R v Omar - [2012] QCA 23

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 2011

DIVISION:

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 made

ORDER:

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, distinguished

COUNSEL:

B H P Mumford for the applicant
V A Loury for the respondent

SOLICITORS:

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.…

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 [2012] QCA 23
Case: [2012] QCA 23
Decision Date: 24 February 2012

CaseChat Overview and Summary

The case of R v Omar involved the applicant who pleaded guilty to one count of burglary with circumstances of aggravation, one count of kidnapping, and one count of assault occasioning bodily harm. The applicant was sentenced to four years imprisonment. The applicant sought leave to appeal against the sentence on the basis that it was manifestly excessive in all the circumstances. The court had to decide whether the sentence imposed was manifestly excessive or inadequate given the applicant's cooperation with the police, the lack of parity with co-offenders, and the fact that the applicant was the prime mover in the planning and commission of the offences.

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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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 2011
DIVISION:	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 made
ORDER:	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, distinguished
COUNSEL:	B H P Mumford for the applicant V A Loury for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent