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R v Rosenow

R v Rosenow

Case [2007] VSCA 265 22 November 2007

Criminal Liability

Sentencing

Possession of Unregistered Firearms

Dishonestly Handling Stolen Goods

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 131 of 2007

THE QUEEN
	v
JOSHUA ROSENOW

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JUDGES:	ASHLEY and REDLICH JJA and CURTAIN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 November 2007
DATE OF JUDGMENT:	22 November 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 265

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Criminal law – Sentence – Possession, as a prohibited person, of unregistered firearms and a registered firearm – Dishonestly handling stolen goods – Charges arising from later events considered by sentencing judge as bearing upon prospect of rehabilitation – Specific error – Appellant re-sentenced to total effective sentence of 19 months’ imprisonment with non-parole period of 10 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr R F Edney	Mike Wardell

ASHLEY JA:

Joshua Rosenow appeals by leave against the sentence imposed upon him in the County Court at Ballarat on 4 May 2007, he having earlier pleaded guilty to the following offences, all of which were committed on 2 October 2006:

Count 1-  Possession, being a prohibited person, of an unregistered firearm[1]
Count 2-  Possession, being a prohibited person, of a (second) unregistered firearm
Count 3-  Possession, as a prohibited person, of a (third) – but registered - firearm[2]
Count 4-  Dishonestly handling stolen goods[3]

[1]Section 5 (1A), Firearms Act 1996 (Vic). The maximum penalty is 1800 penalty units or 15 years’ imprisonment.

[2]Section 5(1), Firearms Act. The maximum penalty is 1200 penalty units or 10 years’ imprisonment.

[3]Section 88, Crimes Act 1958(Vic). The maximum penalty is 15 years’ imprisonment.

The sentences imposed were as follows: on count 1, 16 months’ imprisonment, on each of counts 2 and 3, six months’ imprisonment, and on count 4, nine months’ imprisonment. The learned sentencing judge cumulated two months of the sentences imposed on counts 2 and 3 and four months of the sentence imposed on count 4 on the sentence imposed on count 1. The total effective sentence was thus 24 months’ imprisonment. His Honour fixed a non-parole period of ten months. The appellant having been on remand, in respect of unrelated matters, in the period 25 October 2006 to date of sentence, the judge specified that he had reduced the sentence to be served by the number of days in that period, which he took to be 191 days. That was, his Honour said, compliance in the particular case with what had been said in R v Wade.[4]
[4][2005] VSCA 276, [11]-[14]. See also R v Renzella [1997] 2 VR 88, 96-98; and R v McMahon [2006] VSCA 240, 18] – [22], Vincent JA.

Grounds of appeal

By his full statement of grounds, the appellant complained of five errors in the sentencing process. First, that the sentence was, in multiple respects, manifestly excessive. Second to fifth, that the learned sentencing judge had erred –

· In finding beyond reasonable doubt that the appellant had possession of ‘the firearms’ for an unlawful purpose.

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 Rosenow

Details

AGLC: R v Rosenow [2007] VSCA 265
Case: [2007] VSCA 265
Decision Date: 22 November 2007

CaseChat Overview and Summary

In the case of R v Rosenow, the appellant was convicted of possessing unregistered firearms, possessing a registered firearm while being a prohibited person, and dishonestly handling stolen goods. The appeal was heard in the High Court of Australia. The central issue before the court was whether the sentencing judge erred in considering subsequent events in determining the prospect of the appellant's rehabilitation. The appellant argued that the sentencing judge should not have taken into account events that occurred after the commission of the offences. The court was required to determine whether this constituted a specific error that warranted a new sentencing hearing.

The court considered the principles of sentencing in criminal law, particularly focusing on the relevance of post-offence events. It was noted that while the sentencing judge may consider the accused's prospects of rehabilitation, this must be balanced with the need to avoid prejudicing the accused by considering events that occur after the offence. The court held that the sentencing judge did indeed err in this respect by allowing post-offence events to unduly influence the sentencing decision. This error was deemed significant enough to warrant a re-sentencing of the appellant.

Upon re-sentencing, the court determined that the appropriate total effective sentence for the appellant was 19 months' imprisonment, with a non-parole period of 10 months. This decision took into account the nature and seriousness of the offences, the appellant's criminal history, and the potential for rehabilitation, without the influence of post-offence events. The court's re-sentencing aimed to ensure a just and proportionate outcome that adhered to legal principles and avoided the specific error identified in the original sentencing.

Orders