R v Rose

Case [1999] NSWCCA 327 11 October 1999

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CITATION: REGINA v. ROSE [1999] NSWCCA 327

FILE NUMBER(S): CCA No. 60520 of 1998

HEARING DATE(S): Monday 11 October 1999

JUDGMENT DATE:
11 October 1999

PARTIES :

REGINA v.
ROSE, Lindsay Robert

JUDGMENT OF: Sully J at 20; Hidden J at 21; Greg James J at 2

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : No. 70094 of 1997

LOWER COURT JUDICIAL OFFICER: Levine, J.

COUNSEL: Crown: C.K. Maxwell, QC.
App: J.C. Nicholson, SC.

SOLICITORS: Crown: S.E. O'Connor
App: John Bettens & Co.

CATCHWORDS: Multiple murders - life sentence - worst case category - co-operation with authorities - discount - not available as sentence would become unduly disproportionate.

ACTS CITED: Criminal Appeal Act 1912
Crimes Act 1900
Sentencing Act 1989

CASES CITED:
House v. The King (1936) 55 CLR 499
AB v. The Queen (High Court, unreported 9 September 1999)
Regina v. Garforth (CCA, unreported 23 May 1991)

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL
No. 60520 of 1998 CORAM: SULLY, J.
HIDDEN, J.
GREG JAMES, J.

MONDAY 11 OCTOBER 1999

REGINA v. LINDSAY ROBERT ROSE
JUDGMENT
1 SULLY, J: I will ask Justice Greg James to give the first judgment. 2 GREG JAMES, J: An application for leave to appeal to the Court of Criminal Appeal against the severity of sentence is determined in accordance with the criteria under s.6(1) and (3) of the Criminal Appeal Act 1912. The appeal will only be successful if the court concludes that because of some error in the exercise of the sentencing discretion (House v. The King (1936) 55 CLR 499) the court is of the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed; in which case the court shall quash the sentence and pass such other sentence in substitution thereof and in other cases shall dismiss the appeal. 3 In the present case leave to appeal is sought in respect of five life sentences imposed in respect of five murders which were conceded by the applicant's counsel to be such that it was open to the court to come to the conclusion that the total criminality of those five murders constituted a worst case category warranting the imposition of life sentences pursuant to s.19A of the Crimes Act 1900. 4 The trial judge accepted that concession but appropriately concluded, for himself through the making of findings of his own in that regard and findings on an ultimate evaluation of the totality of criminality taking into account the evidence relating to all aspects, that the offences did fall into the worst case category (as he said at pp.35-36 of his lengthy and detailed remarks on sentence) and that no case had been made out for the applicant under s.442B of the Crimes Act to reduce the sentence otherwise to be imposed by reason of the prisoner's co-operation with the authorities. His Honour said:-

"… when one totals up, as it were, the crimes, the criminality,…

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 R v Rose

Details

AGLC: R v Rose [1999] NSWCCA 327
Case: [1999] NSWCCA 327
Decision Date: 11 October 1999

CaseChat Overview and Summary

The appellant, a prisoner serving a life sentence for multiple murders, applied for a reduction in his sentence, arguing that his co-operation with the authorities warranted a discount. The case was heard in the High Court of Australia. The primary legal issue before the court was whether the appellant's co-operation with the authorities warranted a discount in his life sentence, and if so, whether such a discount would result in an unduly disproportionate sentence.

The court considered the principles governing the imposition of life sentences for multiple murders, the degree of the appellant's co-operation with the authorities, and the potential consequences of granting a discount. It was established that co-operation with authorities could be a mitigating factor in sentencing, but the court must ensure that the sentence remains proportionate to the gravity of the crimes committed. In this case, the court found that while the appellant had provided significant assistance, a discount would render the sentence unduly disproportionate given the severity and brutality of the murders. Therefore, the court upheld the original sentence.

The High Court dismissed the appeal, affirming the appellant's life sentence without any reduction. The court emphasised that in cases involving multiple murders, especially those of the most heinous kind, the proportionality principle requires that the sentence reflect the gravity of the crimes. The appellant's co-operation, while acknowledged, did not warrant a discount that would undermine the proportionality of the sentence.

Orders