R v Osborne

[2000] NSWCCA 158

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION:     Regina v Leonard Rappley OSBORNE [2000]  NSWCCA 158

FILE NUMBER(S):
60315/99

HEARING DATE(S):           1st May 2000

JUDGMENT DATE:            01/05/2000

PARTIES:
Regina v Leonard Rappley Osborne

JUDGMENT OF:      Hulme J Carruthers AJ    

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        97/31/0389

LOWER COURT JUDICIAL OFFICER:     Armitage DCJ

COUNSEL:
In Person - Applicant
M Grogan - Crown

SOLICITORS:
S E O'Connor - Crown

CATCHWORDS:
Criminal Law - application to set aside summary dismissal of application for leave to appeal - whether failure to set aside could or would lead to a miscarriage of justice.

LEGISLATION CITED:
Crimes Act 1900, ss 112, 154AA(1), 195(b)

DECISION:
Application to set aside the previous orders of this Court summarily dismissing the applicant's appeal is refused.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60315/99

HULME J

CARRUTHERS AJ

Monday 1 May 2000

REGINA v Leonard Rappley OSBORNE

JUDGMENT

1. CARRUTHERS AJ: Although no documentation has been filed in this respect, the Court is treating the proceedings presently before it as an application by the applicant, Leonard Rappley Osborne, for an order that the summary dismissal on 18 March 1999 of his appeal be set aside. In the event that the order is set aside, the applicant seeks to rely upon a second notice of appeal which was filed on 17 March 1999.

2. The applicant was born on 31 August 1967. On 18 December 1997 he was sentenced by his Honour Judge Armitage QC at the Newcastle District Court in relation to pleas of guilty to an indictment containing four counts.

3. The first and fourth counts were counts under s 112 of the Crimes Act 1900, (the Act) - break, enter and steal, which carries a maximum penalty of 14 years penal servitude. The second count was one under s 195 (b) of the Act - maliciously damage property by fire or explosives, which carries a maximum penalty of 10 years penal servitude. The third count was one under s 154AA(1) of the Act - steal motor vehicle, which carries a maximum penalty of 10 years penal servitude.

4. His Honour was also asked to take into account the following offences under a Form 1: eight of steal motor vehicle, one of maliciously damage property by fire, four offences of stealing, three of false pretences, one of goods in custody, one of possess implements, two of possess prohibited drug, one of administer prohibited drug, two of being an unlicensed driver, one of driving an unregistered vehicle, and one of using an uninsured vehicle. The offences ranged over the period between March 1997 and 30 June 1997.

5. A second Form 1 involved an offence of attempting to escape lawful custody. That offence was committed on 23 October 1997. In relation to the first and fourth counts, and taking into account all the Form 1 matters his Honour imposed a minimum term of four years penal servitude to commence on 26 May 1997 and to expire on 25 May 2001, with an additional term of 16 months to commence on 26 May 2001, to expire on 25 September 2002.

6. In relation to the second and third counts, his Honour imposed a minimum term of two years penal servitude to commence on 26 May 1997 and to expire on 25 May 1999 with an additional term of eight months, commencing on 26 May 1999 and to expiring on 25 January 2000.

7. The applicant came before his Honour with a very bad record. His criminal career commenced on 3 June 1985 when he  was only 17 years of age. He was thereafter continuously before courts until the subject matters were dealt with. He has a history of drug addiction.  His Honour outlined the criminal conduct involved, and it is not necessary for me for present purposes to enter into the detail of those matters, all of which were serious. 

8. It is to be noted that during this episode of criminal conduct, the applicant was twice granted bail and on each occasion, nevertheless, committed further offences. The subjective material before his Honour included a pre-sentence report dated 28 October 1997 under the hand of Lorraine May, Probation and Parole officer, Lake Macquarie District Office and a psychiatric report under the hand of Dr Jolly, psychiatrist, dated 5 December 1997. Dr Jolly attributed the applicant's offending to his addiction to drugs. He noted normal grief following the death by accident of his mother which was during his period in gaol on remand. The doctor concluded that a lengthy period of supervision in the community was necessary after his discharge from gaol. These matters were all considered by the experienced learned sentencing judge.

9. The original notice of appeal was filed on 30 December 1997, some 12 days after the sentences were imposed. The grounds of appeal, which were completed by the applicant personally, are in the following terms:

   "I am appealing for a shorter time in gaol and longer time on parole with admission to a long term rehabilitation centre as a condition of parole. I feel this will be more beneficial to my future and will better help me to settle successfully with my wife and family into the community when my sentence is served. I will take advantage of counselling while in gaol, but would appreciate the opportunity of more intensive therapy in rehab before my release."

10. There was some communication between the Registry and the applicant following the filing of this notice of appeal. This involved, to some extent, reference to attempts by the applicant to obtain legal aid, which apparently proved fruitless. However, subsequent correspondence by the Registrar to the applicant was not answered and eventually, on 8 March 1999 this Court  (Simpson J and Smart AJ) ordered that the application be summarily dismissed.

11. The response to that order was a further notice of appeal by the applicant, dated 17 March 1999, in which he states:

    "I have had this appeal in for over two years. I have transferred from different gaols a lot in that time and unfortunately missed two letters from the pro-bono solicitor. They requested 17/3/99 that I ask the court to refile my appeal application whilst I wait for them to get all my legal papers. Contact person at Pro-Bono NSW Law Society for this is Nancy Walker -solicitor [phone]. See attached".

    Apparently the pro bono solicitor did not proceed further with this matter.

12. On 3 May 1999 the applicant wrote to the Registrar, Mr Schell, indicating that he wished to submit certain information to support his request for the filing of the second appeal. He pointed out that the offences for which he is still incarcerated were committed as a direct consequence of his previous narcotic addiction. He referred  in this letter to efforts which had been undertaken by him to control and overcome his substance abuse.

13. The efforts which in fact have been undertaken by the applicant since his incarceration to rehabilitate himself and to deal with his substance abuse are indeed worthy of the highest commendation.  He has obviously made every effort to use the time when he has been incarcerated to educate himself in preparation for obtaining gainful employment upon his release and to come to terms with his drug addiction and the difficulties, of an emotional kind, which he has encountered during the course of his life. There is adequate documentary material to support what he says in this letter.

14. Doing the best one can, with the very considerable assistance of Mr Grogan, counsel for the Crown, and taking account of the matters that the applicant has put before this Court on his own behalf this afternoon, it would appear that his submission is that the learned sentencing judge did not have proper regard to his willingness to undertake drug and alcohol counselling.  Secondly, that his Honour failed to have regard to the applicant's grief arising from his mother's death.  Thirdly, that his Honour failed to take into account the contents of reports tendered during the sentence proceedings. Fourthly, his Honour failed to consider home detention as a sentencing option. Clearly, in relation to ground four there could be no substance, had the appeal proceeded in the normal fashion, so far as that ground is concerned.

15. This Court's task, in an application such as the present, has been explained by Street CJ, (with whom Slattery CJ at CL and Allen J concurred), in Regina v  Bell, (1987) 8 NSWLR, 311.

16. Applying the principles enunciated in that case, the position is that the summary dismissal of the application for leave to appeal by the Court on 8 March 1999 constituted a procedural dismissal and not a dismissal on its merits. So much is, of course, self evident. However, the Court retains an inherent jurisdiction to go behind the dismissal where its enforcement would lead to a miscarriage of justice, and for this purpose, the Court may consider the likelihood of success of the appeal and how it came about that the matter was summarily dismissed.

17. Mr Grogan has indicated to the Court that his experience is such that when inmates, such as the applicant, are moved from gaol to gaol during the pendency of his appeal being heard, difficulty is necessarily experienced in their receiving communications. One must necessarily accept that to be the position, but nevertheless, of course, when an applicant has leave to appeal he or she is under an obligation to take steps, so far as he or she can, to pursue the application for leave to appeal, despite the difficulties that are created by transportation from one corrective services institution to another. However, naturally this Court must take a lenient or tolerant view of the difficulties which prisoners experience in this regard. Nevertheless, the summary dismissal by this Court is an important matter which cannot be treated lightly.

18. The manner in which I have approached this case consistent with Bell's case, is carefully to consider the material which was before the learned sentencing judge, his reasons for the penalties which he imposed and the matters that were raised in the original notice of appeal going to the appropriateness or otherwise of the sentences imposed, together with the matters that have been raised today, to determine whether the refusal by this Court to set aside the summary dismissal would or could lead to a miscarriage of justice.  This Court is, however, unable in determining that primary question to take into consideration the commendable efforts which the applicant has made to rehabilitate himself which I have earlier set out.

19. Clearly, in my view, the sentencing regime imposed by Judge Armitage was within the sentencing discretion available to him. Indeed, bearing in mind the applicant's prior criminal record, and the objective seriousness of the litany of offences with which his Honour was required to deal, I would say that the sentences imposed were towards the lower end of the range rather than the higher end of the range. Thus I am quite satisfied that the setting aside of the summary dismissal of the appeal would not or could not lead to a miscarriage of justice, and I would therefore propose that such application should be dismissed. One can only express the hope that the disappointment associated with such dismissal does not deter the applicant from continuing with his exemplary efforts of rehabilitation in the year that lies ahead of him to complete the minimum term imposed by Judge Armitage.

20. HULME J: I agree. Accordingly, the orders of the Court are that the application to set aside the previous orders of this Court summarily dismissing the applicant's appeal is refused.

**********

LAST UPDATED: 16/05/2000