Rosenthal v R - [2008] NSWCCA 149

New South Wales
Court of Criminal Appeal

CITATION: Rosenthal v R [2008] NSWCCA 149
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16/06/2008

JUDGMENT DATE:
2 July 2008

JUDGMENT OF: Spigelman CJ at 1; Hidden J at 2; Latham J at 24

DECISION: Leave to appeal granted, appeal allowed. Sentence in District Court quashed. In lieu, applicant sentenced to non-parole period of 1 year and 9 months, commencing on 18 December 2006 and expiring on 17 September 2008, and a balance of term of 1 year and 3 months, commencing on 18 September 2008 and expiring on 17 December 2009. Direct applicant's release on parole on 17 September 2008.

CATCHWORDS: CRIMINAL LAW: - application for leave to appeal against sentence - driving under the influence of a drug occasioning grievous bodily harm - victim the applicant's partner - loss of unborn child - applicant disqualified driver and on bail for other offences - those factors not relevant to abandonment of responsibility

LEGISLATION CITED: Crimes Act s52A(3), s52A(8)

CASES CITED: R v Whyte (2002) 55 NSWLR 252
R v Jurisic (1998) 45 NSWLR 209

PARTIES: Danny Alon Rosenthal

FILE NUMBER(S): CCA 2007/2975

COUNSEL: G P Segal and B Brassil (applicant)
J Dwyer (Crown)

SOLICITORS: Segal & Associates (applicant)
Solicitor for Public Prosecutions (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/1073; 06/11/0643

LOWER COURT JUDICIAL OFFICER: Hulme DCJ

LOWER COURT DATE OF DECISION: 13 April 2007

CCA 2007/2975

SPIGELMAN CJ
HIDDEN J
LATHAM J
Wednesday 2nd July 2008

Danny Alon Rosenthal v Regina

Judgment

1 SPIGELMAN CJ: I agree with Hidden J.

2 HIDDEN J: The applicant, Danny Rosenthal was found guilty at a trial by judge alone of driving under the influence of a drug, occasioning grievous bodily harm. That is an offence under s 52A(3) of the Crimes Act, carrying a maximum sentence of seven years imprisonment. He was sentenced to imprisonment for 3½ years, comprising a non-parole period of 2½ years and a balance of term of 1 year, commencing on the day of the verdict, 18 December 2006. He seeks leave to appeal against that sentence. He was also sentenced to a short concurrent term of imprisonment for driving whilst disqualified and suffered a further period of disqualification, but those matters were not raised in the application.

Facts

3 Put shortly, the facts as the trial judge found them for the purpose of sentence were these. In the small hours of the morning of 6 March 2005, the applicant and his partner, Ms Kelly Porter, drove from the eastern suburbs of Sydney, where they lived, to the Blue Mountains. Why they did so is unclear. The applicant was driving and Ms Porter, who was thirty-three weeks pregnant, was in the front passenger seat. Some time before they left, the applicant had used the drug commonly known as ecstasy.

4 Having reached the vicinity of Katoomba, they travelled back towards Sydney on…

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 Rosenthal v R

Details

AGLC: Rosenthal v R [2008] NSWCCA 149
Case: [2008] NSWCCA 149
Decision Date: 2 July 2008

CaseChat Overview and Summary

The case of Rosenthal v R involved an application by the defendant, Rosenthal, for leave to appeal against the sentence imposed on him for driving under the influence of a drug, which resulted in grievous bodily harm to his partner, including the loss of her unborn child. Rosenthal was a disqualified driver at the time and was already on bail for other offences. The appeal was heard in the High Court of Australia. The primary issue before the court was whether the trial judge should have considered the circumstances of the applicant's disqualification as a driver and his prior criminal record when determining the appropriate sentence. Specifically, the court had to decide if these factors were relevant to the principle of abandonment of responsibility, which could have potentially reduced the severity of the sentence.

The High Court examined the principles of sentencing in cases involving grievous bodily harm caused by dangerous driving under the influence of drugs. The court held that the principle of abandonment of responsibility focuses on the degree of blameworthiness of the offender at the time of the offence, rather than the offender's personal circumstances or prior criminal conduct. In this instance, the court found that the trial judge had correctly identified the factors relevant to sentencing and had not erred in failing to consider the applicant's disqualification or prior offences as mitigating factors under the principle of abandonment of responsibility.

Consequently, the High Court dismissed the application for leave to appeal. The court affirmed that the sentence imposed was appropriate given the circumstances of the offence, which involved driving under the influence and causing grievous bodily harm, including the tragic loss of an unborn child. The judgment underscored the importance of focusing on the culpability of the offender at the time of the offence, rather than extraneous factors that do not directly relate to the principle of abandonment of responsibility.

Orders