentenced to four years imprisonment – where applicant co-operated with police – where lack of parity with co-offenders – where applicant the prime mover in the planning and commission of offences – where applicant chose to make application for leave to appeal against sentence in the context of a legislative scheme which prevents him from making an application for parole whilst the appeal is undecided – whether the sentence imposed was manifestly excessive in all the circumstances
Corrective Services Act 2006 (Qld), s 180
Criminal Code 1899 (Qld), s 7(1)(a), s 7(1)(b), s 7(1)(c), s 8, s 339(1)(3), s 354(1), s 359F, s 419(1)(3)(b)R v A [2003] QCA 538, cited
R v El-Masri[2003] QCA 52, cited
R v P; ex parte A-G (Qld) [2002] QCA 69, distinguishedCOUNSEL:
B H P Mumford for the applicant
V A Loury for the respondentSOLICITORS:
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
WHITE JA: I have read the reasons of Margaret Wilson AJA and agree with her Honour’s reasons and the order which she proposes.
MARGARET WILSON AJA: The applicant and two co-offenders pleaded guilty to one count of burglary with violence while armed and in company, one count of kidnapping and one count of assault occasioning bodily harm while armed.
On 25 November 2011 the applicant was sentenced to imprisonment for four years for the burglary, for a similar term for the kidnapping and for 18 months for the assault occasioning bodily harm. The sentences were made concurrent. Pre-sentence custody of 380 days was declared time already served, and parole eligibility was fixed at 10 March 2012 (after one-third of the head sentence).
The two co-offenders, Alicia Bronwyn Green and Tia Margaret Hodgkiss, each received sentences of two and a half years for the first two offences and 12 months for the third, to be served concurrently. Short periods of pre-sentence custody (23 days and 27 days respectively) were declared time already served, and they were both ordered to be released on parole immediately.
The applicant seeks leave to appeal against sentence on the ground of manifest excessiveness.…
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- R v Omar [2012] QCA 23
- Case
- [2012] QCA 23
- Decision Date
CaseChat Overview and Summary
The court considered the principles governing appeals against sentence, particularly focusing on whether the sentence was manifestly excessive. It noted that the applicant had cooperated with the police and had been the prime mover in the offences. The court also considered the legislative scheme which prevented the applicant from making an application for parole while the appeal was undecided. After weighing these factors, the court concluded that the sentence did not fall outside the range of sentences that a properly directed sentencing judge could have imposed. Therefore, the court held that the sentence was not manifestly excessive.
Accordingly, the court refused the application for leave to appeal against the sentence. The applicant's appeal was dismissed, and the sentence of four years imprisonment stood. The court's decision underscored the importance of proportionality and consistency in sentencing, while also taking into account the legislative framework affecting parole applications during the appeal process.
Orders
Orders of the court
Application for leave to appeal against sentence refused
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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