Osborne v R

2. "They never took rehab into consideration" 27 This is a complaint, not about counsel, but about an asserted omission on the part of the sentencing judge. It is true that there is no reference in the remarks on sentence to the possibility of rehabilitation. However, there is a great deal in the psychiatric report, to which the judge had regard. There was nothing in that to suggest that rehabilitation was a real possibility. I would reject the second ground of the application.

3. "They never got a pre-sentence report done" 28 It is not clear whether this is a complaint about counsel, the Crown, or the sentencing judge. Ordinarily, as I understand the procedure, a pre-sentence report is obtained from the Probation and Parole Service at the request of the sentencing judge, if requested by the defence. It usually forms part of the Crown material on sentence. There is no explanation why a pre-sentence report was not obtained in this case, or whether one was requested on the applicant's behalf. Having regard to the applicant's antecedents, it might be assumed that he was well known to the Probation and Parole Service. 29 All subjective matters were dealt with in the psychiatric reports. No miscarriage of justice has been caused by the absence of a pre-sentence report. I would reject this ground of the application. 30 I turn now to the applicant's written submissions. The first is: "I was on Ice." I take this to translate to an assertion that he was, at the time of the offences, affected by consumption of amphetamines. I do not regard this as in any way mitigating the offence and, if it were taken into account, it could not have helped him. In any event, the sentencing judge was well aware of his drug use and drug history.

31 The same really applies to the applicant's second submission, that he was "paranoid". This, no doubt, resulted from his consumption of amphetamines. The balance of the submission suggests that his state of mind caused him to make mistakes in the manner of his driving. That is precisely the reason that the law prohibits driving when under the influence of drugs, and the reason that driving after consuming drugs is a serious offence. This could not have assisted the applicant in any way. 32 The applicant presented oral argument on the application. It was plain that he wished to pursue his complaint about the conduct of his counsel, and to challenge some of the facts that had been contained in the agreed statement of facts. However, nothing he said gave rise to any reasonable inference of error in the fact finding exercise, or wrong statement of what had occurred. Indeed, the applicant's assertion that he had been on "Ice" and that he was "paranoid" would give little confidence in any account he could have given of the events in question. 33 The applicant also sought to restate a subjective case, concerning rehabilitation, and his wish to be available for his children. None of this is demonstrative of error in the sentencing process. 34 Accordingly, I see no basis on which to interfere with the sentences imposed. In my opinion they were well within the range of sentences available for very serious offences of this nature. 35 I would grant leave to appeal but dismiss the appeal. 36 HOWIE J: I agree with Simpson J. 37 HISLOP J: I also agree with Simpson J.

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