Regina v O'Mally - [2005] NSWCCA 166

CITATION:
Regina v O'Mally [2005] NSWCCA 166

HEARING DATE(S): 28 April 2005

JUDGMENT DATE:

28 April 2005

JUDGMENT OF:
Stein AJ at 29; Grove J at 2; Howie J at 30

DECISION:
APPEAL DISMISSED

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - POLICE OFFICER SOLICITING BRIBE - SIMILAR OFFENCE ON FORM 1 - PLEA OF GUILTY - SENTENCE - NO ERROR BY JUDGE IN DECLINING TO ORDER SUSPENSION OF SENTENCE - NO SENTENCING ERROR OTHERWISE

LEGISLATION CITED:

Police Act 1990
Crimes Act 1900

CASES CITED:
Attorney General's Application No 1 of 2002 2002 56 NSWLR 146
R v Nomchong, unreported NSWCCA 10 April 1997
R v Pangallo 1991 56 A Crim R 441
R v Thomson & Houlton 2000 49 NSWLR 383

PARTIES:
Regina v Scott Noel O'Mally

FILE NUMBER(S):
CCA 2005/295

COUNSEL:
J. Girdham (Crown)
J. Glissan QC and W. Wilcher (Applicant)

SOLICITORS:
S. Kavanagh (DPP)
Terry Alexander Steer (Applicant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0748

LOWER COURT JUDICIAL OFFICER:
Kinchington ADCJ

2005/295

STEIN AJA
GROVE J
HOWIE J
28 April 2005

REGINA v SCOTT NOEL O’MALLY

Judgment

1 STEIN AJA: The court is in a position to proceed to judgment in this matter now. I will ask Grove J to deliver the first judgment of the court.

2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Kinchington ADCJ in the Sydney District Court on 17 September 2004. The applicant, at relevant times a senior constable of police, pleaded guilty to soliciting a bribe contrary to s 200(1) of the Police Act 1990 for which the prescribed maximum penalty is seven years’ imprisonment and/or a fine. In passing sentence his Honour was asked to take into account, pursuant to the Form 1 procedure, one further similar offence. The applicant was sentenced to imprisonment for two years commencing on 17 September 2004 with a non-parole period of sixteen months commencing on that date and expiring on 16 January 2006. Given the length of sentence, release to parole on that date ought to have been ordered by the court, but this is an omission which does not require resort to appeal in order to be corrected.

3 The facts in relation to the offence charged were that at about 8.15am on 14 January 2004 the applicant was performing highway patrol duties on the F3 freeway near Ourimbah. He stopped a vehicle being driven by a seventeen year old provisionally licensed driver named Daniel Phillips. There was another occupant of the car. The applicant asserted to Mr Phillips that he was travelling at 145 kph although later in the conversation he mentioned 140 kph. Mr Phillips responded that he may have exceeded 90 kph which was applicable to him as a provisional driver but disputed the applicant’s assertions.

4 The applicant commenced to fill in an infringement notice but did not complete it. Conversation revealed that Mr Phillips worked in a part time job concerning Quad motorbikes. The applicant indicated that he…

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 Regina v O'Mally

Details

AGLC: Regina v O'Mally [2005] NSWCCA 166
Case: [2005] NSWCCA 166
Decision Date: 28 April 2005

CaseChat Overview and Summary

In the matter of Regina v O'Mally, the defendant faced charges related to soliciting a bribe from a police officer. The case was heard in the relevant Australian court, where the defendant entered a plea of guilty to the charge. The legal issues that the court needed to address centred around the appropriate sentencing for the offence and whether the judge erred in declining to order a suspension of the sentence.

The court considered the arguments presented regarding the sentencing. It was necessary to evaluate whether the judge had erred in any way when determining the sentence for the defendant. The court examined whether the sentence imposed was manifestly inadequate or excessive, or whether there was any other error in the sentencing process. Specifically, the court reviewed the judge's decision not to suspend the sentence and assessed whether this was justified under the circumstances.

Upon thorough examination, the court found that the judge had not erred in declining to order a suspension of the sentence. The court concluded that the sentence was appropriate given the nature of the offence and the defendant's plea of guilty. Additionally, the court found no other errors in the sentencing process. Therefore, the court upheld the sentence imposed by the judge.

In light of the findings, the court confirmed the sentence as decided by the judge without any alterations or suspensions. The defendant was required to adhere to the terms of the sentence as determined.

Orders