AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
13
Court of Criminal Appeal 23 April 2004

Regina v Ohar

[2004] NSWCCA 83

Also reported as (2004) 59 NSWLR 596
Assault & violenceDrugsTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING PRINCIPLES DRUG COURT COMPETENCY OF APPEALS DELAY IN INSTITUTING CROWN APPEAL

Citation: Regina v Ohar [2004] NSWCCA 83
Court: Court of Criminal Appeal, New South Wales
Date: 23 April 2004
Judge(s): Studdert J, James J, Dunford J

Background

The offender pleaded guilty to a large number of offences across three groups: a series of property and minor offences committed between 1995 and 2000, two serious indictable offences (aggravated car-jacking and two counts of using an offensive weapon to prevent lawful apprehension) committed on 9 October 2002, and two summary offences from the same date. All were sentenced together in the Parramatta Drug Court by Judge Milson on 14 April 2003.

The sentences imposed included terms effectively commencing from the date of the October 2002 arrest, with cumulative periods running to a total of six years and nine months. The more serious offences attracted fixed terms or reduced non-parole periods, and the Drug Court's sentencing approach raised questions about the application of statutory non-parole periods to the offences in the second group.

Both the Crown and the offender sought to challenge aspects of the sentences on appeal. The Crown contended the sentences were manifestly inadequate, while the offender sought to challenge elements of the structure of the sentences imposed.

  • Whether the Crown appeal was competent, given the delay in filing and questions about applicable time limits under the Criminal Appeal Act 1912 and the Criminal Appeal Rules
  • Whether the Court of Criminal Appeal was properly constituted to hear appeals from the Drug Court in respect of offences dealt with under different parts of the Drug Court Act 1998
  • Whether the Drug Court, when sentencing for the second group of offences under Part 3 of the Drug Court Act, was required to apply statutory non-parole periods under the Crimes (Sentencing Procedure) Act
  • Whether the sentences imposed by the Drug Court were attended by error, including whether they were manifestly inadequate (Crown) or manifestly excessive (offender)

Decision

Crown appeal competency and delay: The Court addressed whether the Crown was bound by the 28-day time limit in s 10(1)(a) of the Criminal Appeal Act 1912. James J, with whom Studdert J agreed, held that the time limits in that provision did not bind the Crown. Dunford J added a textual reason: the word "person" in s 10(1)(a) refers only to the convicted or sentenced individual, not to the Crown or the Director of Public Prosecutions acting on the Crown's behalf. Despite the Crown appeal being competent, it was ultimately dismissed.

Court constitution and jurisdiction: The Court examined which provisions of the Drug Court Act governed each group of offences and what that meant for the constitution of the Court hearing the appeals. The offences in the second and third groups were dealt with under Part 3 (ss 24(1)(a) and (b)) rather than Part 2, which created distinct jurisdictional questions. Dunford J noted ongoing difficulty with the proposition that an appeal from a District Court judge sitting in the Drug Court under s 24(1)(b) could lie to the District Court constituted by another District Court judge, describing it as "an appeal from Caesar to Caesar." He indicated his earlier reasoning in R v El-Hamid on this point would need reconsideration if the question arose directly again.

Statutory non-parole periods: The Court considered whether Judge Milson had been required to impose the statutory non-parole periods prescribed by the Crimes (Sentencing Procedure) Act for the aggravated car-jacking and offensive weapon offences. The analysis addressed how the Drug Court's sentencing jurisdiction interacts with those statutory requirements, including whether any adjustments to the standard approach were justified on the facts.

Outcome on the merits: The Crown failed to establish that the sentences were manifestly inadequate in the relevant sense. The Court applied the established principle from House v The King that appellate intervention in sentencing requires identification of error, not merely a different view of the appropriate sentence. The offender's application was granted leave but the appeal on that side was also dismissed, indicating no error in the offender's favour was established either.

Orders Made

  • Crown appeal dismissed
  • Offender's application for leave to appeal: leave granted, but appeal dismissed

Key Takeaways

  • The 28-day time limit in s 10(1)(a) of the Criminal Appeal Act 1912 does not bind the Crown when instituting a sentence appeal; the word "person" in that provision refers only to the convicted or sentenced individual.
  • Questions about the proper constitution of the Court of Criminal Appeal for appeals from Drug Court sentences depend on which part of the Drug Court Act 1998 governed the original sentencing, and these questions remain live where the Drug Court exercises District Court jurisdiction under Part 3.
  • Under the principle in House v The King, a Crown sentence appeal requires identification of a specific sentencing error; the Crown's view that a heavier sentence would have been appropriate does not alone justify appellate intervention.
  • Dunford J expressly flagged that the reasoning in R v El-Hamid regarding appeals from Drug Court sentences under s 8 would need reconsideration when the question arises directly, signalling that this area of law was not fully settled.
  • The interaction between the Drug Court's special sentencing regime and the statutory non-parole period provisions in the Crimes (Sentencing Procedure) Act raised questions the Court addressed in the context of the specific offences and structure of sentences before it.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW)
- Drug Court Act 1998 (NSW)

Cases:
- House v The King (1936) 55 CLR 499
- Johnson v The Queen [2004] HCA 15
- Pearce v The Queen (1998) 194 CLR 610
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584
- R v Baker [2000] NSWCCA 85
- R v El-Hamid [2000] NSWCCA 497
- R v Giam (No. 2) (1999) 109 A Crim R 348
- R v Hallocoglu (1992) NSWLR 67
- R v Hammoud (2000) 118 A Crim R 66
- R v Hernando [2002] NSWCCA 489
- R v Itamua [2000] NSWCCA 502
- R v Wong & Leung (1999) 108 A Crim R 531