O'MEARA v R [2008] NSWCCA 154

O'MEARA v R [2008] NSWCCA 154

It could be inferred from the circumstances, including the then common practice, the imposition of the maximum term for periodic detention, the likely excessiveness of three years if served full-time, and the sentencing judge's remarks, that the original sentences were lengthened because they were to be served by periodic detention. Once the periodic detention orders were cancelled and the unexpired portions became full-time imprisonment, a miscarriage of justice arose. The Court therefore extended time, granted leave, allowed the appeal, quashed the original sentences and re-sentenced the applicant.

Jurisdiction
Australia
Judgment Date
14 July 2008
Procedural Posture
Criminal Sentence Appeal / Application for Extension of Time, Application for Leave to Appeal, and Appeal Against Sentences
Outcome
Extension of time granted; leave to appeal granted; appeal allowed; original sentences quashed; applicant re-sentenced and ordered released on parole on 30 September 2008.
Legal Topics
['periodic Detention' 'cancellation of Periodic Detention Orders' 'miscarriage of Justice After Sentencing' 're Sentencing' 'supplying a Prohibited Drug']
['criminal Law' 'sentencing'] ['periodic Detention' 'cancellation of Periodic Detention Orders' 'miscarriage of Justice After Sentencing' 're Sentencing' 'supplying a Prohibited Drug']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Extension of Time, Application for Leave to Appeal, and Appeal Against Sentences

Legal Issues

  1. 1 ['Whether time should be extended and leave granted to appeal against sentences imposed on 15 December 1995.' 'Whether the original sentences should be quashed because the sentencing judge imposed longer terms on the basis that they would be served by way of periodic detention, but the periodic detention orders were later cancelled and the sentences became full-time imprisonment.' 'Whether the applicant should be re-sentenced under the Crimes (Sentencing Procedure) Act with credit for time served in periodic detention and full-time custody.']

Ratio Decidendi

It could be inferred from the circumstances, including the then common practice, the imposition of the maximum term for periodic detention, the likely excessiveness of three years if served full-time, and the sentencing judge's remarks, that the original sentences were lengthened because they were to be served by periodic detention. Once the periodic detention orders were cancelled and the unexpired portions became full-time imprisonment, a miscarriage of justice arose. The Court therefore extended time, granted leave, allowed the appeal, quashed the original sentences and re-sentenced the applicant.

Court Disposition

Extension of time granted; leave to appeal granted; appeal allowed; original sentences quashed; applicant re-sentenced and ordered released on parole on 30 September 2008.

Orders

  • ['Extend the time for applying for leave to appeal against the sentences imposed by Judge Johnston on 15 December 1995 to the date of the filing of these applications.' 'Leave to appeal granted.' 'Appeal allowed.' 'Quash the sentences imposed by Judge Johnston.' 'In lieu thereof sentence the applicant on each of the...