R v Rose

Case [2024] NSWCCA 193 28 October 2024

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Rose [2024] NSWCCA 193
Hearing dates: 21 June 2024
Date of orders: 28 October 2024
Decision date: 28 October 2024
Before: Harrison CJ at CL at [1];
Campbell J at [4];
Sweeney J at [72]
Decision:
The s 5D Criminal Appeal Act 1912 (NSW) appeal is dismissed.

Catchwords:
SENTENCING – Crown appeal against inadequacy of sentence – manifest inadequacy – offence of break and enter and commit a serious indictable offence – sentencing judge’s discretion to evaluate the objective seriousness – “leniency” associated with an intensive correction order significantly moderated by the respondent’s time in custody – imposition of an ICO is nevertheless a custodial sentence

Legislation Cited:
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 5, 11
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 7, 21A
Crimes Act 1900 (NSW), ss 105A, 112
Criminal Appeal Act 1912 (NSW), s 5D

Cases Cited:
Apulu v R [2022] NSWCCA 244
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cargnello v Director of Public Prosecutions (Cth) (2012) 266 FLR 464; [2012] NSWCCA 162
CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
FL v R [2020] NSWCCA 114
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mandranis v R [2021] NSWCCA 97
Manojlovic v R; R v Manojlovic [2020] NSWCCA 315
Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
R v Dugan [2006] NSWCCA 34; 160 A Crim R 135
R v Eaton [2023] NSWCCA 125
R v Eldelbi (2021) 105 NSWLR 133; [2021] NSWCCA 122
R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435
R v Quinlin [2021] NSWCCA 284; 293 A Crim R 253
Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; 97 ALJR 107
Zheng v R [2023] NSWCCA 64

Category: Principal judgment
Parties: Rex (Crown)
Timothy John Rose (Respondent)
Representation:
Counsel:
G Newton SC (Crown)
T Quilter with C Beshara (Respondent)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Quill Legal (Respondent)

File Number(s): 2022/372410
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

09 April 2024

Before:

David DCJ

File Number(s):

2022/372410

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 9 April 2024, the respondent was sentenced in the District Court after pleading guilty to an offence of breaking and entering his sometime partner’s dwelling and committing a serious indictable offence therein, namely, detaining with intent to obtain a psychological advantage while armed with a knife. That offence was contrary to s 112(2) Crimes Act 1900 (NSW) and carried…

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 [2024] NSWCCA 193
Case: [2024] NSWCCA 193
Decision Date: 28 October 2024

CaseChat Overview and Summary

In the case of R v Rose, the respondent was convicted of break and enter and committing a serious indictable offence. The Crown appealed the sentence imposed by the trial judge, arguing it was manifestly inadequate. The appeal was heard in the Court of Appeal, where the primary focus was on the proportionality and appropriateness of the sentence given the nature of the offence. The Crown contended that the sentence did not reflect the seriousness of the crime or the need for general deterrence.

The legal issues at the heart of the appeal centred on the evaluation of the objective seriousness of the offence and the appropriate exercise of the sentencing judge’s discretion. The Crown argued that the trial judge had not adequately considered the gravity of the offence and the necessity for a sentence that would serve as a deterrent. The respondent, on the other hand, maintained that the sentence was appropriate, given the specific circumstances and the time already served by the respondent in custody. The appeal court had to determine whether the sentence imposed was manifestly inadequate and whether the trial judge had erred in his assessment of the case.

In delivering the judgment, the Court of Appeal considered the nature of the offence, the respondent’s criminal history, and the principles of sentencing. The court held that while the "leniency" associated with an intensive correction order (ICO) was significantly moderated by the respondent's time in custody, the imposition of an ICO was nevertheless a custodial sentence. The court found that the trial judge had not erred in his evaluation of the case, and the sentence imposed was not manifestly inadequate. The appeal was therefore dismissed.

No further orders were made by the Court of Appeal beyond the dismissal of the appeal.

Orders