R v Omari

Case [2022] ACTCA 4


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

The Queen v Omari

Citation:  

[2022] ACTCA 4

Hearing Date:  

11 November 2021

DecisionDate:  

14 February 2022

Before:

Elkaim ACJ, Mossop and Banks-Smith JJ

Decision:  

See [126]

Catchwords:  

APPEAL - CRIMINAL LAW - Crown appeal against sentence - drug offences - joint criminal enterprise of importing commercial quantity of border controlled drug - trafficking in drug other than cannabis - where period of imprisonment as to importation offence wholly cumulative - whether sentence manifestly inadequate - whether residual discretion to intervene should be exercised - appeal allowed - re-sentenced

Legislation Cited:  

Crimes (Sentencing Act) 2005 (ACT), Part 4.4

Crimes Act 1900 (ACT), s 114C
Crimes Act 1914 (Cth), Part IB
Criminal Code 2002 (ACT), s 603
Criminal Code Act 1995 (Cth), ss 11.2A, 44, 307.1, 603, 713

Prohibited Weapons Act 1996 (ACT), s 5

Cases Cited:  

Barbaro v The Queen [2014] HCA 2; 253 CLR 58

Bui v The Queen [2015] ACTCA 5
CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346
Director of Public Prosecutions (Cth) v Englisch [2009] VSCA 71
Director of Public Prosecutions (Cth) v Maxwell [2013] VSCA 50; 228 A Crim R 218
Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428
Green v The Queen [2011] HCA 49; 244 CLR 462
He v Sun [2021] NSWCA 95; 104 NSWLR 518
Hili v The Queen [2010] HCA 45; 242 CLR 520
Legault v The Queen [2014] NSWCCA 271
Melham v The Queen [2011] NSWCCA 121
Nchouki v The Queen [2018] ACTCA 28; 13 ACTLR 168
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Agboti [2014] QCA 280; 246 A Crim R 72
R v Campbell [2010] ACTCA 20
R v Chan [1999] NSWCCA 103
R v Considine [2013] NSWCCA 97
R v Duffy [2014] ACTCA 53; 297 FLR 359
R v Edwards (1996) 90 A Crim R 510
R v Harrington [2016] ACTCA 10; 11 ACTLR 215
R v Hernando [2002] NSWCCA 489; 136 A Crim R 451
R v Hou [2017] ACTCA 14
R v Mauger [2012] NSWCCA 51
R v McMurray [2011] QCA 319
R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106
R v Omari [2021] ACTSC 18
R v Poulakis [2020] ACTSC 247
R v Ralston [2020] ACTCA 47; 285 A Crim R 159
R v Robertson [2000] NSWCCA 266
R v Rosso Bernardo [2017] QCA 6
R v Shortland [2018] NSWCCA 34
R v Simon [2003] NSWCCA 147; 142 A Crim R 166
R v Todoroski [2010] NSWCCA 75
R v TW [2011] ACTCA 25; 6 ACTLR 18
R v Watson [2018] ACTSC 172
R v Yavuz (No 2) [2020] ACTSC 248
RCW v The Queen (No 2) [2014] NSWCCA 190; 244 A Crim R 541
Siddiqi v The Queen [2015] NSWCCA 169
The Queen…

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R v Omari [2022] ACTCA 4
Case
[2022] ACTCA 4
Decision Date

CaseChat Overview and Summary

The appeal concerned the sentences imposed on the respondent, Bilal Badr-Eddeen Omari, by the Supreme Court of the Australian Capital Territory. The Crown appealed against the sentences for two offences: jointly importing a commercial quantity of a border-controlled drug (MDMA) contrary to the *Criminal Code Act 1995* (Cth), and trafficking in a controlled drug other than cannabis (cocaine) contrary to the *Criminal Code 2002* (ACT). The respondent had pleaded guilty to these offences.

The legal issues before the Supreme Court of the Australian Capital Territory, Court of Appeal, were whether the sentences imposed were manifestly inadequate and whether the residual discretion to intervene should be exercised. The sentencing judge had imposed a term of imprisonment for the Territory offence and a concurrent term for the Commonwealth offence, with a recognizance release order. A key aspect of the Crown's complaint was that the respondent would not serve any period of full-time custody solely attributable to the Commonwealth offence due to the concurrency of the sentences.

The Court found that the sentence for the Commonwealth offence, which carried a maximum penalty of life imprisonment, was manifestly inadequate, particularly when considered alongside the details of the offending. The Court also concluded that the overall sentence was manifestly inadequate. Consequently, the appeal was allowed, and the respondent was to be re-sentenced.

Orders

Orders of the court

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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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