R v Rossi-Murray - [2009] NSWCCA 177

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Rossi-Murray [2009] NSWCCA 177

FILE NUMBER(S):
2008/16926

HEARING DATE(S):
25/05/2009

JUDGMENT DATE:
8 July 2009

PARTIES:
Regina v Barmah Rossi-Murray

JUDGMENT OF:
Giles JA Howie J Buddin J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/16926

LOWER COURT JUDICIAL OFFICER:
C Armitage DCJ

LOWER COURT DATE OF DECISION:
02/02/2009

COUNSEL:
V Lydiard - Crown
M Ierace SC - respondent

SOLICITORS:
S Kavanagh - Crown
S O'Connor - Respondent

CATCHWORDS:
Criminal Law - Crown appeal - offences of home invasion and wounding with intent - whether offences is mid range of seriousness - whether departure from standard non-parole period too great - appropriateness of ex tempore remarks in complex sentencing case - failure to refer to aggravating factors including that offender on conditional bail.

LEGISLATION CITED:
Crimes Act 1900 - ss 33, 105A, 112(3)
Crimes (Sentencing Procedure) Act 1999 - s 21A

CATEGORY:
Principal judgment

CASES CITED:
Carroll v The Queen [2009] HCA 13; 83 ALJR 579
R v AB [2005] NSWCCA 360
The Queen v Osenkowski (1982)n 30 SASR 212
R v Li (NSWCCA, unreported, 9 July 1997)

TEXTS CITED:

DECISION:
1. The Crown appeal is allowed. 2. The sentences imposed in the District Court are quashed. 3. The respondent is sentenced on the offence of wounding with intent to inflict grievous bodily harm to a term of imprisonment consisting of a non-parole period of 3 years 6 months and a balance of term of 3 years 6 months to date from 15 April 2008. The non-parole period expires on 14 October 2011. 4. The respondent is sentenced on the offence of specially aggravated break and enter to a term of imprisonment consisting of a non-parole period of 5 years and a balance of term of 4 years to date from 15 October 2009. The non-parole period expires on 14 October 2014 the date upon which the respondent is eligible to be released to parole.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/16926
GILES JA
HOWIE J
BUDDIN J
WEDNESDAY 8 JULY 2009

REGINA v Barmah ROSSI-MURRAY

Judgment

GILES JA: I agree with Howie J.
HOWIE J: The respondent to this Crown appeal was sentenced in the District Court on 2 February 2009 for two offences to which he had earlier pleaded guilty. The first offence was contrary to s 112(3) of the Crimes Act, being a specially aggravated break, enter and steal offence committed on 5 March 2008 (“the home invasion offence”). That offence carries a maximum penalty of imprisonment for 25 years and there is a standard non-parole period prescribed of 7 years. The second offence was committed on the same date and was contrary to s 33 of that Act, being an offence of wounding with intent to inflict grievous bodily harm (“the wounding offence”). That offence also carries a maximum penalty of imprisonment for 25 years and has a standard non-parole period of 7 years.
The Judge sentenced the respondent…

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 Rossi-Murray

Details

AGLC: R v Rossi-Murray [2009] NSWCCA 177
Case: [2009] NSWCCA 177
Decision Date: 8 July 2009

CaseChat Overview and Summary

In this case, the respondent was convicted of two offences: home invasion and wounding with intent. The Crown appealed the sentence imposed by the trial judge, arguing that it was manifestly inadequate. The trial judge had sentenced the respondent to a total of eight years imprisonment, with a non-parole period of four years and six months. The Crown argued that this sentence was too lenient, given the seriousness of the offences and the fact that the respondent was on conditional bail at the time of the crimes.

The legal issues before the court were whether the sentences imposed were appropriate in light of the maximum penalties prescribed for the offences, the standard non-parole periods, and the aggravating factors present in this case. The court also considered whether the judge's failure to refer to certain aggravating factors during the sentencing remarks was a significant error. The court noted that the judge had acknowledged some of these factors during counsel's submissions, but had not included them in the sentencing remarks.

The court found that the sentences imposed were manifestly inadequate, given the seriousness of the offences and the aggravating factors present in this case. The court noted that the respondent had been on conditional bail at the time of the crimes, which was an aggravating factor that the judge had acknowledged during counsel's submissions. The court also noted that the judge had not referred to this factor during the sentencing remarks, which was a significant error. The court concluded that the sentences imposed did not sufficiently reflect the objective seriousness of the offences and were therefore unreasonable and plainly wrong.

The court ordered that the sentences imposed by the trial judge be set aside and that the case be remitted to the trial judge for re-sentencing. The court noted that the trial judge should consider the maximum penalties prescribed for the offences, the standard non-parole periods, and all relevant aggravating factors when imposing a new sentence. The court also noted that the trial judge should ensure that any aggravating factors are referred to in the sentencing remarks, rather than during counsel's submissions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Judge sentenced the respondent on the home invasion offence to a term of imprisonment with a non-parole period of 3 years 6 months and a balance of term of 3 years and 6 months. That sentence dated from 15 April 2008 so that the non-parole period expires on 14 October 2011. The Judge sentenced the respondent on the wounding offence to a similar sentence but it commenced on 15 April 2009. The non-parole period for that offence expires on 14 October 2012 and that is the date upon which the respondent can first be considered for release to parole. The overall sentence was therefore 8 years with an overall non-parole period of 4 years and 6 months. The Crown contends that this sentence is manifestly inadequate.The facts The facts can be briefly stated. On 5 March 2008 the respondent and a co-offender named Douglas decided to steal steroids from the home of the victim of the wounding. Douglas informed the respondent that he would be armed. At about 10.20pm the two men drove to the victim’s house in Riverstone. Douglas produced a gun from beneath the seat of the vehicle and showed it to the respondent. The two men had made balaclavas from pillowcases earlier that day, and they put these on before entering the house. The respondent was armed with a hunting knife and Douglas with a handgun. There were five persons residing at the premises at the time including the victim, who was aged 18 and his brother aged 20. The victim and another man named Ryan were watching television when the respondent and his co-offender arrived at the house. The respondent and Douglas gained entry to the premises by the respondent kicking open the locked front door. They confronted the two men in the lounge room and demanded that they lie on the floor. Although they complied with this demand, Douglas struck Ryan to the back of the head with the weapon. The respondent took a number of vials of steroids from a cupboard in the kitchen. The victim’s brother became aware of the disturbance in the house and confronted the two men. The respondent ran from the house. A melee then ensued during which Douglas pointed the weapon at both the victim and his brother. The victim was able to grab the hand of Douglas that was holding the weapon and the firearm was discharged five times during the struggle. At this time the respondent re-entered the premises with the knife in his hand. The victim confronted him and they struggled, during which the balaclava came off the respondent’s head. He was thus recognised by the victim and his brother who had known the respondent since he was a child. Ryan also recognised the respondent. The victim asked the respondent why he was doing this and he replied that he needed money. The victim forced the respondent to the ground and punched him repeatedly. The respondent then stabbed the victim twice to the chest and three times to the back. One of these wounds penetrated the victim’s lung. The respondent and Douglas then fled the premises. The victim was taken to hospital and treated for his wounds including a drain placed in his chest. He was discharged from hospital on 10 March 2008.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Court was reminded of the approach to be taken to Crown appeals and the relevant principles set out in R v AB [2005] NSWCCA 360 and of the passage from the judgment of King CJ in The Queen v Osenkowski (1982) 30 SASR 212 as to the exercise of mercy arising where “a judge’s sympathies are reasonably excited by the circumstances of the case”.Decision In my opinion the sentences insufficiently reflect the objective seriousness of the two offences so as to be unreasonable and plainly wrong. This would be so having regard only to the maximum penalties prescribed. But the inadequacy is even more apparent when consideration is given to the standard non-parole periods as a guidepost to the appropriate sentence to be imposed for each offence. This is notwithstanding the pleas of guilty and the discount of 20 per cent for the utilitarian value of the pleas. I am persuaded that, had the Judge properly considered the aggravating factors that applied to each offence, especially the fact that the offences were committed while the respondent was on conditional liberty for serious criminal offences of a similar nature, he could not have reasonably determined that a sentence with a total minimum period of custody of 4 years and 6 months could properly reflect the purposes of punishment that must be evident in the non-parole period. In my opinion the sentences imposed do not give effect to what the Judge said at the outset of his sentencing remarks about the seriousness of the offending, its prevalence and the need for both general and specific deterrence. The respondent points out that there is a disconformity between the sentencing remarks, on the one hand, and matters referred to by the Judge in discussion with counsel, on the other, in so far as some matters that his Honour indicated he would view as aggravating factors during the Crown’s address were not referred to during the sentencing remarks. So in answer to the criticism made by the Crown that the judge failed to take into account a number of aggravating factors, the respondent relies upon comments made by his Honour indicating an acceptance of those matters as aggravating the seriousness of the offences during addresses. This Court has shown a reluctance to take into account remarks made by a judge during counsel’s submissions as being incorporated by implication into the sentencing remarks. Yet the respondent asks the Court to do so in this case and, thereby, in effect, excuse the failure by the Judge to refer to matters that were of some significance in his evaluation of the seriousness of the offences and the relevance of the respondent’s subjective circumstances during the course of his remarks. With respect to his Honour it is unfortunate that he felt some time constraint to resolve the determination of the sentence and its imposition upon the respondent by reason of the time of day and the pending list the next day. Sentencing can be complicated in this State particularly in light of the introduction of provisions such as s 21A and the standard non-parole period. Very experienced judges can fall into the traps that Parliament has unconsciously set for sentencing courts in the relevant legislation.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.