R v Osborne - [2001] NSWCCA 371

CITATION: R v Osborne [2001] NSWCCA 371

FILE NUMBER(S): CCA 60263/2000

HEARING DATE(S): 13 July 2001

JUDGMENT DATE:
13 July 2001

PARTIES :

Jeffrey Nedly OSBORNE - Applicant
Crown - Respondent

JUDGMENT OF: Simpson J at 1; Sperling J at 18

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/21/2126

LOWER COURT JUDICIAL
OFFICER : O'Reilly DCJ

COUNSEL : Applicant in person
D M Woodburne - Crown/Respondent

SOLICITORS: Applicant in person
SE O'Connor - Crown/Respondent

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

CASES CITED:
R v Thomson v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Henry (1999) NSWCCA 111; 46 NSWLR 346
R v Murchie (19990 NSWCCA 424

DECISION: Period of time to seek leave to appeal extended - leave to appeal granted - appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60263/00

SIMPSON J
SPERLING J

R V OSBORNE

1 SIMPSON J: The applicant seeks an extension of time and leave to appeal against the severity of sentences imposed upon him in the District Court on 24 September 1999 following his pleas of guilty to three charges of robbery in company. By section 97(1) of the Crimes Act 1900, each offence exposed the applicant to a maximum penalty of imprisonment for twenty years. The District Court Judge sentenced the applicant, on the first charge, to a total term of four and a half years imprisonment made up of a minimum term of three years and an additional term of one year and six months. On each of the other charges he sentenced the applicant to a fixed term of imprisonment for two years. He specified that all sentences were to be served concurrently.

2 The notice seeking leave to appeal was filed on 5 May 2000, which was significantly outside the time allowed by the Criminal Appeal Act 1912. In his application for an extension of time the applicant claimed to have been misled by his solicitors as to the effect of the sentence. Whether this is correct or not, in my view the applicant's application for extension of time should be granted.

3 The three offences to which the applicant pleaded guilty were all committed as part of the same enterprise. During the afternoon of 26 February 1999, a Friday, the applicant and three other men went to the ANZ Bank in Rockdale. A fifth man remained outside in the motor vehicle. The applicant and three others entered the bank. One of the men jumped the counter and entered the teller's area of the bank. He removed a sum of more than $9,000 from cash drawers. Another of the men, not the applicant, ordered a number of customers to lie on the floor. The men stole $250 from one customer and $1,230 from another.

4 The applicant's role, with another of his companions, was to keep watch inside the front door of the bank.

5 The applicant was identified as one of the offenders by security photographs and he was arrested…

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 Osborne

Details

AGLC: R v Osborne [2001] NSWCCA 371
Case: [2001] NSWCCA 371
Decision Date: 13 July 2001

CaseChat Overview and Summary

The case of R v Osborne involved Jeffrey Nedly Osborne, the applicant, who sought an extension of time and leave to appeal against the severity of the sentences imposed upon him by the District Court. Osborne pleaded guilty to three charges of robbery in company and was sentenced to imprisonment terms, to be served concurrently. The applicant filed a notice seeking leave to appeal on 5 May 2000, which was outside the time allowed by the Criminal Appeal Act 1912. The applicant claimed to have been misled by his solicitors regarding the effect of the sentence. The primary legal issues were whether the applicant's application for an extension of time should be granted, and if the sentences imposed by the District Court judge were appropriate.

The Court of Criminal Appeal granted the applicant's application for an extension of time. The court found that, regardless of whether the applicant was misled by his solicitors, his application should be granted. The court examined the nature of the offences, which were part of the same enterprise, and the applicant's role in the robberies. The sentencing judge considered the pleas of guilty and took them into account, which the Court of Criminal Appeal found to be sufficient. The court found that the applicant's argument that his role in the offences warranted a lesser sentence was based on a false premise, as the robberies were a joint enterprise, and all offenders had significant roles to play. The Court of Criminal Appeal concluded that the sentences imposed fell within the sentencing judge's discretion and were in accordance with the guideline judgment in R v Henry. The court held that the applicant failed to demonstrate any error in the sentencing approach.

The Court of Criminal Appeal extended the period of time to seek leave to appeal and granted leave to appeal. However, the appeal was dismissed, as the court found no error in the sentencing approach. The final orders of the court were to extend the period of time to seek leave to appeal, grant leave to appeal, and dismiss the appeal, as proposed by Simpson J.

Orders