Rosenburg v The Queen - [2016] NSWCCA 292

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Rosenburg v R [2016] NSWCCA 292
Hearing dates: 2 December 2016
Decision date: 09 December 2016
Before: Hoeben CJ at CL at [1];
R A Hulme J at [2];
Schmidt J at [74]
Decision:
1. Extend time for the filing of the Application for Leave to Appeal to 1 July 2016.
2. Grant leave to appeal against both conviction and sentence.
3. Dismiss the appeal.

Catchwords: CRIMINAL LAW – appeal against conviction – sexual intercourse without consent and indecent assault – where applicant legally unrepresented on appeal – whether applicant incompetently represented at trial – whether verdicts unreasonable or cannot be supported having regard to the evidence – where credibility and reliability of the complainant challenged at trial – overwhelming Crown case – alternative account put to the complainant was incredible – appeal dismissed
CRIMINAL LAW – appeal against sentence – where no submissions made in support of appeal – where sentencing judge carefully reviewed all relevant material – predatory offending against a vulnerable complainant – very little in subjective circumstances calling for any leniency – no specific or latent error identifiable – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW) ss 61I, 61L, 578A
Criminal Appeal Act 1912 (NSW) s 6(1)
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) rr 42, 43
Cases Cited: [Decision Restricted] [2016] NSWCCA 202
Category: Principal judgment
Parties: Joseph Stephen Rosenburg (Applicant)
Regina (Respondent)
Representation:
Counsel:
Applicant (Self-represented)
Ms V Lydiard (Crown)
Solicitors:
Solicitor for Public Prosecutions

File Number(s): 2014/79740
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

19 June 2015

Before:

Hanley SC DCJ

File Number(s):

2014/79740

Judgment

HOEBEN CJ at CL: I agree with R A Hulme J and with the additional remarks of Schmidt J.
R A HULME J: Joseph Stephen Rosenburg (“the applicant”) seeks leave to appeal against his convictions that followed a trial by jury before Hanley SC DCJ in January-February 2015.
An extension of time is required to bring the application. A Notice of Intention to Appeal was filed out of time but the Registrar granted an extension. However, the Notice of Application for Leave to Appeal was then filed after the Notice of Intention had expired some three months earlier. I will return to this issue.
The applicant was found guilty by a jury of all six counts in the indictment: three counts of sexual intercourse without consent and three of indecent assault (ss 61I and 61L respectively of the Crimes Act 1900 (NSW)).
Leave is also sought to appeal against the sentence imposed; an aggregate term of imprisonment for 11 years with a non-parole period for 8 years 3 months dating from 15 March 2014.
The applicant has pursued these applications without legal representation. He has filed extensive documentary material in which he has sought to specify his grounds of appeal against conviction and submissions in support of them. Unfortunately, the material is not only voluminous but the submissions…

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 Rosenburg v The Queen

Details

AGLC: Rosenburg v The Queen [2016] NSWCCA 292
Case: [2016] NSWCCA 292
Decision Date: 09 December 2016

CaseChat Overview and Summary

In the case of Rosenburg v The Queen, the applicant sought to appeal both his conviction and sentence, arising from charges of sexual intercourse without consent and indecent assault. The appeal was heard in the High Court of Australia, which is the final court of appeal in Australia.

The primary legal issues before the Court were whether the applicant was incompetently represented at trial and whether the verdicts were unreasonable or could not be supported by the evidence. The Court also considered whether the sentencing judge had erred in any way in imposing the sentence.

The Court found that the applicant was not incompetently represented at trial, as the trial had proceeded without any significant issues or complaints regarding the representation. The Court also found that the verdicts were reasonable and supported by the evidence, noting that the Crown had presented an overwhelming case against the applicant, and that the alternative account put to the complainant was incredible. Regarding the sentence, the Court found that the sentencing judge had carefully reviewed all relevant material and that there were no specific or latent errors in the sentence. The Court noted that the applicant had engaged in predatory offending against a vulnerable complainant, and that there was very little in the subjective circumstances calling for any leniency.

In conclusion, the appeal against both conviction and sentence was dismissed. The Court found that the verdicts were reasonable and supported by the evidence, and that the sentence was appropriate given the circumstances of the case. The Court did not identify any errors in the trial or sentencing process that would warrant a different outcome.

Orders