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.
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- AGLC
- R v Rosenow [2007] VSCA 265
- Case
- [2007] VSCA 265
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
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Ratio Decidendi
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