R v Rose

Case [2004] NSWCCA 326

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v Rose [2004]  NSWCCA 326

FILE NUMBER(S):
2004/1856
60264/04

HEARING DATE(S):               22/09/04

JUDGMENT DATE: 22/09/2004

PARTIES:
Crown - Applicant
Robert Matthew Rose - Respondent

JUDGMENT OF:       Spigelman CJ Barr J Hoeben J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          04/11/0023

LOWER COURT JUDICIAL OFFICER:     Ainslie-Wallace DCJ

COUNSEL:
GIO Rowling - Applicant Crown
Ms H Cox - Respondent

SOLICITORS:
S Kavanagh, Solicitor for Public Prosecutions - Crown
S O'Connor, Legal Aid Commission - Respondent

CATCHWORDS:
Crown appeal principles - sentencing discretion - rehabilitation.

LEGISLATION CITED:
Court of Criminal Appeal Act, 1912 - s5D,s11
Crimes Act, 1900 - s112(1)
Crimes (Sentencing Procedure) Act, 1999, ss11,33
Pawnbrokers and Secondhand Dealers Act, 1996 - s24

DECISION:
Crown appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/1856
60264/04

SPIGELMAN CJ
BARR J
HOEBEN

Wednesday, 22 September, 2004

REGINA v Robert Matthew ROSE

Judgment

  1. SPIGELMAN:  I invite Justice Hoeben to give the first judgment.

  2. HOEBEN J:  On 15 January 2004 at the Central Local Court the respondent pleaded guilty to the following offence for which he was committed for sentence to the Sydney District Court:

    “That on 17 September 2003 he did break and enter the dwelling house of Pam White at 2/44A Bayswater Road Kings Cross and in the said dwelling house did steal certain property of the said Pam White contrary to the provisions of s112(1) of the Crimes Act 1900 the maximum penalty for which was imprisonment for 14 years.”

  3. On 1 April 2004 at the Sydney District Court before her Honour, the respondent adhered to his plea and asked that each of the following offences be taken into account under the provisions of s33 of the Crimes (Sentencing Procedure) Act 1999:

    Three offences that on 17 September 2003 he did dispose of stolen property knowing it to have been stolen; contrary to the provisions of s189 of that Act, the maximum penalty for which was imprisonment for 3 years and;

    Three offences that on 17 September 2003 he did make a statement to a pawnbroker knowing it to be false; contrary to the provisions of s24 of the Pawnbrokers and Secondhand Dealers Act 1996, the maximum penalty for which was $550.

  4. On 21 May 2004 the respondent came before her Honour for sentence. Her Honour disposed of the matter by utilising the provisions of s11 of the Crimes (Sentencing Procedure) Act 1999 and deferred passing sentence for the purposes of rehabilitation. Her Honour granted the respondent bail to attend court for sentence on 20 May 2005 on certain conditions including continuing to participate in the Bridge Program run by the Salvation Army. It was also a condition that if for any reason the respondent was discharged from that program, he would notify the District Court Criminal registry of that fact within twenty-four hours and that on his release from the Bridge Program, he would report to the city office of the NSW Probation and Parole Service and accept the supervision…

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Details
AGLC
R v Rose [2004] NSWCCA 326
Case
[2004] NSWCCA 326
Decision Date

CaseChat Overview and Summary

The case of R v Rose involved an appeal by the Crown against a sentence imposed by her Honour, which was deemed manifestly inadequate. The respondent, who had a history of criminal activity, was convicted of breaking and entering, and stealing property from a residence. The court deferred sentencing to allow for the respondent's rehabilitation, requiring him to participate in the Bridge Program run by the Salvation Army and report to the NSW Probation and Parole Service upon release. The Crown argued that the sentence was inadequate, considering the objective seriousness of the offence and the need for general deterrence.

The primary legal issue before the court was whether the sentence imposed by her Honour involved a wrongful exercise of discretion or a clear error of principle. The Crown contended that the sentence failed to appropriately reflect the seriousness of the offence and did not adequately consider the need for general deterrence and the protection of society. The respondent's legal team argued that the sentence was reasonable, given the circumstances, and that the court was entitled to defer sentencing for rehabilitation purposes.

The court found that the sentence was reasonably open to her Honour, and no clear error of principle was evident. The court emphasised that Crown appeals should be rare and that the sentencing court has broad discretion to mould an appropriate sentence based on the specific circumstances of the offender. The court noted that the absence of certain aggravating factors, such as professional planning and the presence of force, supported the appropriateness of the sentence. The court concluded that the appeal should not succeed as the sentence did not involve a wrongful exercise of discretion or a clear error of principle.

The final orders of the court were that the appeal by the Crown against the sentence imposed by her Honour be dismissed, and the original sentence, which included the deferral for rehabilitation, was to stand.

Orders

Orders of the court

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Background

Background to the litigation

On 21 May 2004 the respondent came before her Honour for sentence. Her Honour disposed of the matter by utilising the provisions of s11 of the Crimes (Sentencing Procedure) Act 1999 and deferred passing sentence for the purposes of rehabilitation. Her Honour granted the respondent bail to attend court for sentence on 20 May 2005 on certain conditions including continuing to participate in the Bridge Program run by the Salvation Army. It was also a condition that if for any reason the respondent was discharged from that program, he would notify the District Court Criminal registry of that fact within twenty-four hours and that on his release from the Bridge Program, he would report to the city office of the NSW Probation and Parole Service and accept the supervision and obey all reasonable directions of that service for the period of his remand.Facts On 29 June 2004 the Director of Public Prosecutions signed a Notice of Appeal to the Court of Criminal Appeal pursuant to the provisions of s5D of the Criminal Appeal Act 1912 against the sentence imposed by her Honour on the ground that it was manifestly inadequate. The Notice of Appeal was served on the respondent on 13 July 2004. The background facts can be briefly stated. At about 7.20 am on Wednesday, 17 September 2003 the victim, Pam White, left her home at 2/44A Bayswater Road, Kings Cross locked and secured. Between then and about 4.20 pm the respondent broke into the premises by breaking a window and stole approximately forty compact discs, an NEC video cassette recorder, a camera, a Sony brand walkman and a pair of silver earrings with diamond shaped red stones. The victim returned home at approximately 4.20 pm and found that the window had been broken and the property described had been stolen. About 3 pm that day the respondent sold the NEC video cassette recorder for $50 and later, fifteen of the compact discs stolen from the premises for $30. In each case he produced identification of himself and signed a document by which he stated that he was the owner of the goods. At about 6 pm on that day, the respondent sold ten compact discs stolen from the premises for $10. Again he produced identification of himself and signed a document by which he stated that he was the owner of the goods. These are the offences that the respondent asked to have taken into account. On 19 September 2003 the victim found the NEC video cassette recorder and fifteen of the compact discs at the Alfa Super Bargain Centre and recovered them on payment of $78. The respondent’s fingerprints were found on pieces of broken glass from the window of the premises. The respondent was arrested in Bourke Street, Woolloomooloo on 6 October 2003 and charged with the offences.Remarks on sentence Her Honour’s remarks on sentence can be summarised as follows. Her Honour outlined the personal circumstances of the respondent. He was born on 25 May1976 and was aged twenty-eight years at the time of the commission of the offence. The respondent had a long criminal history, which included many convictions for breaking, entering and stealing and other offences for dishonesty for which he had been sentenced to terms of imprisonment. Her Honour noted that in May 2003 the respondent had been sentenced to a two-year suspended sentence for a matter of drive whilst disqualified and was in fact serving this suspended sentence when he committed the offence for which he was to be sentenced.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

SPIGELMAN CJ BARR J
It was also submitted that because of the weight given by her Honour to the respondent’s subjective circumstances, she had failed to impose a sentence that properly reflected the objective seriousness of the offence and had appropriate regard to the need for general deterrence and the fundamental purpose of punishment, namely the protection of society.Decision Although other judges on the same facts may have reached a different conclusion, I am not persuaded that the sentence in this case involved a wrongful exercise of her Honour’s discretion or a clear error of principle. There is nothing in the particular facts of this case which would make this case an appropriate vehicle for establishing principle for the guidance of courts whose duty it is to sentence. I am of the opinion that the deferral of sentencing for rehabilitation pursuant to s11 of the Crimes (Sentencing Procedure) Act 1999 was an outcome reasonably open to her Honour and that error has not been revealed. As was noted by Spigelman CJ in R v Baker [2000] NSWCCA 85:“The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is so particularly with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred.” (at [19]) There are a number of sentencing principles which support her Honour’s approach. Her Honour was well aware of the objective seriousness of the offence and of the need to take into account the respondent’s previous record. Nevertheless, as was pointed out by Grove J in Ponfield, there is a broad spectrum of circumstances under which this type of offence can be committed. It is not for the courts to apply some rigid template to such offences but by having due regard to proper sentencing principles “mould an appropriate sentence for a particular offender” – Grove J, Ponfield para 46. In relation to this type of offence:“It will of course be requisite for a sentencing court to give appropriate weight to matters in mitigation as manifest in a particular case. These will include evidence of genuine regret and remorse and any rehabilitative steps taken by the offender. Whilst addiction to drugs and alcohol is a relevant circumstance for the court to consider it is not of itself a mitigating factor.” (Grove J, Ponfield – para 49) Implicit in that approach is the proposition that when sentencing for this type of offence a judge is given full scope to exercise the sentencing discretion. As was submitted, on behalf of the respondent, this particular offence was at the lower end of the range in relation to like offences. In particular, the following aggravating factors which were identified in Ponfield were absent:(a)The offence did not have the hallmarks of professional planning organisation or execution.(b)The offence was not committed at premises of the elderly, the sick or the disabled.(c)The offence was not accompanied by vandalism or other significant damage to property.(d) There was one offence only of break, enter and steal.(e)The offence was not committed as a series of repeat incursions into the same premises.(f) The value of the stolen property was not particularly high.(g)The offence was not committed at a time when it was likely that the premises would be occupied;(h) There was little or no apparent trauma suffered by the victim.(i) There was no force or threatened force.

Ratio Decidendi

Legal Principle Established

Established by: SPIGELMAN CJ BARR J

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