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Court of Criminal Appeal 2 April 2007

Osborne v R

[2007] NSWCCA 91

Assault & violenceTheft & propertyTraffic & drivingFirearms & weaponsPublic order & justice offences
CRIMINAL LAW APPLICATION TO APPEAL AGAINST SENTENCES SIX FORM 1 OFFENCES AGREED STATEMENT OF FACTS LENGTHY CRIMINAL HISTORY SUBJECTIVE CIRCUMSTANCES

Citation: Osborne v R [2007] NSWCCA 91
Court: New South Wales Court of Criminal Appeal
Date: 2 April 2007
Judges: Simpson J, Howie J, Hislop J

Background

The applicant pleaded guilty in the District Court to two counts: using an offensive weapon with intent to commit an indictable offence (assault), and using an offensive weapon to avoid apprehension. He also asked the court to take into account six further offences on a Form 1, including stealing a motor vehicle, dangerous driving, resisting police, and driving whilst disqualified.

The offences arose from a series of incidents in January and February 2005. The applicant stole a large truck and used it to menace another driver on multiple occasions over a single night, at one point wielding a wooden bat or piece of log approximately one metre long. When police responded, the applicant reversed the truck into a police vehicle at speed before leading officers on a pursuit.

The sentencing judge imposed five years' imprisonment with a three-year non-parole period on each count, to be served concurrently from 30 April 2005. The applicant, appearing in person on appeal, sought leave to challenge those sentences.

  • Whether the decision not to call the applicant as a witness at the sentencing hearing constituted an error by counsel, or otherwise gave rise to a ground of appeal
  • Whether the absence of a pre-sentence report resulted in a miscarriage of justice
  • Whether the applicant's amphetamine use and resulting paranoid state at the time of the offences were mitigating circumstances
  • Whether the sentences imposed were within the available range for offences of this nature

Decision

The Court granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge's approach.

On the question of counsel not calling the applicant to give evidence at the sentencing hearing, the Court found this was a matter within the professional discretion of the applicant's counsel. No error was established on this ground.

Regarding the absence of a pre-sentence report, the Court noted that such reports ordinarily form part of the Crown material at sentencing, but found that all relevant subjective matters had been addressed in the psychiatric reports before the sentencing judge. The Court held that no miscarriage of justice arose from the omission.

The applicant's oral submissions that he had been under the influence of amphetamines ("Ice") and was in a paranoid state were rejected as mitigating factors. The Court observed that driving while affected by drugs is itself a serious offence, and that the sentencing judge was already aware of the applicant's drug use and history. The Court concluded the sentences were well within the range available for very serious offences of this nature.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a decision by defence counsel not to call an accused as a witness at a sentencing hearing falls within the proper exercise of professional discretion and does not automatically give rise to a ground of appeal.
  • No miscarriage of justice arises from the absence of a pre-sentence report where the sentencing judge has access to comprehensive psychiatric evidence covering all relevant subjective circumstances.
  • Amphetamine intoxication at the time of an offence is not a mitigating circumstance; driving while drug-affected is itself a serious criminal matter, and reliance on that state cannot assist an offender at sentence.
  • In dismissing the appeal, the Court affirmed that sentences for serious weapon-related offences, assessed against a background of a lengthy criminal history, will be upheld where no error in the sentencing process is demonstrated.
  • An error in the sentencing judge's calculation of a disqualification period, not challenged by the Crown on appeal, was noted but left uncorrected, resulting in the applicant receiving a shorter aggregate disqualification than the judge intended.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3, Division 3, s 34

Cases:
- R v Birks (1990) 19 NSWLR 677
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Israil [2002] NSWCCA 255
- R v Jiminez [1999] NSWCCA 7
- R v Pearce, unreported, NSWCCA, 1 November 1996