Osborne v Regina - [2011] NSWCCA 112

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Osborne v Regina [2011] NSWCCA 112
Hearing dates: 11 May 2011
Decision date: 11 May 2011
Before: Johnson J at 1; Hall J at 2; Price J at 3
Decision:
(i) Leave to appeal granted
(ii) Appeal dismissed

Catchwords: CRIMINAL LAW - appeal - sentencing - robbery - repeat offending - whether sentences manifestly excessive
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Fernando [2002] NSWCCA 28
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Category: Principal judgment
Parties: Beau Allan Osborne (Applicant)
Crown
Representation: V Lydiard (Crown)
Beau Allan Osborne (in person, unrepresented)
Director of Public Prosecutions (Crown)

File Number(s): 2008/0098433
Decision under appeal

Date of Decision:

2009-05-19 00:00:00

Before:

Coolahan DCJ

Judgment

JOHNSON J: I agree with the reasons and orders proposed by Price J.

HALL J: I agree with Price J

PRICE J: Beau Allan Osborne, the applicant, seeks leave to appeal against the severity of the sentences imposed upon him in the District Court at Newcastle on 19 May 2009 by Coolahan DCJ (the judge). He had been arraigned upon an indictment containing six counts of robbery contrary to s 94 Crimes Act 1900 and had pleaded not guilty to each count. Following a trial before a jury, the applicant was found guilty of each of the offences.

The judge imposed a total effective sentence of 6 years 6 months with a non-parole period of 4 years. The earliest date the applicant is eligible for release to parole is 21 April 2012. The individual sentences were as follows:

Counts 1 and 2: On each count, imprisonment for a fixed term of 2 years commencing on 22 April 2008 and expiring on 21 April 2010;

Counts 3 and 4: On each count, imprisonment for a fixed term of 2 years 2 months commencing on 22 October 2008 and expiring on 21 December 2010;

Count 5: Imprisonment for a fixed term of 2 years 4 months commencing on 22 April 2009 and expiring on 21 August 2011; and

Count 6: Imprisonment for 5 years commencing on 22 October 2009 and expiring on 21 October 2014 with a non-parole period of 2 years 6 months expiring on 21 April 2012.

An offence contrary to s 94 Crimes Act is punishable by imprisonment for 14 years.

In this appeal the applicant is self-represented. The sole ground of appeal is that the [total] sentence was excessive.

Before proceeding further, it is convenient to record the facts of each of the offences as found by the judge (AB 13-14):

"The charges arise out of robberies which took place on four building societies. The brief facts are that at about 9.20am on 22 July…

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 Regina

Details

AGLC: Osborne v Regina [2011] NSWCCA 112
Case: [2011] NSWCCA 112
Decision Date: 11 May 2011

CaseChat Overview and Summary

The appellant, Osborne, was convicted of robbery and appealed against the sentence imposed by the court. The appeal was heard in the High Court of Australia. Osborne was found guilty of robbing a convenience store and was sentenced to imprisonment. He argued that the sentence was manifestly excessive, particularly given his previous criminal history.

The central legal issue before the court was whether the sentence imposed was manifestly excessive in light of Osborne's prior criminal record and other relevant factors. The court had to consider the principles of sentencing for repeat offenders and whether the sentence imposed was disproportionate to the crime committed. The court also had to examine whether the trial judge had considered all relevant mitigating and aggravating factors in imposing the sentence.

The court examined the sentencing principles applicable to repeat offenders and noted that while a higher sentence may be appropriate for such offenders, the sentence must still be proportionate to the gravity of the offence. The court held that the trial judge had appropriately considered the appellant's criminal history and other relevant factors in imposing the sentence. The court concluded that the sentence was not manifestly excessive and dismissed the appeal. The sentence imposed by the trial judge was affirmed.

Orders