R v Rose

Case [2015] NSWCCA 318 16 December 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Rose [2015] NSWCCA 318
Hearing dates: 11 November 2015
Date of orders: 16 December 2015
Decision date: 16 December 2015
Before: Ward JA at [1];
Davies J at [80];
RS Hulme AJ at [81]
Decision:
(1) Crown appeal be allowed.
(2) Sentence imposed on the respondent on 25 June 2015 be set aside.
(3) In its place, the respondent is sentenced to imprisonment for a term of 5 years, commencing on 11 October 2014 and expiring on 10 October 2019, with a non-parole period of 3 years to expire on 10 October 2017.
(4) The earliest date upon which the respondent will be eligible for release on parole is 11 October 2017.

Catchwords: CRIMINAL LAW – Crown sentence appeal – armed robbery – whether sentence manifestly inadequate – whether sentencing judge erred in approach to guideline judgment – whether sentencing judge erred in failing properly to consider the offender’s conditional liberty status at time of offending
Legislation Cited: Crimes Act 1900 (NSW), s 97
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 44, 21A
Criminal Appeal Act 1912 (NSW), s 5D
Cases Cited: CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 89 ALJR 407
Dinsdale v The Queen [2000] HCA 56; (2000) 202 CLR 321
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Button; R v Griffen [2002] NSWCCA 159; (2002) 54 NSWLR 455
R v Cortese [2013] NSWCCA 148
R v Harris [2015] NSWCCA 81
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Street [2005] NSWCCA 139
The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Yousif v R [2014] NSWCCA 180
Category: Principal judgment
Parties: Director of Public Prosecutions (Appellant)
Joe Daniel Rose (Respondent)
Representation:
Counsel:
Ms S Dowling SC (Appellant)
Ms C Loukas SC (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Appellant)
Aboriginal Legal Service (Respondent)

File Number(s): CCA 2014/00281491
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2015] NSWDC 102

Date of Decision:

25 June 2015

Before:

Mahony SC DCJ

File Number(s):

14/281491

Judgment

WARD JA: The respondent, Mr Rose, pleaded guilty at Queanbeyan Local Court on 10 April 2015 to one count of robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act1900 (NSW). That offence carries a maximum penalty of 20 years’ imprisonment. No standard non-parole period applies.
On 25 June 2015, Mr Rose was sentenced to imprisonment for a term of 3 years and 3 months to date from…

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] NSWCCA 318
Case: [2015] NSWCCA 318
Decision Date: 16 December 2015

CaseChat Overview and Summary

The case of R v Rose involved the appellant, who was convicted of armed robbery, appealing against the sentence imposed by the trial judge. The appeal was brought before the court on the basis that the sentence was manifestly inadequate and that the trial judge had erred in his approach to sentencing, particularly in relation to the guideline judgment. Additionally, the appellant argued that the sentencing judge had failed to properly consider the appellant’s conditional liberty status at the time of the offence.

The legal issues before the court were whether the sentence imposed by the trial judge was manifestly inadequate, whether the trial judge had erred in his approach to sentencing by not adequately considering the guideline judgment, and whether the trial judge had failed to properly take into account the appellant’s conditional liberty status at the time of the offence.

In considering these issues, the court found that while the trial judge had exercised his discretion in imposing the sentence, he had failed to properly consider the principles set out in the guideline judgment. The court held that the trial judge had not adequately weighed the aggravating and mitigating factors of the case, particularly the appellant’s conditional liberty status at the time of the offence. As such, the court found that the sentence was manifestly inadequate and allowed the appeal. The court then imposed a new sentence on the appellant.

In conclusion, the court allowed the appeal and imposed a new sentence on the appellant. The court found that the trial judge had erred in his approach to sentencing and had not properly considered the appellant’s conditional liberty status at the time of the offence. The court held that the original sentence was manifestly inadequate and that the appellant was entitled to a new sentence that properly reflected the circumstances of the case.

Orders