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Court of Criminal Appeal 17 September 2013

Omorogbe v R

[2013] NSWCCA 201

Also reported as (2013) 234 A Crim R 556
Drugs
CRIMINAL LAW GUILTY PLEA WHETHER SENTENCE MANIFESTLY EXCESSIVE APPEAL ALLOWED SENTENCE QUASHED SENTENCED

Citation: Omorogbe v R [2013] NSWCCA 201
Court: NSW Court of Criminal Appeal
Date: 17 September 2013
Judge(s): Macfarlan JA, Adams J, Latham J

Background

The appellant pleaded guilty to attempted possession of a marketable quantity of cocaine. At the sentencing hearing, the Crown tendered a Statement of Facts (without objection) revealing that the appellant had previously collected a package from a newsagency on behalf of the same person whose package was the subject of the offence.

The sentencing judge refused to treat the offence as an isolated incident, concluding that this earlier collection meant the appellant could not receive the leniency ordinarily extended to a first offender. The appellant sought leave to appeal on the grounds that the sentence was manifestly excessive and that the sentencing judge erred in drawing that adverse inference from the prior collection.

  • Whether the sentencing judge erred by refusing to treat the offence as an isolated incident, based on evidence of a prior package collection
  • Whether the evidence of the earlier newsagency collection was capable of giving rise to an inference that the appellant had engaged in prior criminal or disreputable conduct
  • Whether, if error was established, a lesser sentence was warranted in all the circumstances

Decision

The Court split two to one on the central question. Macfarlan JA and Adams J (the majority) held that the sentencing judge erred in treating the earlier newsagency collection as reflecting adversely on the appellant. The evidence was capable of founding no more than a suspicion of prior wrongdoing. Any adverse inference beyond that, the majority found, would be speculation.

Macfarlan JA distinguished the present facts from those in Weininger v The Queen (2003) 212 CLR 629, where the High Court upheld a similar sentencing approach. In Weininger, there had been a clear admission of involvement in prior illegal drug importation. Here, the appellant made no admission that he knew the earlier collection involved anything unlawful. The Statement of Facts itself recorded only that the appellant had collected a package as a favour and denied being paid for involvement in collecting packages containing narcotics, which did not constitute an admission of knowing participation in criminality.

Latham J dissented. Her Honour was of the view that, applying Weininger, the sentencing judge was entitled to treat the prior collection as sufficient to decline treating the offence as an isolated incident, and that the sentence imposed fell within the appropriate range demonstrated by comparable cases.

Despite finding error, the majority's conclusion on re-sentencing requires some clarification. The orders made were those proposed by Latham J: the appeal was ultimately dismissed. The majority found error in the sentencing process, but the orders recorded in the judgment reflect the dismissal proposed by Latham J, suggesting that on the question of whether a lesser sentence was warranted, the ultimate disposition did not favour the appellant.

Orders Made

  • Extension of time within which to file the appeal granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court is not entitled to treat prior conduct as reflecting adversely on an offender unless the material rationally gives rise to an inference of prior criminal or disreputable behaviour, not merely a suspicion.
  • The High Court's decision in Weininger permits a sentencing court to decline to treat an absence of prior convictions as evidence of good character, but only where there is a proper evidentiary basis: a bare suspicion does not suffice.
  • Where an accused makes no admission of knowing involvement in wrongdoing in connection with prior conduct, that prior conduct cannot found an adverse inference displacing the benefit of being treated as a first offender.
  • Establishing error in the sentencing process does not automatically trigger re-sentencing. Under s 6(3) of the Criminal Appeal Act 1912, the Court must also be satisfied that some lesser sentence is warranted in law.
  • The decision confirms the principle from R v Simpson [2001] NSWCCA 534 that a sentence falling within the appropriate range may still be the subject of intervention, but it also illustrates that the Court will not re-sentence merely because procedural error is identified.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16A(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Code (Cth)

Cases
- Weininger v The Queen [2003] HCA 14; 212 CLR 629
- Aoun v The Queen [2007] NSWCCA 292
- Hanania v R [2012] NSWCCA 220
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Taru [2002] NSWCCA 391
- R v Phu Long Pham (unreported, NSWDC, 20 January 2012)