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Court of Criminal Appeal 21 April 2015

R v Omar

[2015] NSWCCA 67

Sexual offencesAssault & violenceTheft & property
CRIMINAL LAW REDUCED NEED FOR SPECIFIC DETERRENCE NEED FOR GENERAL DETERRENCE MODERATED PAROLE PERIOD OF 3 YEARS AND 11 MONTHS CROWN APPEAL DISMISSED

Citation: R v Omar [2015] NSWCCA 67
Court: NSW Court of Criminal Appeal
Date: 21 April 2015
Judges: Simpson J, Rothman J, Bellew J

Background

The respondent pleaded guilty in August 2013 to three counts of aggravated sexual intercourse without consent and one count of aggravated robbery whilst armed with an offensive weapon causing wounding. The sexual offending occurred on 17 July 2004, when the respondent followed a woman on her morning walk, subjected her to a sustained and violent assault, and committed multiple serious sexual acts. The armed robbery occurred on 13 September 2006 at a butcher's shop in Auburn.

The respondent was not identified until December 2012, when DNA matching linked him to the offences committed years earlier. He was arrested and charged at that point and subsequently entered guilty pleas.

In September 2014, the District Court sentenced the respondent to a total term of 6 years and 10 months with a non-parole period of 3 years and 11 months. The Director of Public Prosecutions appealed to the Court of Criminal Appeal, arguing the sentences were manifestly inadequate.

  • Whether the total sentence of 6 years and 10 months with a non-parole period of 3 years and 11 months was manifestly inadequate for offences of this gravity.
  • Whether the sentencing judge properly weighed the respondent's complete rehabilitation from illicit drug use as a mitigating factor reducing the need for specific deterrence.
  • Whether the sentencing judge correctly moderated the need for general deterrence on account of the respondent's mental illness.
  • Whether the delay between the offending and the arrest was relevant to sentence, and on what basis.

Decision

The Court of Criminal Appeal dismissed the Crown appeal by unanimous agreement. Bellew J (with whom Simpson and Rothman JJ agreed) acknowledged the sentences were lenient, but found they were not unreasonable or plainly unjust, applying the test from Dinsdale v R (2000) 202 CLR 321. Rothman J added that even if the Court would itself have imposed a heavier sentence, that alone is insufficient to warrant interference with a sentencing discretion.

A central consideration was the respondent's complete rehabilitation from illicit drug use in the years between the offending and his arrest. The sentencing judge had given this significant weight in reducing the need for personal (specific) deterrence. Bellew J accepted that rehabilitation was a powerful mitigating factor in the particular circumstances, noting also that the respondent had incomplete or no memory of the offending and had not deliberately concealed himself from authorities during the intervening period. This distinguished the case from situations where an offender knowingly evaded detection.

The sentencing judge had also found that the respondent suffered from a mental illness, which moderated the need for general deterrence. The Court of Criminal Appeal accepted that this finding, reached on the evidence before the District Court, was a legitimate basis for reducing the weight given to general deterrence.

On the question of delay, the Court confirmed that whether delay is relevant, and on what basis, depends on the circumstances of each case. Because the respondent had not argued that the delay caused him stress and anxiety attributable to the criminal justice system, the principle from Todd (which can operate in such circumstances) did not apply here.

Orders Made

  • The Crown appeal is dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that the test for appellate intervention on a Crown appeal is whether the sentences are unreasonable or plainly unjust, not merely whether the appellate court would have imposed a heavier sentence.
  • A finding of complete rehabilitation from illicit drug use, occurring in the period between the commission of offences and arrest, can operate as a powerful mitigating factor that substantially reduces the need for specific deterrence, even where the underlying offending was very serious.
  • Where a sentencing judge makes a finding of mental illness, that finding may legitimately moderate the weight given to general deterrence in fixing the appropriate sentence.
  • The relevance of delay between offending and sentencing is fact-specific. The principle that delay attributable to the criminal justice system can mitigate sentence through demonstrated stress and anxiety did not apply where the respondent made no such submission and had not knowingly evaded authorities.
  • Under the residual discretion recognised in CMB v Attorney-General (NSW) [2015] HCA 9, a Crown appeal will not succeed merely because the appellate court regards the sentence as lenient; the Crown must also satisfy the court that the residual discretion not to intervene should not be exercised.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 317 ALR 308
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321