R v Osman - [2022] NSWDC 49

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Osman [2022] NSWDC 49
Hearing dates: 24 January 2022
Date of orders: 24 January 2022
Decision date: 24 January 2022
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
An aggregate term of imprisonment of 34 months. Offender referred to Community Corrections of assessment for suitability for an ICO and community service work: at [52]-[60].

Catchwords: SENTENCING — Mitigating factors — Good character — No record of previous convictions — Plea of guilty — Remorse
SENTENCING — Penalties — Intensive correction orders
SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — Form 1 offences — Maximum penalty — Moral culpability — Multiple offences — Objective seriousness— Purposes of sentencing
Legislation Cited:
Crimes Act1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Mandranis v R [2021] NSWCCA 97
R v Chami; R v Hassoun; R v Halloum [2021] NSWDC 519
R v Edwards (1996) 90 A Crim R 510
R v Hogan [2021] NSWDC 747
R v Naghdi [2021] NSWDC 635
R v Wu [2021] NSWDC 634

Category: Sentence
Parties:
Regina (Office of the Director of Public Prosecutions)
Bilal Osman (Offender)
Representation:
Mr D Robinson (Crown Prosecutor)
Mr P Strickland SC (Counsel for the offender)

File Number(s): 2019/346638

Judgment

Bilal Osman, aged 31, pleaded guilty to three counts in circumstances which it is agreed would justify a 5% discount on any sentence for the utilitarian value of the pleas.
Count 1 is an offence of participate in a criminal group contrary to s 93T of the Crimes Act1900. The offence carries a maximum penalty of five years imprisonment with no standard non‑parole period.
Count 2, an ex officio count, of knowingly take part in the supply of not less than the commercial quantity of a prohibited drug, namely cocaine between 30 October and 4 November 2019, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of ten years.
Attached to Count 2 is a Form 1 matter of possessing ammunition without authority or licence (sequence 6). The sequence will be dealt with in the way suggested by the Chief Justice in the guideline judgment on these matters (Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146).
Count 3 is an offence of supplying in excess of the indictable quantity of a prohibited drug, being 32 grams of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 15 years of imprisonment with no standard non-parole period.
The maximum penalties, and where applicable, the standard non-parole period, are important yardsticks in the sentencing process which must take…

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 Osman

Details

AGLC: R v Osman [2022] NSWDC 49
Case: [2022] NSWDC 49
Decision Date: 24 January 2022

CaseChat Overview and Summary

In the case of R v Osman, the defendant was convicted of multiple serious criminal offences and faced sentencing. The nature of the dispute involved the determination of an appropriate penalty for the defendant's actions, which included multiple counts of assault, theft, and property damage. The matter was heard in the higher courts, which have the jurisdiction to impose significant penalties on those found guilty of serious criminal offences.

The legal issues before the court included the assessment of mitigating factors, such as the defendant's previously unblemished criminal record and expressions of remorse, against the objective seriousness of the crimes committed. Additionally, the court needed to determine whether the imposition of an intensive correction order (ICO) and community service work would be appropriate. The court also needed to consider the maximum penalty for the offences, the purpose of sentencing, and the need for general and specific deterrence. The court had to balance these factors in light of the defendant's co-offenders, moral culpability, and the cumulative effect of the multiple offences.

The court found that, while the defendant's previously unblemished record and expressions of remorse were mitigating factors, the objective seriousness of the offences warranted a significant penalty. The court emphasised the need for general and specific deterrence, particularly in light of the defendant's multiple offences and the involvement of co-offenders. The court considered the maximum penalty for the offences, which was a maximum of five years imprisonment for each offence. Ultimately, the court imposed an aggregate term of imprisonment of 34 months, with the offender referred to Community Corrections for assessment of suitability for an ICO and community service work. This decision reflected a balance between the need for punishment, deterrence, and rehabilitation, taking into account all relevant factors.

The final orders of the court included an aggregate term of imprisonment of 34 months. The offender was also referred to Community Corrections for assessment of suitability for an intensive correction order and community service work, to be carried out in accordance with the specified paragraphs in the judgment.

Orders

Orders of the court

An aggregate term of imprisonment of 34 months. Offender referred to Community Corrections of assessment for suitability for an ICO and community service work: at [52]-[60].

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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Medium Neutral Citation:	R v Osman [2022] NSWDC 49
Hearing dates:	24 January 2022
Date of orders:	24 January 2022
Decision date:	24 January 2022
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of 34 months. Offender referred to Community Corrections of assessment for suitability for an ICO and community service work: at [52]-[60].
Catchwords:	SENTENCING — Mitigating factors — Good character — No record of previous convictions — Plea of guilty — Remorse SENTENCING — Penalties — Intensive correction orders SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — Form 1 offences — Maximum penalty — Moral culpability — Multiple offences — Objective seriousness— Purposes of sentencing
Legislation Cited:	Crimes Act1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Mandranis v R [2021] NSWCCA 97 R v Chami; R v Hassoun; R v Halloum [2021] NSWDC 519 R v Edwards (1996) 90 A Crim R 510 R v Hogan [2021] NSWDC 747 R v Naghdi [2021] NSWDC 635 R v Wu [2021] NSWDC 634
Category:	Sentence
Parties:	Regina (Office of the Director of Public Prosecutions) Bilal Osman (Offender)
Representation:	Mr D Robinson (Crown Prosecutor) Mr P Strickland SC (Counsel for the offender)
File Number(s):	2019/346638