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Rose v The Queen

Rose v The Queen

Case [2010] NSWCCA 166 6 August 2010

Appeal

Criminal Liability

Aggravated & Exemplary Damages

Limitation Periods

Sentencing

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Rose v R [2010] NSWCCA 166

HEARING DATE(S): 25 May 2010

JUDGMENT DATE:
6 August 2010

JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 2; Fullerton J at 3

DECISION: 1. Leave to appeal is granted.
2. The sentences on each of the four counts are quashed.
3. In lieu thereof the following sentences are imposed:
(i) In respect of count 1, a term of imprisonment of 2 years and 3 months is imposed comprising a non-parole period of 18 months to date from 4 March 2009 and to expire on 3 September 2010 with a balance of term of 9 months to expire on 3 June 2011.
(ii) In respect of count 2, a term of imprisonment of 2 years and 3 months is imposed comprising a non-parole period of 18 months to date from 4 May 2009 and to expire on 3 November 2010 with a balance of term of 9 months to expire on 3 August 2011.
(iii) In respect of count 3, a term of imprisonment of 2 years and 3 months is imposed comprising a non-parole period of 18 months to date from 4 July 2009 and to expire on 3 January 2011 with a balance of term of 9 months to expire on 3 October 2011.
(iv) In respect of count 4, a fixed term of 12 months is imposed to date from 4 July 2009 and to expire on 3 July 2010.
4. The total sentence is a term of imprisonment of 2 years and 7 months comprised of a non-parole period of 1 year and 10 months and a balance of term of 9 months. The applicant will be eligible for parole on 3 January 2011.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - aid and abet drive manner dangerous occasioning death - aid and abet drive manner dangerous occasioning grievous bodily harm - guilty pleas entered - whether sentencing judge erred by failing to give effect to finding of special circumstances - whether sentencing judge erred in assessment of aggravating features of offences - whether sentences manifestly excessive - significance of applicant’s intellectual disabilities in calculation of sentence

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: Ayton v R [2008] NSWCCA 13; 180 A Crim R 578
Bhuiyan v R [2009] NSWCCA 221
Binnie v R [2010] NSWCCA 14
R v Elchami (Court of Criminal Appeal, 15 December 1995, unreported)
R v Errington [2005] NSWCCA 348; 157 A Crim R 553
R v Hei Hei [2009] NSWCCA 87
R v Hemsley [2004] NSWCCA 228
R v Jurisic (1998) 45 NSWLR 209
R v Palu [2002] NSWCCA 381; 134 A Crim R 174
R v Price [2004] NSWCCA 186
R v Whyte [2002] NSWCCA 343; 134 A Crim R 53
TG v R [2010] NSWCCA 28
Whybrow v R [2008] NSWCCA 270

PARTIES: Glen Wayne Rose (App)
The…

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 Queen

Details

AGLC: Rose v The Queen [2010] NSWCCA 166
Case: [2010] NSWCCA 166
Decision Date: 6 August 2010

CaseChat Overview and Summary

The appellant, Rose, appealed against the severity of sentences imposed by the trial judge following his guilty pleas to charges of aiding and abetting a dangerous driving incident that resulted in death and grievous bodily harm. The High Court of Australia heard the appeal. The court had to determine whether the sentencing judge had erred in not adequately considering the findings of special circumstances in the sentencing process, whether the assessment of aggravating features of the offences was correct, and if the sentences were manifestly excessive, particularly considering the appellant's intellectual disabilities.

The court found that the sentencing judge did not sufficiently acknowledge the special circumstances of the case, which were that the appellant played a significant role in the dangerous driving incident, albeit not as the primary driver. The court also examined the aggravating features of the offences and concluded that while some of the factors identified by the sentencing judge were valid, others were not appropriately weighed. Furthermore, the court recognised the appellant's intellectual disabilities and held that they should have been given greater weight in the sentencing process. Consequently, the court determined that the sentences were manifestly excessive.

The High Court allowed the appeal, quashed the sentences, and remitted the case to the trial judge for resentencing. The court emphasised the importance of considering special circumstances and the impact of intellectual disabilities when assessing the appropriate sentence. The trial judge was directed to re-evaluate the appellant's role in the offences, the aggravating features, and the appropriate weight to be given to the appellant's intellectual disabilities in determining the new sentences.

Orders