R v Rose - [2015] VSC 614

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL JURISDICTION
SCR 2014 0157

THE QUEEN

DAVID ROSE

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JUDGE:	BEALE, J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 June and 5 November 2015
DATE OF SENTENCE:	5 November 2015
CASE MAY BE CITED AS:	R v Rose
MEDIUM NEUTRAL CITATION:	[2015] VSC 614

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CRIMINAL LAW — Sentence – Intentionally cause serious injury – Plea of guilty - Elderly offender and victim – Offender suffers from poor physical and mental health – Five year Community Corrections Order imposed

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy QC	Office of Public Prosecutions
For the Defendant	Mr J Williams	Victorian Legal Aid

1David Rose, you have pleaded guilty to one charge of intentionally causing serious injury which carries a maximum penalty of 20 years' imprisonment.

Circumstances of Offending
2In September 2013 you were a resident of the Doutta Galla aged care facility in Avondale Heights. Your victim, Stefano Bottegaro, was also a resident there. At the relevant time you were 68 years of age and Mr Bottegaro was 87 years of age.
3Mr Bottegaro suffered from dementia and had a habit of wandering the corridors of the facility. On 28 September 2013, he twice wandered into your bedroom uninvited. The first occasion occurred very early in the morning. CCTV cameras which monitored the corridors of the facility captured Mr Bottegaro entering your room at about 4.50 am. In your subsequent record of interview with police you gave the following account, at Q119, of what happened once he entered your room:
…He come into my room… I don't know how he got into my room… because… I lock my door… the first thing I thought off (sic), oh, it's a member of staff… And the next thing I felt on the chest was fingers and hands on my chest. And then it comes up to my mouth and puts the fingers in my mouth… And I looked up and I said, 'Get out of here or I'll kill you. This is my room, get out of here’. He said, 'My room, my room'.. … then he walked over to my walker and he grabbed my walker and started to walk out. And with that, I just flew out of bed, and in a rage… I grabbed him by… the back of the pyjamas … and I pulled him towards me and he must have hit my fist… So I pushed him in the wall. He said, 'This is my room' … and I threw him against the wall - against the door… I walked over again and grabbed him by the shirt …and I pulled him back towards me and I opened the door and then I just threw him out… I said, 'Now, piss off out of here and keep out of my room. You come back into my room again and I'll kill you’.[1]
[1] Prosecution Opening [7].
4The CCTV cameras captured Mr Bottegaro falling backwards…

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 [2015] VSC 614
Case: [2015] VSC 614
Decision Date: 5 November 2015

CaseChat Overview and Summary

In the matter of R v Rose, the defendant was convicted of intentionally causing serious injury to an elderly victim. The case was heard in the Magistrates’ Court of Victoria. The defendant pleaded guilty to the charge, which arose from an incident where he inflicted significant harm upon an elderly individual. The circumstances of the offence and the background of both the offender and the victim played a pivotal role in the sentencing deliberations.

The court was tasked with determining an appropriate sentence that balanced the need for punishment and deterrence with considerations of the offender's health and the principles of restorative justice. The defendant, who is elderly himself and suffers from poor physical and mental health, presented a complex case for sentencing. The court considered the defendant's guilty plea, his health conditions, and the impact of the offence on the victim, who was also elderly.

After weighing these factors, the Magistrates’ Court concluded that the most appropriate sentence was a five-year Community Corrections Order. This decision reflects a balanced approach, recognising the defendant's health issues while ensuring the sentence met the needs of justice and public safety. The court emphasised the importance of rehabilitation and community supervision in light of the defendant's health and the nature of the offence.

Orders