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Des Rosiers v The Queen

Des Rosiers v The Queen

Case [2016] NSWCCA 196 2 September 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Des Rosiers v R [2016] NSWCCA 196
Hearing dates: 12 August 2016
Decision date: 02 September 2016
Before: Macfarlan JA at [1];
Hall J at [36];
Bellew J at [37]
Decision:
(1) Appeal allowed.
(2) Quash the sentence imposed by the Court of Criminal Appeal on 10 February 2006 in respect of Count 1.
(3) For the offence of Supply a Large Commercial Quantity of LSD (Count 1), and taking into account the offences on the Form 1, sentence the appellant to a term of imprisonment of 14 years commencing on 20 April 2004 and expiring on 19 April 2018, with a non-parole period of 10 years and 6 months commencing on 20 April 2004 and expiring on 19 October 2014.
(4) Note that the sentences imposed by this Court in relation to Counts 2, 3 and 4 on 10 February 2006 expired prior to the expiration of the above sentence in relation to Count 1. As a result, the appellant became eligible for release to parole on expiration of the non-parole period in relation to his Count 1 sentence, being 19 October 2014.

Catchwords: CRIMINAL LAW – sentence appeal – serious drug offence – matter referred to Court of Criminal Appeal to be dealt with as an appeal – alleged Muldrock and Kentwell errors in previous appeal decision – proper approach to re-sentencing – appellant had already been released on parole – rehabilitation demonstrated
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 78(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(2)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Barbaro v The Queen [2014] HCA 2; 253 CLR 58
Betts v The Queen [2016] HCA 25; 90 ALJR 758
Buttrose v Attorney General (NSW) [2015] NSWCA 221; 324 ALR 562
Hili v The Queen [2010] HCA 45; 242 CLR 520
Kentwell v R (No 2) [2015] NSWCCA 96
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Louizos v The Queen [2014] NSWCCA 242
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Pham [2015] HCA 39; 90 ALJR 13
Thammavongsa v R [2015] NSWCCA 107
Category: Principal judgment
Parties: Henry Edgar Des Rosiers (Appellant)
Regina (Respondent)
Representation:
Counsel:
T A Game / J L Roy (Appellant)
H Baker (Respondent)
Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/111165
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

24 February 2005

Before:

Black QC DCJ

File Number(s):

2016/111165

Judgment

MACFARLAN JA: On 24 February 2005 the appellant was sentenced by a judge of the District Court in respect of the following offences of which he had been convicted following pleas of guilty:

“Count 1: Supply large commercial quantity of a prohibited drug (LSD)
Section 25(2) Drug Misuse and Trafficking Act 1985
Count 2:

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 Des Rosiers v The Queen

Details

AGLC: Des Rosiers v The Queen [2016] NSWCCA 196
Case: [2016] NSWCCA 196
Decision Date: 02 September 2016

CaseChat Overview and Summary

The case of Des Rosiers v The Queen involved the appellant, Des Rosiers, who had been convicted of a serious drug offence. The matter was referred to the Court of Criminal Appeal following a decision in a previous appeal. The central issue was whether there were errors in the previous appeal decision that warranted a re-sentencing. Specifically, the court was required to determine whether the appeal court had erred in not considering the appellant's rehabilitation and the fact that he had already been released on parole.

In addressing the issue, the court examined the previous appeal decision for any procedural or substantive errors. It considered whether the lower court had applied the correct legal principles in assessing the appellant's rehabilitation and whether it had adequately considered his release on parole. The court also assessed the seriousness of the offence and the appellant's criminal history. Ultimately, the court found that there had been errors in the previous appeal decision, leading to an inappropriate sentence. It concluded that the appellant's rehabilitation and parole release should have been given more weight.

The Court of Criminal Appeal quashed the original sentence and ordered a re-sentencing. The court acknowledged the appellant's demonstrated rehabilitation and his release on parole as significant factors that warranted a reduction in sentence. The decision highlighted the importance of considering rehabilitation and parole release when determining an appropriate sentence for a serious drug offence. The final orders of the court reflected this approach, emphasising the need for a balanced and fair sentencing process that takes into account the offender's rehabilitation efforts and the practical realities of parole release.

Orders