Regina v Leonard Rappley OSBORNE [2000] NSWCCA 158

New South Wales Court of Criminal Appeal

CITATION : Regina v Leonard Rappley OSBORNE [2000] NSWCCA 158 FILE NUMBER(S) : CCA 60315/99 HEARING DATE(S) : 1st May 2000 JUDGMENT DATE : 1 May 2000

PARTIES : Regina v Leonard Rappley Osborne JUDGMENT OF : Hulme J at 20; Carruthers AJ at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/31/0389 LOWER COURT JUDICIAL Armitage DCJ OFFICER :

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) CASES CITED: R v Bell (1987) 8 NSWLR 311 DECISION : Application to set aside the previous orders of this Court summarily dismissing the applicant's appeal is refused.

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."