R v Rose - [2001] NSWCCA 370

CITATION: R v Rose [2001] NSWCCA 370 revised - 3/10/2001

FILE NUMBER(S): CCA 60297/2000

HEARING DATE(S): 9 July 2001

JUDGMENT DATE:
9 July 2001

PARTIES :

Rodney Wayne ROSE - Applicant
Crown - Respondent

JUDGMENT OF: Simpson J at 1; Sperling J at 17

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/51/0051

LOWER COURT JUDICIAL
OFFICER : Ducker DCJ

COUNSEL : H DHanji - Applicant
P G Berman SC - Crown/Respondent

SOLICITORS: D J Humphreys - Applicant
S E O'Connor - Crown/Respondent

LEGISLATION CITED: Crimes (Sentencing) Procedure Act 1999

CASES CITED:
R v McHugh (1985) 12 NSWLR 588
R v Frascella (2001) NSWCCA137

DECISION: Leave to appeal granted - appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60297/00

SIMPSON J
SPERLING J

9 JULY 2001

REGINA V RODNEY ROSE

JUDGMENT

1 SIMPSON J : The applicant seeks leave to appeal against the sentences imposed upon him in the District Court in Lismore on 15 June 2000. That was the date fixed for the trial of the applicant on a charge of sexual intercourse without consent and another charge of assault occasioning actual bodily harm. At the commencement of the trial the jury had been empanelled and the trial was about to commence when the applicant entered pleas of guilty to the offences.

2 The offences were committed on 23 January 1999. The same woman was the victim of both. In short, the applicant had met the victim, who was a twenty-nine year old woman, earlier that day and they had agreed to meet later at a nightclub. After some hours there they returned to the victim's home together. They were sexually attracted to one another. However, the applicant made sexual overtures which were rejected by the victim. Despite her rejection he persisted and became violent. The violence was such that both fell to the floor. The applicant removed the victim's underwear and used his fingers to penetrate her vagina; he forced her to perform fellatio upon him and finally used his penis to rape her vaginally.

3 The victim was able to dial the telephone emergency number and what followed was recorded. A transcript of the tape recording was in evidence before the sentencing judge. It demonstrates beyond doubt that the victim did not consent to the applicant's sexual demands and that he could have been under no illusion about that. Police attended in response to the call and the applicant was arrested at the scene.

4 The applicant was born on 30 August 1971. He was twenty-seven years of age at the time of the offence. Four months earlier he had been released from a Queensland prison where he had served a sentence for assault occasioning bodily harm whilst armed with an offensive weapon and an offence of deprivation of liberty. He had earlier offences on his record.

5 There was considerable amount of subjective material before the sentencing judge, particularly concerning the applicant's early history. He had an unsatisfactory start in life. His mother abandoned…

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.

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Details

Case: [2001] NSWCCA 370
Decision Date: 9 July 2001

CaseChat Overview and Summary

Rodney Wayne Rose, the applicant, sought leave to appeal against the sentences imposed by the District Court of New South Wales on 15 June 2000, where he had pleaded guilty to charges of sexual intercourse without consent and assault occasioning actual bodily harm. The victim, a 29-year-old woman, had been subjected to sexual advances and violence by Rose on 23 January 1999. The Court of Criminal Appeal was tasked with determining whether the applicant's appeal should be granted and, if so, whether the appeal should succeed.

The primary legal issue before the Court was whether the sentencing judge had properly considered the period of pre-sentence custody in determining the sentence and its commencement date. The applicant's counsel argued that the sentencing judge had not correctly accounted for the seventeen days of pre-sentence custody when determining the length and commencement date of the sentences. The Court had to examine whether the sentencing judge's acknowledgment of the period of custody was sufficient to meet the obligations under s 47 of the Crimes (Sentencing Procedure) Act 1999.

The Court of Criminal Appeal held that the sentencing judge had indeed taken into account the period of pre-sentence custody as required by s 47(3) of the Act. Although the judge had mentioned a period of twenty-four days, which was an error, it was clear from the context that the judge had considered the actual period of seventeen days in determining both the length and commencement date of the sentences. The Court referred to the precedent set in Regina v Frascella, where a similar argument had been rejected, and concluded that the sentencing judge's acknowledgment of the pre-sentence custody was sufficient. Therefore, the Court granted leave to appeal but dismissed the appeal on the basis that the sentencing judge had fulfilled the statutory requirement.

Orders