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 on 3 March 1999.

6 He entered pleas of guilty at the Local Court and was committed for sentence pursuant to section 51A of the Justices Act 1904.

7 There was subjective material in the form of a pre-sentence report and a psychological report before the sentencing judge. The applicant was born on 3 March 1968 and was not quite 31 years of age at the time of the offences. He had a criminal record which included stealing and malicious damage charges, but more significantly, two convictions for assault with intent to rob in July and December 1991, and one conviction for armed robbery while in company, also in 1991. The assault and malicious damage convictions occurred in 1993. It appears that between 1993 and 1999, the date of these offences, the applicant was able to comply with the law.

8 Following the 1991 convictions, the applicant was sentenced to a minimum term of 15 months imprisonment and this he served. The pre-sentence report states that after his release, he was supervised by the Victorian Community Services Corrections Service and completed his parole successfully and that he made significant changes to his lifestyle. He completed a motor maintenance course, obtained his driver's licence, maintained stable accommodation, and reported regularly to his supervising officer.

9 The evidence showed that the applicant had a troubled family history. He was born in New Zealand. With his family he migrated to Australia in 1975, but his parents separated a few years later due to his father's heavy consumption of alcohol. Family life was marked by violence. The applicant left home at the age of twelve years and lived on the streets and an otherwise itinerant lifestyle. He began associating with a delinquent peer group. His siblings and mother have taken up residence in the United States and he has limited contact with them. He began glue sniffing at the age of thirteen and then began to use cannabis and at the age of nineteen took up heroin use. The probation and parole officer who wrote the report considered him to be genuinely remorseful.

10 This also was the assessment of Mr Fathers, a psychologist who reported to the court.

11 In sentencing the applicant the judge took into account the pleas of guilty and gave these considerable weight. He noted that the pleas were entered at an early date, but he gave additional credit because he considered that the Crown case might have been seen to have some deficiencies and that the applicant had some prospect of an acquittal. He did not quantify the allowance he made for the plea of guilty as is now encouraged by this court in its judgement in R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 - a judgment which post dates sentencing in this matter - but it is clear that he took it into account.

12 The applicant appears unrepresented in this court, but has provided a document in which he sets out his grounds of appeal. These were supplemented when he was invited to put any additional matters before the court. The first ground serves that the judge failed to take into account the guilty pleas and the timing of the pleas. This ground cannot be accepted, having regard to what was explicitly said by the sentencing judge.

13 The second matter raised by the applicant concerns his role in the offences. He argues that, because his role was to keep watch at the door and he was not the person who jumped the counter or actually robbed the customers in the bank, he was entitled to a lesser sentence than the co-offenders. It is not clear that the others have been sentenced, but the argument appears to me, in any event, to be based on a false premise. This was a joint enterprise in which all offenders had a role to play and the applicant's role was as significant and important as the roles of his co-offenders. The applicant has also asserted: "I am not the instigator but a passenger of the robbery." I take this to be a further argument in support of the reduced sentence by reason of the nature of his participation, but it must meet the same fate as the earlier argument.

14 In my opinion, the sentences imposed fall well within the discretion of the sentencing judge. They are in accordance with the guideline judgment in this court in the R v Henry [1999] NSWCCA 111; 46 NSWLR 346. The judgments in Henry are concerned with armed robberies, but these offences carry the same maximum sentence and are not, in my opinion, to be treated as warranting a different sentencing approach; R v Murchie [1999] NSWCCA 424.

15 Moreover, the guideline promulgated in Henry was directed to offenders with more favourable features than the applicant. It is directed to a young offender with a relatively insignificant criminal record, and to offences involving a relatively small amount of money. None of those circumstances exist here.

16 In the oral submissions he put before this court, the applicant drew attention to the period of seven years during which he was convicted of no offences. This was recognised by the sentencing judge and cannot add to the argument or to the strength of the case he here presents. He also put to the court that the offences were a mistake brought about by his having met up with old friends and having been led into the offences by them. He drew attention to his remorse and to an apology he has made to the victims of the offences. Once again, these are all matters that were before the sentencing judge and were adequately taken into account and cannot now demonstrate any error in the sentencing approach.

17 In my opinion, the applicant has failed to demonstrate any such error. I would extend the period of time to seek leave to appeal. I would grant leave to appeal, but I would dismiss the appeal.

18 SPERLING J: I agree.

19 SIMPSON J: The orders of the court will be as I have proposed.

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