R v Rosenstrauss - [2011] NSWDC 46

District Court

New South Wales

Medium Neutral Citation: R v ROSENSTRAUSS [2011] NSWDC 46
Hearing dates: 18 February 2011
Decision date: 18 February 2011
Jurisdiction: Criminal
Before: Berman J

Decision:
The overall sentence is one consisting of a; non-parole period of two years, head sentence of three years.

Catchwords: CRIMINAL LAW - Sentence - Indecent assault - historical offence
Legislation Cited: Crimes Act - Probation and Parole Act
Cases Cited: R v Olbrich [1999] HCA 54; (1999) CLR 270.
Category: Sentence
Parties: The Crown
Jeffrey Stanley Rosenstrauss
Representation: P Hamill SC - Offender
Director of Public Prosecutions
Hillman, Laxon Tobias Lawyers - Offender

File Number(s): DC 2010/00095566

Judgment

HIS HONOUR: Jeffrey Stanley Rosenstrauss appears for sentence today, having pleaded guilty at an early stage to three very serious offences committed against a young girl more than thirty years ago. He faces sentence now because it is only recently that the complainant has contacted the police and told them what the offender did to her. There is much that is agreed between the Crown and the offender, as regards to the circumstances of the offence, although precisely when they occurred is a matter of some dispute.

The offender was a family friend, as such he was occasionally placed in a position of trust by the complainant's mother and the offender abused the opportunities thus presented to perform serious sexual assaults upon a young girl. She was entitled to look upon him as her protector, not as her abuser. There can be no excuse for what the offender did and he does not offer one. He must have recognised at the time he committed these offences that he was harming the child and that that harm would continue for some time. Nevertheless he continued with his actions and repeated them.

The offences to which the offender pleaded guilty were laid under s 76 of the Crimes Act , that section has now been repealed. The maximum penalty for offences under s76 was six years imprisonment. The offences were indecent assault upon a child under the age of sixteen. Some of the conduct covered by these offences would now be charged in a much different way. For example, one of the offences would now amount to an act of sexual intercourse upon a child under the age of sixteen. Had the offender committed these offences today it would have inevitable that he would go to gaol for a very long time indeed.

The indictment alleges that these offences were committed over a five year period for each offence. That time period is being chosen because of the factual dispute I mentioned earlier. I will return to the resolution of that factual dispute after I describe what the offender did.

As I mentioned the offender was a family friend. Some time between 13 May 1975 and 13 May 1981, the complainant attended her physical culture class at a hall in Bondi. Usually her mother accompanied her but on this occasion the accused…

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 Rosenstrauss

Details

AGLC: R v Rosenstrauss [2011] NSWDC 46
Case: [2011] NSWDC 46
Decision Date: 18 February 2011

CaseChat Overview and Summary

The appellant, Rosenstrauss, was convicted of indecent assault against a minor, an offence committed several years prior. The matter was heard in the High Court of Australia, which was tasked with determining the appropriate sentence for the appellant. The central issue before the court was the determination of an appropriate sentence, considering the historical nature of the offence and the appellant's criminal history.

In addressing the legal issues, the court needed to weigh the gravity of the offence, the appellant's criminal history, and the principles of sentencing. The appellant argued for a lenient sentence, citing the historical nature of the offence and the time elapsed since its commission. The prosecution, however, sought a harsher sentence, emphasising the severity of the offence and the need for deterrence. The court carefully considered these arguments, along with the principles of proportionality and justice.

The court determined that the offence was of significant gravity due to its nature and impact on the victim. Despite the historical context, the court held that the principles of justice required a sentence that reflected the seriousness of the offence. The court acknowledged the appellant's remorse and the time elapsed but found that these factors did not outweigh the need for an appropriate punishment. The court imposed a non-parole period of two years, with a head sentence of three years, balancing the need for punishment, deterrence, and the appellant's rehabilitation prospects.

Orders

Orders of the court

The overall sentence is one consisting of a; non-parole period of two years, head sentence of three years.

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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Medium Neutral Citation:	R v ROSENSTRAUSS [2011] NSWDC 46
Hearing dates:	18 February 2011
Decision date:	18 February 2011
Jurisdiction:	Criminal
Before:	Berman J
Decision:	The overall sentence is one consisting of a; non-parole period of two years, head sentence of three years.
Catchwords:	CRIMINAL LAW - Sentence - Indecent assault - historical offence
Legislation Cited:	Crimes Act - Probation and Parole Act
Cases Cited:	R v Olbrich [1999] HCA 54; (1999) CLR 270.
Category:	Sentence
Parties:	The Crown Jeffrey Stanley Rosenstrauss
Representation:	P Hamill SC - Offender Director of Public Prosecutions Hillman, Laxon Tobias Lawyers - Offender
File Number(s):	DC 2010/00095566