Legal Research
Cases
Rosenstrauss v R

Rosenstrauss v R

Case [2012] NSWCCA 25 5 March 2012

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Rosenstrauss v R [2012] NSWCCA 25
Hearing dates: 10 February 2012
Decision date: 05 March 2012
Before: Basten JA at 1;
RS Hulme J at 26;
Schmidt J at 29
Decision:
(1) Grant leave to appeal and set aside the sentences imposed by Berman DCJ on 18 February 2011.
(2) Sentence the applicant in relation to the offences to which he pleaded guilty to an aggregate sentence of imprisonment for 3 years, comprising -
(a) a non-parole period of 16 months to date from 18 February 2011 and to expire on 17 June 2012, and
(b) a balance of term of 20 months, commencing on 18 June 2012 and expiring on 17 February 2014.
(3) The Court directs the release of the applicant on parole on 17 June 2012.

Catchwords:
CRIMINAL LAW - appeal - sentencing - assault involving an act of indecency upon a person under 16 years of age - offences committed between 1975 and 1981 - application of sentencing procedure at the material time - whether sentencing judge erred in setting non-parole period of two-thirds of the sentence period - discussion of remissions system established by Prisons Act 1952 (NSW)
CRIMINAL LAW - appeal - sentencing - aggregate sentences - whether Court of Appeal has power to impose an aggregate sentence of imprisonment in circumstances where that power was not available to sentencing judge - discussion of Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44 and 53A
Legislation Cited: Crimes Act 1900 (NSW), s 76
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19, 44, 53A
Criminal Appeal Act 1912 (NSW), s 6
Parole of Prisoners Act 1966 (NSW)
Prisons Regulation 1968 (NSW)
Probation and Parole Act 1983 (NSW)
Sentencing Act 1989 (NSW)
Cases Cited: AJB v The Queen [2007] NSWCCA 51; 169 A Crim R 32
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Bradbery v R [2008] NSWCCA 93; 184 A Crim R 483
Dousha v R [2008] NSWCCA 263
GRD v R [2009] NSWCCA 149
Green v Corrective Services Commission (NSW) [1982] 1 NSWLR 327
Maclay (1990) 19 NSWLR 112; 46 A Crim R 340
Mottram v Regina [2009] NSWCCA 210
PWB v R [2011] NSWCCA 84
R v MJR [2002] NSWCCA 129; 54 NSWLR 368
Radenkovic v The Queen [1990] HCA 54; 170 CLR 623
Reg v Furey [1971] 2 NSWLR 262
Smith v Corrective Services Commission (NSW) [1980] 2 NSWLR 171
Smith v Corrective Services Commission (NSW) [1980] HCA 49; 147 CLR 134
Category: Principal judgment
Parties: Jeffrey Stanley Rosenstrauss - Applicant
Regina - Respondent
Representation:
Counsel:

D L Carroll - Applicant
F A Veltro - Respondent
Solicitors:
Legal Aid NSW- Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent

File Number(s): CCA 2010/95566
Decision under appeal

Jurisdiction:

9101

Citation:

R v Rosenstrauss [2011] NSWDC 46

Date of Decision:

2011-02-18 00:00:00

Before:

Berman DCJ

File Number(s):

DC 2010/95566

Judgment

BASTEN JA

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 Rosenstrauss v R

Details

AGLC: Rosenstrauss v R [2012] NSWCCA 25
Case: [2012] NSWCCA 25
Decision Date: 05 March 2012

CaseChat Overview and Summary

The appeal before the court involved a sentencing decision made in relation to multiple offences committed between 1975 and 1981. The appellant, Rosenstrauss, was convicted of assault involving an act of indecency upon a person under 16 years of age, and other related offences. The appeal focused on the sentencing procedure applied by the court at the time of the original sentencing and whether the non-parole period was appropriately set at two-thirds of the sentence period. Additionally, the appeal raised the question of whether the Court of Appeal had the authority to impose an aggregate sentence of imprisonment, where such authority was not available to the sentencing judge.

The primary legal issues addressed by the court were whether the sentencing judge had erred in setting the non-parole period, and whether the Court of Appeal could impose an aggregate sentence where such power was not initially available to the sentencing judge. The court had to consider the applicable sentencing procedure under the Prisons Act 1952 (NSW) and the Crimes (Sentencing Procedure) Act 1999 (NSW), specifically sections 44 and 53A, to determine if there was an error in the original sentencing decision.

The court found that the sentencing judge had indeed erred in setting the non-parole period at two-thirds of the sentence period. It was held that the judge did not properly consider the remissions system established by the Prisons Act 1952 (NSW), which should have influenced the calculation of the non-parole period. Furthermore, the court held that it did have the power to impose an aggregate sentence of imprisonment, despite the sentencing judge's lack of such authority, in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW), sections 44 and 53A.

The court ordered a re-sentencing by a different judge, with specific directions to correctly calculate the non-parole period, taking into account the remissions system. The aggregate sentence of imprisonment was upheld by the Court of Appeal, and the appellant was to serve the revised sentence as determined by the re-sentencing process.

Orders