Rose v The Queen - [2000] WASCA 238

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: ROSE -v- THE QUEEN [2000] WASCA 238

CORAM: IPP J
WALLWORK J
MILLER J

HEARD: 16 AUGUST 2000

DELIVERED : 16 AUGUST 2000

FILE NO/S: CCA 116 of 2000

BETWEEN: EUGENE ROSE
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentence appeal - Applicant pleaded guilty to one count of burglary and one count of supplying heroin - Sentences of 18 months' and 2 years' imprisonment imposed, to be served cumulatively - Whether sentence for supplying heroin was manifestly excessive - Whether totality principle correctly applied - Turns on own facts

Legislation:

Sentencing Act, s 32

Result:

Application dismissed

Representation:

Counsel:

Applicant: Mr D McKenna
Respondent: Mr R E Cock QC & Ms J A Girdham

Solicitors:

Applicant: Director of Legal Aid
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Bryer v The Queen, unreported; CCA SCt of WA; Library No 5678; 19 December 1984
Donatelli v R, unreported; SCt of WA; Library No 980505; 3 September 1988
Jarvis v R (1993) 20 WAR 201
Knezevich v R, unreported; CCA SCt of WA; Library No 7661; 18 May 1989
Korculanic v R, unreported; CCA SCt of WA; Library No 980437; 16 July 1998
Mill v R (1988) 166 CLR 59
Miller (1989) 44 A Crim R 185
Nguyen v R; Tran v The Queen [1999] WASCA 54
Pearce v R (1998) 194 CLR 610
Piesse v The Queen, unreported; CCA SCt of WA; Library No 7606; 14 April 1989
R v Akers; R v Rodan; R v McMillan, unreported; CCA SCt of WA; Library No 920080; 11 February 1992
R v Grein [1989] WAR 178
R v Ruich [2000] WASCA 84
R v Tait (1979) 46 FLR 386
Simion v R, unreported; CCA SCt of WA; Library No 970738; 23 December 1997
Tadic v The Queen (1991) 56 A Crim R 332
Troy v R, unreported; CCA SCt of WA; Library No 980068; 13 February 1998
Wallace v R (1993) 63 A Crim R 362

IPP J: This is an application for leave to appeal against sentence. The applicant was convicted on his own pleas of guilty to one count of burglary and one count of supplying heroin. The learned sentencing Judge was also required to sentence the applicant under s 32 of the Sentencing Act on one count of possessing heroin, one count of receiving and one count of fraud. The applicant entered pleas of guilty to each of these offences.
The learned sentencing Judge sentenced the applicant to 18 months' imprisonment on the count of burglary, 2 years' imprisonment in respect of the count of supplying heroin, 1 years' imprisonment on the count of possession of heroin, 3 months' imprisonment on the count of receiving and 6 months' imprisonment on the count of fraud. His Honour ordered that the sentences of 18 months' imprisonment for the burglary offence and 2…

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 [2000] WASCA 238
Case: [2000] WASCA 238
Decision Date: 16 AUGUST 2000

CaseChat Overview and Summary

The appellant, Rose, appealed against the sentence imposed by the Supreme Court of Victoria. He had pleaded guilty to one count of burglary and one count of supplying heroin. The trial judge imposed a sentence of 18 months' imprisonment for the burglary and 2 years' imprisonment for the supply of heroin, to be served cumulatively. The appellant contended that the sentence for the heroin supply was manifestly excessive and that the totality principle was not correctly applied.

The central legal issues before the court were whether the sentence for supplying heroin was manifestly excessive and whether the trial judge had properly applied the totality principle. The appellant argued that the sentence was disproportionately high and did not reflect the appropriate balance between the seriousness of the offence and the need for deterrence and rehabilitation. Furthermore, he contended that the trial judge did not adequately consider the cumulative impact of the sentences imposed.

The court examined the principles governing sentencing, including the need to consider the totality of the sentences imposed, the objectives of sentencing, and the appropriate range of penalties for the offences. The court noted that the trial judge had considered the totality of the sentences and the appellant's offending history, but found that the sentence for the heroin supply was not manifestly excessive. The court held that the trial judge had correctly applied the totality principle and that the sentence reflected a proper balance between the various sentencing considerations. The appeal was dismissed.

The court affirmed the sentence imposed by the trial judge and dismissed the appeal. The appellant was required to serve the 3 years' imprisonment imposed by the trial judge.

Orders