District Court
New South Wales
Medium Neutral Citation: R v Rosenow [2022] NSWDC 126 Hearing dates: 26 April 2022 Date of orders: 26 April 2022 Decision date: 26 April 2022 Jurisdiction: Criminal Before: Grant DCJ Decision: Orders at [46]
Catchwords: SENTENCING – intentionally causing a fire – volunteer firefighter deliberately lighting grass fires – bushfire season – unauthorised backburning – community heroes – conduct diametrically opposed to community expectations – increased moral culpability – strong subjective case – remorseful offender – strong prospects of rehabilitation
Legislation Cited: Crimes Act 1900
Cases Cited: Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518
McKinnon v R [2020] NSWCCA 106
Category: Sentence Parties: Regina
Benjamin Charles RosenowRepresentation: Counsel:
Solicitors:
Mr Chris McGorey (offender)
Mr William Glowrey (offender)
Mr Aaron Thomas (DPP)
File Number(s): 2021/00020059 Publication restriction: Nil
Ex Tempore Judgment
Introduction
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Benjamin Rosenow is to be sentenced for three offences of intentionally causing a fire and then being reckless as to the spread of that fire to vegetation on public land, namely, the roadside of Whitton Darlington Point Road, Whitton, contrary to section 203E(1) of the Crimes Act 1900.
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The offender asks me to take into account on a Form 1 a further offence under the same provision.
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The maximum penalty applicable is 21 years imprisonment, with a standard non-parole period of 9 years imprisonment. These are important guideposts in the assessment of sentence; a sentencing judge should steer by the maximum penalty and standard non-parole period, but not aim for it.
Plea of guilty
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A plea of guilty was accepted by the Local Court Magistrate in committal proceedings for the offences. As such, the offender is entitled to have his sentence reduced by 25% for his early plea in accordance with section 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.
The Facts
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There is an agreed facts document. In summary, the facts are these:
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The offender has been a member of the Rural Fire Service (RFS) since 21 March 2009.
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On 29 December 2020, the offender travelled down Whitton Darlington Point Road, Whitton. He pulled over, opened the driver’s side door of his vehicle, and set fire to the dry grass using a lighter (sequence 1). He went home. The RFS received a call to attend a grass fire at the location, which the offender attended in his capacity as a member of the RFS. The fire was extinguished.
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Later the same evening, the offender travelled the same road again. Again, he set fire to the dry grass before returning home (sequence 2). The RFS received a call which the offender, again, attended. The fire was extinguished.
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On 11 January 2021, the offender travelled in…
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- AGLC
- R v Rosenow [2022] NSWDC 126
- Case
- [2022] NSWDC 126
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the appropriate sentencing principles to apply in light of Rosenow's dual role as a volunteer firefighter and his criminal actions, the degree of moral culpability attributable to his conduct, and whether his remorse and prospects for rehabilitation warranted a lesser sentence. The court had to balance the gravity of the offence against the personal circumstances of the offender.
The court acknowledged Rosenow's remorse and prospects for rehabilitation, yet emphasised the severe breach of public trust and the diametrical opposition of his conduct to community expectations. Despite these factors, the court found that the strong subjective case for punishment could not be overlooked. Ultimately, the court sentenced Rosenow, reflecting the need to uphold public confidence in the justice system and the seriousness of his breach of trust.
The court ordered the sentence at [46], taking into account the factors discussed. The sentence was intended to serve both as punishment for the offence and as a deterrent to others who might be tempted to commit similar acts of deliberate fire-lighting, especially during a bushfire season.
Orders
Orders of the court
Orders at [46]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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