Osborne v The Queen
[2007] NSWCCA 91
•2 April 2007
New South Wales
Court of Criminal Appeal
CITATION: Osborne v R [2007] NSWCCA 91 HEARING DATE(S): 28 March 2007
JUDGMENT DATE:
2 April 2007JUDGMENT OF: Simpson J at 1; Howie J at 36; Hislop J at 37 DECISION: Leave to appeal granted; appeal dismissed. CATCHWORDS: CRIMINAL LAW - application to appeal against sentences - using offensive weapon with intent to commit indictable offence (assault) - using an offensive weapon to avoid apprehension - six Form 1 offences - agreed statement of facts - lengthy criminal history - subjective circumstances - drug use - mental illness - applicant not called as witness at trial - decision not to call applicant within professional discretion of applicant's counsel - rehabilitation - no pre-sentence report - no miscarriage of justice in absence of pre-sentence report - amphetamine use not mitigating circumstance - no error in sentencing process - sentences within range available for serious offences LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, Part 3, Division 3, s34 CASES CITED: 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 1996PARTIES: Leonard Osborne - Applicant
Crown - RespondentFILE NUMBER(S): CCA 2006/2820 COUNSEL: J Dwyer - Crown SOLICITORS: Applicant in person
S Kavanagh - Crown
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/31/0339 LOWER COURT JUDICIAL OFFICER: Andrew ADCJ LOWER COURT DATE OF DECISION: 15 May 2006
2006/2820
Monday 2 April 2007SIMPSON J
HOWIE J
HISLOP J
1 SIMPSON J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 15 May 2006, following his pleas of guilty to two counts on an indictment. These were one count of using an offensive weapon with intent to commit an indictable offence (the indictable offence being assault); and one count of using an offensive weapon to avoid apprehension. In addition, pursuant to Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), the applicant asked that six matters on a Form 1 be taken into account. These included another offence of using an offensive weapon with intent to commit an indictable offence (again, the indictable offence was assault); steal motor vehicle; drive in a manner dangerous; resist police officer in the execution of duty; possess implements capable of being used to enter or drive or enter and drive a conveyance; drive whilst disqualified.
2 In respect of the each of the counts on the indictment, Andrew ADCJ imposed a total term of imprisonment of five years with a non-parole period of three years, each sentence commencing on 30 April 2005. He took into account the Form 1 offences on the first count.
3 Pursuant to s34 of the Sentencing Procedure Act, in respect of the offence on the Form 1 of driving whilst disqualified his Honour imposed a period of disqualification for two years to commence at the completion of a period of disqualification then current; in relation to the offence of drive in a manner dangerous, he imposed a period of three years’ disqualification to commence from the date of sentence, 16 May 2006. Although his Honour was under the impression that the applicant’s then current period of disqualification would end in 2016, the fact is (as the applicant agreed) he has been serially disqualified from holding a driver’s licence; on 22 October 2003, he was declared a habitual offender and disqualified from driving for five years from 22 February 2011 (i.e. to 22 February 2016); but on 22 October 2004, in the Local Court at Parramatta, in respect of an offence of driving furiously or recklessly or in a manner dangerous or at a speed dangerous, he was disqualified for a further three years from 22 February 2016 (i.e. to 22 February 2019); and, also on 22 October 2004, in respect of another offence of driving whilst disqualified, he was further disqualified for two years from 22 February 2019 (i.e. to 22 February 2021); and, also on 20 October 2004, in respect of yet another offence of driving whilst disqualified, apparently committed on a different date, the applicant was yet further disqualified from driving for another two years from 22 February 2021. Accordingly, even without the disqualification imposed by Andrew ADCJ, the applicant is disqualified from driving until 22 February 2023. It is remarkable that, in respect of each of the offences dealt with in October 2004, the applicant was sentenced to a term of imprisonment that was, in each case, suspended.
4 His Honour clearly intended to add a further period of disqualification to the existing series; equally clearly, he was in error in mistaking the end date of that series as 2016. But, since the Crown has neither appealed against that order, nor taken any point about it, in my view it is not now open to this Court to correct the error. The applicant has received something of a windfall in that, on current orders, he will be eligible to obtain a driver’s licence two years earlier than his Honour intended.
Facts
5 The facts were put before his Honour by way of an agreed statement. The vehicle stolen by the applicant (the subject of the first offence on the Form 1) was a Toyota Dyna pantechnicon truck which had been parked in a secured area of a warehouse in Chester Hill. The entrance gate and switch motor were both damaged and the truck stolen. This occurred between the evening of 30 January 2005 and the early morning of 31 January 2005.
6 Late in the evening of 1 February 2005 the applicant was driving the truck along Wangi Road, Wangi Wangi (or in that vicinity). A Mr Joel Davis, with his companion, was driving in a utility truck on the same road. Mr Davis slowed down as he approached a blind corner; the applicant attempted to overtake him on the wrong side of unbroken lines. He did not complete that manoeuvre, but slowed and pulled in behind Mr Davis. He switched on the high beam of the headlights and closed to a very short distance behind the utility. Mr Davis continued, and signalling his intention, moved to the left of the road and slowed in order to allow the truck to overtake. The applicant drove the truck alongside the utility and then swerved in and out of the left lane. He then accelerated, braked harshly, and swung the truck into a ninety-degree turn so that it stopped in a position that blocked both lanes. Mr Davis was forced to brake harshly to avoid a collision.
7 This conduct constituted the offence of driving in a manner dangerous, the second offence on the Form 1.
8 The applicant opened the door and alighted from the truck. He was armed with an implement, described as a wooden bat or piece of log about one metre long and ten centimetres in diameter. He walked towards the utility vehicle occupied by Mr Davis and his friend. Mr Davis reversed the vehicle and telephoned police. The applicant re-entered the truck and drove up Wangi Road.
9 The use by the applicant of the wooden bat or piece of log constituted the third offence on the Form 1, of using an offensive weapon with intent to commit an indictable offence (assault).
10 At about half an hour after midnight Mr Davis had left his friend at her home and had begun to drive home. The weather was poor, with heavy rain, thunder and lightning. Mr Davis was about to make a right hand turn onto Wangi Road when he noticed the same truck parked in a ditch on the opposite side of the road. As he made the right hand turn the applicant turned on the lights of the truck and drove it directly at the driver’s door of the utility. Mr Davis had to swerve to avoid a collision. The front and back tyres of the utility went onto the dirt shoulder of the road and the vehicle slid sideways for a short distance. The truck narrowly missed the rear of the utility. Mr Davis drove off, again telephoning police.
11 This conduct on the part of the applicant constituted the offence the subject of the first count on the indictment, of using an offensive weapon with an intent to commit an indictable offence (assault).
12 Two police officers who were on duty at Morisset Police Station were assigned the call from Mr Davis. They drove to Wangi Road. They saw the truck being driven by the applicant in the opposite direction. They turned and followed, activating police lights and siren. The applicant caused the truck to brake and pulled it over to the side of the road, stopping on the verge. The police stopped a few metres behind the truck. The applicant then caused the truck to reverse, at some speed, straight into the front of the police vehicle. He then drove forwards and back onto the road towards Morisset. Some damage was caused to the front of the police vehicle. It was still drivable and the officers followed the truck, but maintaining a greater distance.
13 The applicant continued driving into Morisset, at about 80 kilometres per hour, through both 80 kilometre and 60 kilometre zones, and notwithstanding heavy rain that was still falling. The applicant turned off the truck’s lights, decelerated, and pulled over to the left side of the road. The applicant alighted from the truck and ran away. Police searched the truck. They found a piece of wood on the front seat and a bag of crystal substance on the floor. There were other items in the truck as well. This conduct constituted the offence the subject of the second count on the indictment, using an offensive weapon with intent to avoid apprehension.
14 Initially, efforts to locate the applicant were unsuccessful and the police officers returned to the police station. They received information that the applicant had been seen near the Morisset pharmacy, attended and, shortly after, located him hiding inside a garage of domestic premises. He was arrested. He struggled, was subdued, forced to the ground and handcuffed. The struggle constituted the fourth offence on the Form 1, of resisting police officer.
15 He was searched, and a key ring containing seven keys to various Toyota and Holden motor vehicles were found in his possession. This possession constituted the fifth offence on the Form 1, of possession of implements capable of being used for taking or driving a conveyance. The applicant was taken to Toronto Police Station where he was aggressive. He punched and kicked the walls, and refused to answer questions from the custody manager. He declined to be interviewed and declined to take part in an identification parade. He refused to consent to a DNA sample, but forensic procedures were, in any event, carried out.
16 As the applicant had been declared a habitual traffic offender and disqualified from driving for a period of five years from 22 February 2004, his driving constitutes the sixth offence on the Form 1, of driving whilst disqualified.
Subjective circumstances
17 The applicant was born on 31 August 1967 and was 37 years of age at the time of these offences. He has a lengthy criminal history which includes driving offences, dishonesty offences, offences of violence, including domestic violence, resisting police and one of supplying a prohibited drug. He is of Aboriginal descent. He has been diagnosed as suffering with Paranoid Schizophrenia. He has made more than one attempt on his own life. He has a long history of drug abuse, commencing with heroin at 15 years of age. He has also used amphetamines, cannabis and cocaine and has been alcohol dependent. He was assessed as having borderline intellect. A psychiatrist who reported on two occasions for the benefit of the sentencing judge diagnosed amphetamine dependence which, he thought, precipitated psychotic episodes. He has suffered a head injury of some kind in the past, which will limit his ability to problem solve and benefit from drug counselling, and possibly be a barrier to psychiatric rehabilitation.
The remarks on sentence
18 The sentencing judge set out the facts from the statement of facts that had been put before him. He (correctly) described them as “alarming”. He accepted that the applicant was acting “in some kind of drug-induced psychotic road rage”.
19 He noted the past criminal history. He accepted that the applicant was suffering from mental illness at the time of the offences and correctly directed himself as to the manner in which mental illness may be relevant to sentencing: see R v Henry [1999] NSWCCA 111; 46 NSWLR 346; R v Jiminez [1999] NSWCCA 7; R v Israil [2002] NSWCCA 255; R v Pearce, unreported, NSWCCA, 1 November 1996; R v Engert (1995) 84 A Crim R 67; R v Hemsley [2004] NSWCCA 228. He noted that in relation to the second offence on the indictment, an aggravating factor was that the victims included police officers.
20 He then proceeded to impose the sentences I have set out above.
- The application for leave to appeal
21 The applicant has appeared unrepresented on this application. He identified his grounds of appeal in the following terms:
- “1. They never got me up in the witness box.
2. They never took rehab into consideration.
3. They never got a pre-sentence report done.”
22 He provided written submissions in the following terms:
- “1. I was on Ice.
2. I was paranoid and when I stop for police I put the truck in neautral (sic) and I started to panick (sic) and 1st and reverse is in the same direction and I accident (sic) ramed (sic) it in reverse.”
The written submissions do not clearly relate to the grounds.
23 I will deal with each of the identified grounds first.
1. “They never got me up in the witness box.”
24 I take this ground to be a complaint about the manner in which his legal representative conducted the sentencing hearing. Generally speaking, an offender is bound by the manner in which legal representatives conduct the case. A ground of appeal complaining of the manner in which criminal proceedings are conducted will only succeed where a recognisable miscarriage of justice can be demonstrated, resulting possibly from “flagrant incompetence” or some other cause: R v Birks (1990) 19 NSWLR 677.
25 The decision taken by the applicant’s counsel at sentencing not to call him as a witness was one no doubt made in the exercise of his professional experience. There was a good deal of subjective material put before the sentencing judge, principally in the form of the psychiatric report. I would not infer, from the decision of counsel not to call the applicant, that any miscarriage of justice was caused. A decision not to call the applicant was a decision well within counsel’s professional discretion.
26 The first ground of the application cannot succeed.
2. “They never took rehab into consideration”
27 This is a complaint, not about counsel, but about an asserted omission on the part of the sentencing judge. It is true that there is no reference in the remarks on sentence to the possibility of rehabilitation. However, there is a great deal in the psychiatric report, to which the judge had regard. There was nothing in that to suggest that rehabilitation was a real possibility. I would reject the second ground of the application.
3. “They never got a pre-sentence report done”
28 It is not clear whether this is a complaint about counsel, the Crown, or the sentencing judge. Ordinarily, as I understand the procedure, a pre-sentence report is obtained from the Probation and Parole Service at the request of the sentencing judge, if requested by the defence. It usually forms part of the Crown material on sentence. There is no explanation why a pre-sentence report was not obtained in this case, or whether one was requested on the applicant’s behalf. Having regard to the applicant’s antecedents, it might be assumed that he was well known to the Probation and Parole Service.
29 All subjective matters were dealt with in the psychiatric reports. No miscarriage of justice has been caused by the absence of a pre-sentence report. I would reject this ground of the application.
30 I turn now to the applicant’s written submissions. The first is:
- “I was on Ice.”
I take this to translate to an assertion that he was, at the time of the offences, affected by consumption of amphetamines. I do not regard this as in any way mitigating the offence and, if it were taken into account, it could not have helped him. In any event, the sentencing judge was well aware of his drug use and drug history.
31 The same really applies to the applicant’s second submission, that he was “paranoid”. This, no doubt, resulted from his consumption of amphetamines. The balance of the submission suggests that his state of mind caused him to make mistakes in the manner of his driving. That is precisely the reason that the law prohibits driving when under the influence of drugs, and the reason that driving after consuming drugs is a serious offence. This could not have assisted the applicant in any way.
32 The applicant presented oral argument on the application. It was plain that he wished to pursue his complaint about the conduct of his counsel, and to challenge some of the facts that had been contained in the agreed statement of facts. However, nothing he said gave rise to any reasonable inference of error in the fact finding exercise, or wrong statement of what had occurred. Indeed, the applicant’s assertion that he had been on “Ice” and that he was “paranoid” would give little confidence in any account he could have given of the events in question.
33 The applicant also sought to restate a subjective case, concerning rehabilitation, and his wish to be available for his children. None of this is demonstrative of error in the sentencing process.
34 Accordingly, I see no basis on which to interfere with the sentences imposed. In my opinion they were well within the range of sentences available for very serious offences of this nature.
35 I would grant leave to appeal but dismiss the appeal.
36 HOWIE J: I agree with Simpson J.
37 HISLOP J: I also agree with Simpson J.
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