R v Rosser - [2004] NSWCCA 216

CITATION: R v Rosser [2004] NSWCCA 216

HEARING DATE(S): 31 March 2004

JUDGMENT DATE:
1 July 2004

JUDGMENT OF: Sperling J at 1; Hidden J at 2; Howie J at 12

DECISION: Leave to appeal granted; appeal dismissed

CATCHWORDS: CRIMINAL LAW: - Application for leave to appeal against sentence - thrirty-three counts of defrauding a body corporate as an officer - whether sentences structured so as to offend principles in Pearce v The Queen - whether aggregate sentence excessive

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

CASES CITED: Pearce v The Queen (1989) 194 CLR 610
R v Fraser [2000] NSWCCA 97

PARTIES :
Regina (respondent)
Jennifer May Rosser (applicant)

FILE NUMBER(S): CCA 60258/03

COUNSEL: D Frearson (Crown)
R Day (pro bono solicitor for applicant)

SOLICITORS: C K Smith (Crown)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/51/0046

LOWER COURT
JUDICIAL OFFICER : Christie DCJ

60258/03

SPERLING J
HIDDEN J
HOWIE J
Thursday, 1 July, 2004

REGINA v Jennifer May ROSSER

Judgment

1 SPERLING J: I agree with Hidden J.

2 HIDDEN J: After a trial at the District Court at Coffs Harbour, the applicant, Jennifer May Rosser, was found guilty of thirty-three counts of defrauding a body corporate as an officer, an offence under section 176 A of the Crimes Act which carries a maximum sentence of ten years imprisonment. The trial judge sentenced her on the thirty-second count to imprisonment for four years, with a non-parole period of two years and three months, to date from 8 August 2002, the day of the verdict. On each of the other counts he sentenced her to fixed terms of imprisonment for fifteen months, to date from the same day. The aggregate sentence, then, was four years with a non–parole period of two years and three months. She seeks leave to appeal against sentence.

3 Initially the applicant was unrepresented and had prepared brief written submissions. However, on the day of hearing she was represented by Mr Roland Day, solicitor, on a pro-bono basis. He argued her case with vigour and we are indebted to him for his assistance.

4 It is unnecessary to recite the facts in any detail. The applicant had been the director of the Bellwood Pre-School in northern New South Wales. Over a sixteen month period between March 1998 and July 1999 she drew cheques on the pre-school account, held by the Bellwood Pre-School Parents and Friends Association Incorporated, and banked them into her own account. Both her account and that of the pre-school were held at the same credit union. The total amount involved exceeded $80,000. Count thirty-two, which his Honour described as “the principal count”, related to a cheque for $8,200.

5 The offences were committed by a mature woman with no criminal record. She is now forty-seven years old. At the time she had a drug and alcohol problem, as well as a gambling addiction. No doubt, the genesis of these personal difficulties is to be found in her disturbed background.…

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 Rosser

Details

AGLC: R v Rosser [2004] NSWCCA 216
Case: [2004] NSWCCA 216
Decision Date: 1 July 2004

CaseChat Overview and Summary

The case of R v Rosser was heard by the Court of Appeal, where the defendant sought leave to appeal against the sentence imposed by the lower court. Rosser was found guilty on thirty-three counts of defrauding a body corporate while acting as an officer. The primary issue before the court was whether the sentences imposed on these counts were structured in a manner that contravened the principles established in Pearce v The Queen, and whether the aggregate sentence was excessive. The Court had to consider whether the aggregate sentence imposed was disproportionately harsh in light of the principles set out in the Pearce case.

The court carefully examined the sentences imposed on each count and the total aggregate sentence. It considered whether the sentences were structured in a way that cumulatively or disproportionately impacted the defendant, which might violate the principles set out in Pearce v The Queen. The court also assessed whether the aggregate sentence was excessively punitive and disproportionate to the crimes committed. This involved weighing the severity of the offences, the role of the defendant, and the cumulative effect of the sentences.

In delivering its decision, the Court of Appeal determined that the sentences were not structured in a manner that contravened the principles in Pearce v The Queen. It found that the aggregate sentence, while severe, was not disproportionate to the nature and extent of the crimes committed. The court emphasised the importance of the defendant's role in perpetrating a significant fraud and the necessity of a deterrent sentence. Consequently, the Court dismissed the application for leave to appeal, upholding the original sentence imposed by the lower court.

No specific orders were made beyond dismissing the application for leave to appeal.

Orders