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R v Omari

R v Omari

Case [2022] ACTCA 4 14 February 2022

Statutory Interpretation

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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…

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 Omari

Details

AGLC: 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