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Rose v The King

Rose v The King

Case [2024] VSCA 296 3 December 2024

Appeal

Aggravated & Exemplary Damages

Sentencing

Recklessly causing injury

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0101

JUSTIN ROSE	Applicant
v
THE KING	Respondent

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JUDGES:	WALKER and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2024
DATE OF JUDGMENT:	3 December 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 296
JUDGMENT APPEALED FROM:	DPP v Rose [2024] VCC 668 (Judge Marich)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Recklessly causing injury –Total effective sentence 2 years’ imprisonment – 12 month non-parole period – Applicant’s co-accused to aggravated burglary received 70-day imprisonment and 2-year CCO – Whether applicant’s sentence infringed parity principle – Whether sentence was manifestly excessive – Objectively similar gravity and moral culpability for both co-offenders – Similar circumstances for both co-offenders – Sentence disparity was manifestly excessive – Leave to appeal granted – Appeal allowed – Applicant resentenced to total effective sentence of 15 months’ imprisonment – 9 month non-parole period.

Crimes Act 1958, ss 18, 77; Control of Weapons Act 1990, s 5AA.

Galea v The Queen [2020] VSCA 69; Green v The Queen (2011) 244 CLR 462; Grey v The King [2024] VSCA 75; Hafner v The Queen [2012] VSCA 190; O’Loughlan v The Queen [2010] VSCA 175; Postiglione v The Queen (1997) 189 CLR 295, considered.

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Counsel
Applicant:		Mr SJ Tovey
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	Melasecca Kelly & Zayler
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA
T FORREST JA:

On 13 May 2024 in the County Court at Melbourne, the applicant, Justin Rose, was sentenced to terms of imprisonment on one charge of aggravated burglary, one charge of recklessly causing injury, and one charge of possessing a prohibited weapon without exemption or approval (a related summary offence).
On the same day and in the same Court, the co-offender, Raylene Lagerwey, was sentenced on a charge of aggravated burglary to a composite sentence of a short-term imprisonment together with a 2-year Community Correction Order (‘CCO’). Ms Lagerwey is the applicant’s mother.
The details of the sentences imposed are as follows:
(a)Justin Rose

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary[1]	25 years’ imprisonment	21 months’ imprisonment	Base
2	Causing injury recklessly[2]	5 years’ imprisonment	9 months’ imprisonment	3 months
3	Possess prohibited weapon without exemption or approval[3]	2 years’ imprisonment or 240 penalty units	1 month imprisonment	-
Total Effective Sentence:		2 years’ imprisonment
Non-Parole Period:		12 months
Pre-sentence Detention Declared:		50 days
Section 6AAA Statement:		Total Effective Sentence 3 years’ imprisonment
Other Relevant Orders: Nil

[1]Contrary to s 77 of the Crimes Act 1958.

[2]Contrary to s 18 of the Crimes Act 1958.

[3]Contrary to s 5AA of the Control of Weapons Act 1990.

(b)Raylene Lagerwey

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary[4]	25 years’ imprisonment	70 days’ imprisonment with a CCO of 2 years	-
Total Effective Sentence:		70 days’ imprisonment with a 2-year CCO
Non-Parole Period:		n/a
Pre-sentence Detention Declared:		70 days

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 The King

Details

AGLC: Rose v The King [2024] VSCA 296
Case: [2024] VSCA 296
Decision Date: 3 December 2024

CaseChat Overview and Summary

The applicant, Rose, appealed against their sentence for aggravated burglary and recklessly causing injury. The Court of Appeal considered whether the original sentence imposed was manifestly excessive and whether it infringed the parity principle when compared to the sentence of the co-accused. The original sentence was a total effective sentence of two years’ imprisonment, with a non-parole period of 12 months. The co-accused had received a sentence of 70 days’ imprisonment and a two-year community corrections order. The Court of Appeal examined the objective gravity and moral culpability of both offenders, as well as the circumstances of the offence. The Court determined that the disparity in the sentences was manifestly excessive, and the original sentence imposed on the applicant was not commensurate with the offence committed. The appeal was allowed, and the applicant was resentenced to a total effective sentence of 15 months’ imprisonment, with a non-parole period of nine months.

The primary legal issues for the Court of Appeal to decide were whether the applicant's sentence was manifestly excessive and whether it infringed the parity principle when compared to the co-accused. The Court of Appeal considered the objective gravity and moral culpability of both offenders, as well as the circumstances of the offence. The Court also took into account the relevant sentencing principles and authorities, including Galea v The Queen, Green v The Queen, Grey v The King, Hafner v The Queen, O’Loughlan v The Queen, and Postiglione v The Queen. The Court of Appeal found that the original sentence imposed on the applicant was manifestly excessive and did not comply with the parity principle. The Court further determined that the objective gravity and moral culpability of both offenders were similar, as were the circumstances of the offence. The Court of Appeal concluded that the disparity in the sentences was manifestly excessive and that the original sentence imposed on the applicant was not commensurate with the offence committed.

The Court of Appeal allowed the appeal and resentenced the applicant to a total effective sentence of 15 months’ imprisonment, with a non-parole period of nine months. The Court considered that the new sentence was proportionate to the objective gravity and moral culpability of the offence, and was commensurate with the sentence imposed on the co-accused. The Court of Appeal also noted that the new sentence took into account the relevant sentencing principles and authorities, and was consistent with the sentencing practices of the Court. The Court of Appeal further determined that the new sentence was not manifestly excessive and did not infringe the parity principle. The Court of Appeal allowed the appeal and made the following orders: (1) The applicant's appeal against sentence is allowed; (2) The applicant is resentenced to a total effective sentence of 15 months’ imprisonment, with a non-parole period of nine months.

Orders