Rose v R

Case [2013] NSWCCA 71 9 April 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Matthew Rose v R [2013] NSWCCA 71
Hearing dates: 13 March 2013
Decision date: 09 April 2013
Before: Hoeben CJ at CL at [1]
Slattery J at [2]
Bellew J at [3]
Decision:
1.Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - assault with intent to rob in company and robbery in company - whether sentencing judge applied the relevant guideline - necessity to have regard to the fact that sentencing judgment delivered ex-tempore immediately following submissions - where factual errors on the part of the sentencing judge were not material - no error in application of guideline - whether applicant had justifiable sense of grievance in light of different non-parole period imposed upon co-offender - differentiating factors present - no breach of parity principle - leave to appeal granted and appeal dismissed
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: Gill v R [2010] NSWCCA 236
Gommesen v R [2012] NSWCCA 226
Green v R (2011) 244 CLR 462
R v Henry (1999) 46 NSWLR 346
R v Kelly [2010] NSWCCA 259
R v Thomson and Houlton (2000) 49 NSWLR 383
Tatana v Regina [2006] NSWCCA 398 Warner (aka Jeremy Pachenko) v R [2013] NSWCCA 10
Category: Principal judgment
Parties: Matthew Rose - Applicant
Regina - Respondent
Representation: Mr D Barrow (Applicant)
Ms S Dowling (Respondent)
Blair Criminal Lawyers (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/102169 2011/210504
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-04-05 00:00:00

Before:

Neilson DCJ

Judgment

HOEBEN CJ AT CL: I agree with Bellew J and the orders which he proposes.

SLATTERY J:I agree with Bellew J.

BELLEW J: The applicant pleaded guilty before the District Court to two offences contrary to s. 97(1) of the Crimes Act 1900, namely:

(i) assault with intent to rob in company ("the first offence"); and

(ii) robbery in company ("the second offence").

In addition, the applicant asked the sentencing judge to take into account an offence of larceny contrary to s. 117 of the Crimes Act, which was contained on a Form 1.

In respect of the first offence, the applicant was sentenced to a non-parole of 2 years commencing on 29 March 2011 and expiring on 28 March 2013, with an additional term of 1 year and 4 months expiring on 28 July 2014.

In respect of the second offence, the applicant was sentenced to a non-parole period of 2 years commencing on 29 June 2011 (i.e. 3 months after the commencement of the non-parole period in respect of the first offence) and expiring on 28 June 2013, with an additional term of 1 year and 4 months imprisonment expiring on 28 October 2014.

The total non-parole period was 2 years and 3 months. The applicant is eligible for release on parole on 28 June…

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 Rose v R

Details

AGLC: Rose v R [2013] NSWCCA 71
Case: [2013] NSWCCA 71
Decision Date: 09 April 2013

CaseChat Overview and Summary

In the case of Rose v R, the applicant, Rose, sought leave to appeal against the sentence imposed for his involvement in an assault with intent to rob and robbery in company. The sentencing judge had delivered the judgment immediately following submissions and ex-tempore. The appeal focused on whether the sentencing judge had correctly applied the relevant guideline and whether there was a breach of the parity principle, given that a different non-parole period was imposed on a co-offender. The High Court of Australia was tasked with determining these issues.

The primary legal issues in the appeal were whether the sentencing judge had correctly applied the guideline and if there was a breach of the parity principle. The court had to consider whether any factual errors made by the sentencing judge were material and if the application of the guideline was erroneous. Additionally, the court examined whether the applicant had a justifiable sense of grievance due to the different non-parole periods imposed on him and his co-offender, and if so, whether this amounted to a breach of the parity principle.

The court held that any factual errors made by the sentencing judge were not material to the outcome of the sentencing. The sentencing judge had applied the relevant guideline correctly, and there was no error in this regard. The court further determined that the applicant did not have a justifiable sense of grievance despite the differing non-parole periods imposed on him and his co-offender. The differentiating factors present in the cases justified the variance in sentences, and therefore, there was no breach of the parity principle. Given these findings, the court granted leave to appeal but dismissed the appeal on the merits.

The court's final orders were to grant leave to appeal and dismiss the appeal on the merits. The court found no error in the sentencing process and determined that the sentencing judge had correctly applied the guideline. The differing non-parole periods were justified by the differentiating factors in the cases, thus upholding the principle of parity.

Orders