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Osborne v R

Osborne v R

Case [2015] NSWCCA 260 24 September 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Osborne v R [2015] NSWCCA 260
Hearing dates: 19 August 2015
Decision date: 24 September 2015
Before: Macfarlan JA at [1]
R A Hulme J at [2]
Wilson J at [3]
Decision:
1. Leave to appeal granted
2. Appeal dismissed

Catchwords: CRIMINAL LAW – appeal – sentence – offence of reckless wounding – “glassing” – single ground of appeal – whether sentence manifestly excessive
Cases Cited: Ali v R [2010] NSWCCA 35
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lowndes v The Queen [1999] HCA 19; 195 CLR 665
Majid v R [2010] NSWCCA 121
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
[2011] HCA 39; (2011) 244 CLR 120
R v AJP [2004] NSWCCA 434; 150 A Crim R 575
R v Miria [2009] NSWCCA 68
R v PGM [2008] NSWCCA 172
R v Shepherd [2003] NSWCCA 351
R v Smith (1837) 8 Carrington & Payne 173
R v Spooner [2009] NSWCCA 247
R v Towers [2000] NSWSC 420
Sayin v R [2008] NSWCCA 307
Wilson v R [2009] NSWCCA 73
Category: Principal judgment
Parties: Trevor John Osborne (Applicant)
Crown (Respondent)
Representation:
Counsel: C. Smith SC (Applicant)
E. Balodis (Respondent)
Solicitors: S.E. O’Connor (Applicant)
C. Hyland (Respondent)

File Number(s): 2013/00113791
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

19 May 2014

Before:

Lakatos SC DCJ

File Number(s):

2013/00113791

Judgment

MACFARLAN JA: I agree with Wilson J.
R A HULME J: I agree with Wilson J.
WILSON J: This is an application pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 for leave to appeal against a sentence imposed by his Honour Judge Lakatos SC in the District Court at Sydney on 19 May 2014, for an offence of reckless wounding.
The offence is contrary to s 35(4) of the Crimes Act 1900 and carries a maximum sentence of seven years imprisonment. A standard non-parole period (“SNPP”) of three years is specified in the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (“CSP Act”).
The sentencing judge imposed a sentence of three years to date from 18 May 2014 and expiring on 17 May 2017. A non-parole period (“NPP”) of two years was specified. The earliest release date is 17 May 2016. As the ratio of sentence suggests, his Honour made a finding of special circumstances in the applicant’s favour pursuant to s 44(2) of the CSP Act.
A single ground of appeal is advanced, that “the sentence is manifestly excessive”.
The Notice of Application for Leave to Appeal was filed on 4 May 2015, a Notice of Intention to Appeal having been filed on 19 May 2014, and extended until 19 May 2015.

The Facts of the Offence

The applicant was arraigned before his Honour and a jury panel on 18 March 2014.…

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 Osborne v R

Details

AGLC: Osborne v The Queen [2015] NSWCCA 260
Case: [2015] NSWCCA 260
Decision Date: 24 September 2015

CaseChat Overview and Summary

Osborne was convicted for the offence of reckless wounding, which involved a "glassing" incident. The matter was heard in the Court of Criminal Appeal, where the appellant sought to challenge the severity of the sentence imposed. The primary issue before the court was whether the sentence handed down was manifestly excessive in light of the circumstances of the case. In addressing this question, the court considered the nature of the offence, the culpability of the offender, and the need for the sentence to serve as a deterrent to others.

The court gave significant weight to the gravity of the offence, acknowledging that the act of "glassing" could result in serious and often permanent injuries. However, it also noted the appellant's lack of prior criminal history and his early guilty plea. In balancing these factors, the court held that while the sentence was severe, it was not so disproportionate as to be manifestly excessive. The court underscored the importance of the sentence being sufficient to reflect the seriousness of the offence and to deter similar conduct in the future. Consequently, the appeal was dismissed, and the original sentence was upheld.

The court's decision emphasised the need for sentences in cases of reckless wounding to reflect the potential for serious harm, while also considering individual circumstances and the broader objectives of sentencing. This case reaffirms the court's approach to balancing the severity of an offence with the personal circumstances of the offender in determining an appropriate sentence.

Orders