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DPP v Osborn

DPP v Osborn

Case [2018] VSCA 207 23 August 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0208

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
BRANDON OSBORN	Respondent

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JUDGES:	BEACH, McLEISH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 July 2018
DATE OF JUDGMENT:	23 August 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 207
JUDGMENT APPEALED FROM:	R v Osborn [2017] VSC 535 (Keogh J)

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CRIMINAL LAW – Director’s appeal – Sentence – One charge of manslaughter by unlawful and dangerous act and one charge of prohibited person possess a firearm – Respondent shot partner in head at close range – No challenge to sentencing judge’s finding that respondent did not intend gun to discharge when he pulled trigger and therefore did not intend to cause physical harm – Whether finding that offence ‘tends towards a lower level of gravity of manslaughter’ constituted specific error – Whether sentence manifestly inadequate – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr O P Holdenson QC with Mr J O’Connor	James Dowsley & Associates

BEACH JA
WEINBERG JA:

We have had the advantage of reading in draft the reasons for judgment prepared by McLeish JA. His Honour has concluded that this appeal by the Director of Public Prosecutions (‘the Director’) against a total effective sentence of nine years and two months’ imprisonment, with a non-parole period of six years, should be allowed. His Honour does so on the basis of ground one only, namely that the total effective sentence and the individual sentences were manifestly inadequate. He rejects the second ground of appeal, which asserts specific error. We entirely agree with his Honour’s reasons for rejecting that second ground of appeal.

Justice McLeish would order that the total effective sentence be increased to one of 12 years’ imprisonment, with a non-parole period of eight years. Moreover, his Honour states, for the purposes of s 6AAA of the Sentencing Act 1991, that had the respondent not pleaded guilty he would have imposed a total effective sentence of 14 years and six months with a non-parole period of 11 years.

For the reasons that follow, we respectfully disagree with his Honour’s conclusion, and would instead dismiss this appeal. We consider that the total effective sentence and individual sentences imposed, as well as the non-parole period, may properly be regarded as somewhat lenient. They are not the sentences that we, ourselves, may have imposed. That said, they do not, in our view, meet the high threshold of being manifestly inadequate. In other words, they were not wholly outside the range of sentences reasonably available to the sentencing judge.

If it be necessary for the Director to demonstrate an error of principle, separate and apart from establishing manifest inadequacy,[1] the submissions put forward on behalf of the Director fail to do so.
[1]We should indicate that we agree entirely with the approach taken by McLeish JA to the preliminary objection to the competence of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Osborn

Details

AGLC: Director of Public Prosecutions v Brandon Osborn [2018] VSCA 207
Case: [2018] VSCA 207
Decision Date: 23 August 2018

CaseChat Overview and Summary

The Director of Public Prosecutions (DPP) appealed against the sentence imposed on Osborn, who was convicted of manslaughter by an unlawful and dangerous act and for possessing a firearm while being a prohibited person. The sentencing judge found that Osborn did not intend for the gun to discharge when he pulled the trigger and therefore did not intend to cause physical harm to his partner. The court was required to decide whether the sentencing judge erred by finding that the offence tended towards a lower level of gravity of manslaughter and whether the sentence was manifestly inadequate.

The Court of Appeal found that the sentencing judge did not err in concluding that the offence tended towards a lower level of gravity of manslaughter. The court noted that the sentencing judge was required to consider the degree of moral culpability, which involved an assessment of the accused's state of mind at the time of the offence. The court held that the sentencing judge's finding that Osborn did not intend to cause physical harm to his partner was not challenged on appeal and was open to the sentencing judge to make. The Court of Appeal also found that the sentence was not manifestly inadequate. The court held that the sentencing judge had taken into account all relevant factors and had exercised judicial discretion in imposing the sentence.

The Court of Appeal dismissed the appeal and affirmed the sentence imposed by the sentencing judge. The court held that the sentencing judge had exercised their discretion properly and had not erred in their assessment of the degree of moral culpability. The court further held that the sentence was not manifestly inadequate and that the appeal was accordingly dismissed.

Orders