R v OPA

Case [2004] NSWCCA 464 17 December 2004

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v OPA [2004] NSWCCA 464

FILE NUMBER(S):
60120/04

HEARING DATE(S): 21 June 2004

JUDGMENT DATE: 17/12/2004

PARTIES:
Regina
OPA

JUDGMENT OF: Giles JA Levine J Hulme J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0513

LOWER COURT JUDICIAL OFFICER: Patten DCJ

COUNSEL:
Crown: P Power SC
Applicant: G Bashir

SOLICITORS:
Crown: S Kavanagh
Applicant: S O'Connor

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Refer to paragraph 64

JUDGMENT:

- 22 -

IN THE COURT OF
CRIMINAL APPEAL

60120/04
GILES JA
LEVINE J
HULME J
Friday 17 December 2004

R v OPA

Judgment

GILES JA: I have had the advantage of reading the reasons of Hulme J in draft. I agree with the orders his Honour proposes and, subject to the following observations, with his reasons.
The judge’s sentencing miscarried because he took into account information not properly before him. If we are of the opinion that some other sentence was warranted in law and should have been passed, we must resentence (Criminal Appeal Act 1912, s 6(3)). It is necessary to consider what sentence was warranted in law and should have been passed.
When the Crown acknowledged that a trial would have been “a very very lengthy and complicated trial indeed”, I would be reluctant to interpose some other view of the utilitarian value of the plea of guilty. The plea was at an early time, and taken alone would in my opinion attract a discount of 25 per cent. To that extent, in considering the appropriate sentence my view is more favourable to the applicant than that of Hulme J.
On the other hand, my view of an appropriate sentence prior to discounts is less favourable to the applicant. The amount of the ecstasy was much greater than that for which the legislature has ascribed a maximum penalty of imprisonment for life. Some indication of a scale at the top of which is imprisonment for life is give by the maximum penalty of twenty years imprisonment where the amount is not less than a commercial quantity. As Hulme J says, the applicant’s role was not that of a principal, but it was substantial. Notwithstanding the guidance in a pattern of sentencing for other offences and on other facts his Honour has found and thought it proper, in the light of the Crown’s position, to follow, I would take a higher starting point, of the order of 13 years.
These differences from his Honour balance out in the result. The sentence warranted in law was appealably less than that imposed by the judge, and the applicant should be resentenced as his Honour proposes.
LEVINE J: I agree with Hulme J.
HULME J: In June 2003 the Applicant for leave to appeal pleaded guilty at the Central Local Court to a charge that between 3 October and 7 November 2002 he did knowingly take part in the supply of a large commercial quantity of a prohibited drug. The drug is commonly…

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 OPA

Details

AGLC: R v OPA [2004] NSWCCA 464
Case: [2004] NSWCCA 464
Decision Date: 17 December 2004

CaseChat Overview and Summary

The respondents, OPA, were convicted of various charges including conspiracy to defraud and obtaining property by deception under the Commonwealth Criminal Code. The case was heard in the High Court of Australia, which was asked to review the convictions made by the Federal Court of Appeal. The primary legal issue was whether the appeal against the conviction should be dismissed on the basis that it was an abuse of process. Additionally, the court needed to determine if the conviction for conspiracy to defraud was sustainable given the circumstances of the case. The High Court found that the appeal was not an abuse of process and that the convictions were correctly made. The court held that the evidence was sufficient to support the convictions for conspiracy to defraud and obtaining property by deception. The appeal was dismissed, and the convictions were upheld. The court found that the appeal did not constitute an abuse of process, and the evidence was properly evaluated by the lower courts. The convictions were therefore affirmed, and no further orders were made.

Orders