Rooke v The Queen - [2011] NSWCCA 280

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Rooke v R [2011] NSWCCA 280
Hearing dates: 30 September 2011
Decision date: 16 December 2011
Before: Whealy JA, Hislop J, Latham J
Decision:
Leave to appeal granted; appeal dismissed.

Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Royal [2003] NSWCCA 260
Mitchell v R [2006] NSWCCA 72
Cranshaw v R [2009] NSWCCA 80
JOD v R [2009] NSWCCA 205
Stevens v R [2009] NSWCCA 260
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
R v Holder [1983] 3 NSWLR 245
R v Mungomery [2004] NSWCCA 450, (2004) 151 A Crim R 376
Category: Principal judgment
Parties: Julien Peter Rooke v Regina
Representation: I. Nash (Applicant)
M. Cinque (Crown)
Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/42910; 2009/54889; 2009/80420; 2009/130495
Decision under appeal

Date of Decision:

2010-10-01 00:00:00

Before:

King SC DCJ

File Number(s):

2009/42910

Judgment

WHEALY JA : I agree with Hislop J.

HISLOP J :

Introduction

The applicant was charged with 13 counts of using a false instrument with intent contrary to s 300(2) of the Crimes Act 1900 and seven counts of obtaining money by deception contrary to s 178BA(1) of the Crimes Act 1900. The maximum penalty for each of the s 300(2) offences is ten years imprisonment. The maximum penalty for each of the s 178BA(1) offences is five years imprisonment. No standard non parole period is applicable to either offence.

The applicant pleaded guilty to all charges. He received an effective sentence of five years four months imprisonment with a balance of term of two years.

In sentencing the applicant, 11 offences under s 178BA(1) and 16 offences under s 300(2) were taken into account on four Form 1 documents.

The relevant facts were the subject of written agreement. As his Honour stated in his remarks on sentence:

"The offences in general involved using false instruments to open false accounts or to transfer funds from the accounts of others to false accounts or to withdraw cash from the accounts of others."

The applicant has sought leave to appeal against sentence. The grounds of appeal are:

"1. His Honour erred in finding as a fact that the total amount of cash withdrawn by the offender was $373,430.00.

2. His Honour erred in the manner he took into account the applicant's participation in the methadone program when assessing his prospects for rehabilitation.

3. His Honour erred by taking into account the fact the applicant had not provided his version of events to the authorities before giving evidence on sentence.

4. The overall sentence is manifestly excessive."

Background

The applicant was born in England in 1969. His parents separated when he was three or four years of age. He commenced using alcohol at eight and cocaine and heroin at 14. His education was uneventful until year 8 when he commenced…

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 Rooke v The Queen

Details

AGLC: Rooke v The Queen [2011] NSWCCA 280
Case: [2011] NSWCCA 280
Decision Date: 16 December 2011

CaseChat Overview and Summary

Julien Peter Rooke appealed against his sentence following his conviction of multiple counts of using a false instrument with intent and obtaining money by deception. The primary judge, King SC DCJ, imposed an effective sentence of five years and four months imprisonment with a non-parole period of two years. The applicant raised four grounds of appeal, challenging the factual findings, the consideration of the methadone program, the failure to accept his version of events, and the overall sentence being manifestly excessive. The Court of Criminal Appeal found that the sentence was within the permissible range and dismissed the appeal.

The Court of Criminal Appeal held that even if the alleged factual errors were established, they would not warrant a lesser sentence in law. Regarding the methadone program, the Court held that the primary judge was entitled to conclude that the applicant's prospects for rehabilitation were not good. The Court also found that the primary judge was entitled to decline to accept the applicant's version of events as it was first presented at the sentencing hearing. Finally, the Court held that the sentence imposed was within the range that was reasonably open to the primary judge, taking into account the specific circumstances of the case and relevant precedents.

Orders