R v Osborn - [2004] QCA 314

SUPREME COURT OF QUEENSLAND

CITATION:

R v Osborn [2004] QCA 314

PARTIES:

R
v
OSBORN, Leslie Roy

(applicant)

FILE NO/S:

CA No 176 of 2004

DC 299 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

27 August 2004

DELIVERED AT:

Brisbane

HEARING DATE:

27 August 2004

JUDGES:

McPherson JA, Williams JA, Holmes J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – SENTENCING – PROPERTY OFFENCES – where applicant was given a suspended sentence of four years for armed robbery, and entering and stealing from a dwelling house – where applicant repeatedly breached suspended sentence – whether sentencing judge erred by ordering applicant to serve 12 months of the remaining 2 years of the suspended sentence

Penalties and Sentences Act 1992 (Qld), s 147

COUNSEL:

The applicant appeared on his own behalf

M R Byrne for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: The applicant for leave for appeal against sentence is Leslie Roy Osborn. On 2nd March 2001 he pleaded guilty to counts for armed robbery and entering and stealing in a dwelling house.

He was sentenced on that occasion by Judge Wylie to an effective term of four years imprisonment to be suspended after nine weeks. There was a period of 115 days of pre-sentence custody so that the applicant would have been released in about mid-August 2001. There was no appeal against the sentence.

The operational period fixed for that sentence was five years. Within that period the applicant was on 11th March 2003 convicted and sentenced by Judge Noud on counts of stealing and assault occasioning bodily harm.

He had engaged in taking some items from the sports store. There was a tussle with members of the staff of the store and one of them was bitten on the arm. It appears that the application is or was then a carrier of hepatitis C.

Judge Noud ordered that the applicant serve 15 months of the suspended term of imprisonment which, of course, left an outstanding balance of two years in the original four year term still to be served. Again a period of pre-sentence custody had the effect that the applicant was released from prison in April 2003.

It appears that the motive for offending on both occasions was the applicant's need to obtain money to buy drugs to satisfy his heroin addiction. His criminal history, which commences in 1998, records a number of drug offences together with breaches of community service orders, orders granting bail, fine option orders and so on.

After his release from prison in April 2003 under the sentence imposed by Judge Noud, the applicant was found in a disused building on 22nd October 2003 about to inject himself with morphine. As a result of that he was convicted and fined $600 in…

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 R v Osborn

Details

AGLC: R v Osborn [2004] QCA 314
Case: [2004] QCA 314
Decision Date: 27 August 2004

CaseChat Overview and Summary

In the case of R v Osborn, the applicant, having been previously sentenced to a suspended sentence of four years for armed robbery and entering and stealing from a dwelling house, sought to appeal the decision of the sentencing judge. The applicant had repeatedly breached the conditions of the suspended sentence, leading to the sentencing judge ordering that the applicant serve 12 months of the remaining two years of the suspended sentence. The applicant argued that the sentencing judge had erred in ordering the applicant to serve the 12 months, and that the sentence was excessive.

The legal issues the court was required to decide were whether the sentencing judge had erred in ordering the applicant to serve the 12 months of the suspended sentence and whether the sentence was excessive. The court considered the principles of sentencing for property offences, the nature and circumstances of the offences, and the need for the sentence to be proportionate to the seriousness of the offences.

The court found that the sentencing judge had not erred in ordering the applicant to serve the 12 months of the suspended sentence. The court held that the sentencing judge had considered the principles of sentencing for property offences and had taken into account the nature and circumstances of the offences, as well as the need for the sentence to be proportionate to the seriousness of the offences. The court also found that the sentence was not excessive, and that the sentencing judge had acted within their discretion in ordering the applicant to serve the 12 months of the suspended sentence.

The application was dismissed, and the orders of the sentencing judge were upheld. The applicant was ordered to serve 12 months of the remaining two years of the suspended sentence.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Osborn [2004] QCA 314
PARTIES:	R v OSBORN, Leslie Roy (applicant)
FILE NO/S:	CA No 176 of 2004 DC 299 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	27 August 2004
DELIVERED AT:	Brisbane
HEARING DATE:	27 August 2004
JUDGES:	McPherson JA, Williams JA, Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application dismissed
CATCHWORDS:	CRIMINAL LAW – SENTENCING – PROPERTY OFFENCES – where applicant was given a suspended sentence of four years for armed robbery, and entering and stealing from a dwelling house – where applicant repeatedly breached suspended sentence – whether sentencing judge erred by ordering applicant to serve 12 months of the remaining 2 years of the suspended sentence Penalties and Sentences Act 1992 (Qld), s 147
COUNSEL:	The applicant appeared on his own behalf M R Byrne for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent