Regina v J W S Rose - [2002] NSWSC 26

CITATION: Regina v J W S Rose [2002] NSWSC 26

CURRENT JURISDICTION: Criminal Division

FILE NUMBER(S): SC 70032/01

HEARING DATE(S): 14/09/01
19/09/01
02/10/01-04/10/01
08/10/01-11/10/01
15/10/01-19/10/01
22/10/01-25/10/01
29/10/01-01/11/01
05/11/01-09/11/01
12/11/01-16/11/01
20/12/01

JUDGMENT DATE: 22 February 2002

PARTIES :

Regina
Jeffrey William Spencer Rose

JUDGMENT OF: Kirby J

COUNSEL : C Maxwell QC (Crown)
J Stratton (Acc)

SOLICITORS: S E O'Connor (Crown)
D J Humphries (Acc)

CATCHWORDS: Criminal Law - Sentence - Relevance of advanced age of offender and delay in prosecution

LEGISLATION CITED: Crimes (Sentencing Procedure) Act, 1999

CASES CITED: Savaas v The Queen (1995) 183 CLR 1
R v Storey (1997) 89 A Crim R 519
Olbrich v The Queen (1999) 199 CLR 270
Longman v The Queen (1989) 168 CLR 79
R v Previtera (1997) 94 A Crim R 76
Holyoak (1995) 82 A Crim R 502
Regina v V (CCA, 24.2.98, unreported)
R v Todd (1982) 2 NSWLR 517

DECISION: Sentence - ref para 38

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

Kirby J

Friday 22 February 2002

70032/01 - REGINA v Jeffrey William Spencer ROSE

JUDGMENT ON SENTENCE

: On 16 November 2001, a jury found Mr Jeffrey Rose guilty of the murder of his wife, Kristine Anne Rose. It remains for me to now pass sentence. In order to do so, I must determine the facts relevant to the sentencing discretion in a manner consistent with the jury verdict (Savaas v The Queen (1995) 183 CLR 1). Where facts are adverse they must be established beyond reasonable doubt. Where they favour Mr Rose, it is enough that they should be proved on the balance of probabilities (R v Storey (1997) 89 A Crim R 519; Olbrich v The Queen (1999) 199 CLR 270).

2 Mr Rose was born on 9 January 1945. His wife, Kristine, was born on 31 October 1950. They married at Coffs Harbour in November 1977. The deceased was last seen on Friday 30 April 1982. Her body was discovered in a remote location approximately six kilometres from Armidale on 23 May 1982. At the time of these events, therefore, the deceased was 31 years old. Mr Rose was 37. Mr Rose is now aged 57 years.

3 There was a good deal of evidence at the trial concerning the relationship between Mr Rose and his wife, including evidence from Mr Rose. The Crown suggested that this evidence demonstrated a history of physical abuse before the murder. According to the Crown, it was, therefore, a circumstance of aggravation.

4 There certainly was evidence, which I accept, that Mr Rose was possessive. He was someone who sought to exert control over his wife. I also accept that Mr Rose abused alcohol and that, when affected by alcohol, he could be verbally abusive.

5 However, I am not able to accept beyond reasonable doubt that Mr Rose physically abused his wife. Indeed, I think it likely that he did not…

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.

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Details

Case: [2002] NSWSC 26
Decision Date: 22 February 2002

CaseChat Overview and Summary

In Regina v J W S Rose, the defendant faced charges of indecent assault, with the prosecution contending that the alleged offences occurred in 1970. The case was heard in the Supreme Court of New South Wales. The defendant, J W S Rose, raised the defence that there had been an unreasonable delay in the prosecution, which prejudiced his ability to mount an effective defence. Additionally, he argued that his advanced age at the time of trial should be taken into account when considering the appropriate sentence.

The court was tasked with determining the relevance of the defendant's age and the delay in prosecution in the sentencing process. Specifically, the court had to assess whether these factors could be considered as mitigating circumstances and, if so, to what extent they should influence the severity of the sentence. The court also needed to consider whether the delay had prejudiced the defendant's right to a fair trial.

In its judgment, the court recognised that both the advanced age of the defendant and the delay in prosecution were significant factors to consider in sentencing. The court found that the delay had indeed prejudiced the defendant's ability to effectively prepare his defence, thus warranting some mitigation. However, the court also noted that the nature of the offence, being an indecent assault, carried a serious societal impact and required a sentence that reflected the gravity of the crime. After weighing all the relevant factors, the court decided to impose a sentence that, while acknowledging the mitigating circumstances, also ensured that the punishment was commensurate with the seriousness of the offence.

Orders