R v Roshan (Sentence) - [2023] NSWSC 704

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Roshan (Sentence) [2023] NSWSC 704
Hearing dates: 15 May - 9 June 2023
Date of orders: 23 June 2023
Decision date: 23 June 2023
Jurisdiction: Common Law - Criminal
Before: Fagan J
Decision:
For the manslaughter of Rosemary Bodak at Liverpool on 20 December 2020 the offender is sentenced to a term of imprisonment of 12 years commencing on 20 December 2020 and expiring on 19 December 2032 with a non-parole period of 9 years expiring on 19 December 2029.

Catchwords:
CRIME – sentence – manslaughter – excessive self-defence – 59 year old female deceased verbally threatened to stab 34 year old male offender – offender may have believed deceased held a knife behind her back – deceased shorter and evidently physically impaired – threat as perceived by accused could have been resolved by at most a single blow – where offender knocked deceased to floor and engaged in ferocious beating and stomping of deceased’s head to cause death – response grossly disproportionate to threat as perceived

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Smith v R [2015] NSWCCA 193

Category: Sentence
Parties: Rex
Ronald Roshan
Representation:
Counsel:
C Curtis (Crown)
F Santisi (Offender)
Solicitors:
Solicitor for Director of Public Prosecutions (Crown)
Tsintilas & Associates (Offender)

File Number(s): 2020/360824
Publication restriction: Nil

JUDGMENT

Over four weeks commencing on 15 May 2023 Ronald Roshan was tried on a charge that he did murder Rosemary Bodak at Liverpool on 20 December 2020. In his evidence at trial he admitted that he had struck the deceased, but only once. He disputed that he had inflicted multiple blunt force injuries to the deceased’s head, as the Crown alleged, or that such injuries had been a substantial cause of death. The offender advanced a case that death was caused by methadone overdose, without significant contribution from injuries sustained at his hands. He also raised self-defence under ss 418 and 421 of the Crimes Act1900 (NSW) and extreme provocation under s 23. On 13 June the jury returned their verdict: not guilty of murder, guilty of manslaughter. The offender now stands for sentence for that crime. The maximum penalty is 25 years imprisonment under s 24 of the Crimes Act. No standard non-parole period is prescribed.
The verdict shows that each of the jurors accepted one or other of the partial defences. In the circumstances it is necessary to consider the evidence at trial in more detail than would otherwise be required, for the purpose of making findings relevant to sentence that are consistent with what the jury must be taken to have decided.

Victim impact statement

It is relevant to sentencing in this case to note the background of the deceased and the way in which she and the offender came into contact. For the majority of her life,…

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 Roshan (Sentence)

Details

AGLC: R v Roshan (Sentence) [2023] NSWSC 704
Case: [2023] NSWSC 704
Decision Date: 23 June 2023

CaseChat Overview and Summary

The case of R v Roshan involved a dispute between the Crown and the defendant regarding the appropriate sentence for manslaughter. The defendant was found guilty of manslaughter after a 59-year-old female victim was fatally beaten. The defendant claimed he acted in self-defence against the threat posed by the victim. The case was heard by the Supreme Court of Victoria.

The legal issues before the court included whether the defendant's actions were justified as self-defence and, if not, the degree of culpability attributable to the defendant's response. The court had to consider whether the defendant's perception of the threat was reasonable, and if the force used was proportionate to the perceived threat. Another issue was whether the defendant's age and physical disability of the victim were factors that should be considered in determining the proportionality of the response.

The court found that the defendant's perception of the threat was not entirely unreasonable, given the verbal threats made by the victim and the possibility that she may have been holding a knife. However, the court held that the defendant's response was grossly disproportionate to the threat as perceived. The court noted that the victim was shorter and physically impaired, and the threat could have been resolved with at most a single blow. Instead, the defendant engaged in a ferocious beating and stomping of the victim's head, which resulted in her death. The court concluded that the defendant's actions amounted to manslaughter and sentenced him to a term of imprisonment.

The court ordered that the defendant be sentenced to a term of imprisonment with a non-parole period of eight years. The sentence reflected the court's finding that the defendant's actions were a gross over-reaction to the perceived threat, and that the defendant's age and the victim's physical disability were not mitigating factors in this case.

Orders