Director of Public Prosecutions v Osmani

[2023] ACTSC 66

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Osmani

Citation:

[2023] ACTSC 66

Hearing Date:

30 March 2023

DecisionDate:

30 March 2023

Before:

Mossop J

Decision:

The application to adjourn the sentencing hearing is dismissed

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Adjournment – Application to adjourn arising from receipt of pre-sentence report – application not supported by evidence as to steps taken prior to receipt of report – application dismissed

Parties:

Director of Public Prosecutions

Albion Osmani ( Offender)

Representation:

Counsel

N Deakes ( DPP)

A Doig ( Offender)

Solicitors

Director of Public Prosecutions

Tim Sharman Solicitors ( Offender)

File Number:

SCC 259 of 2022

MOSSOP J:

Introduction

1. Today is 30 March 2023. This date for Mr Osmani’s sentencing hearing was set on 3 November 2022. The pre-sentence report which was received on 29 March 2023 makes some reference to mental health issues. These include feelings of anxiety and depression throughout his life, seeing a psychiatrist once per week as a result of a referral from his general practitioner, a recent decline in his mental health attributed to the current offence before the court and that Mr Osmani “holds a suspicion that he may be on the Autism spectrum”.

1. As a result of receiving the pre-sentence report the solicitor for Mr Osmani indicated that he would be making an application for an adjournment of the sentencing hearing. Counsel for Mr Osmani made that application today. He also submitted that if an adjournment is granted, an intensive correction order assessment should be ordered.

1. At present the court has one less judge than it should. This has the effect that dates for short matters including sentences are difficult to come by. There is therefore a premium so far as the disposition of the court’s overall caseload in the efficient conduct of sentencing proceedings. Particularly in criminal matters where the discipline of the potential for adverse costs orders is lacking, the efficient disposition of the work of the court requires the cooperation and professional diligence of practitioners appearing in such matters.

1. In the present case there was no evidence as to whether instructions had been taken from the offender prior to the setting of the hearing date or at any time prior to the receipt of the pre-sentence report. It should be axiomatic that the ordering of a pre-sentence report does not avoid the need for practitioners to take proper instructions from the client relevant to sentencing or allow the complete deferral of thought about the sentencing hearing until after the pre-sentence report is received.

1. To simply allow the adjournment of the matter generally in the present circumstances would be, to use language that should be well-known practitioners in the Territory, wash away the drowsy procrastination on the part of the legal representatives of the offender. Having said that, there is no evidence that the offender himself is the source of that drowsy procrastination. Although the mental health issues do not, at present, appear to be of a compelling nature for the purposes of the sentencing hearing, it is appropriate to permit some further evidence to be put on in relation to this issue. I will therefore hear the sentencing submissions today to the full extent that is possible but permit a further opportunity to put on any additional evidence within a limited period. And I will also consider, having heard the submissions, whether I should also take the opportunity to order an intensive correction assessment.

I certify that the preceding five [5] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop

Associate:

Date: 12 April 2023