Rosewarne, G.M. v The Queen

[1985] FCA 659

NB : NOT APPROPRIATE FOR REPORTING OR FOR GENERAL CIRCULATION

CATCHWORDS

Criminal law - appeal against sentence - breaking and

entering - stealing - whether sentence excessive	-
relationship of appellant with family

Taylor v The Oueen (No. ACT G.9 of 1984, unreported, delivered 8 June 1984)

Re Haves (1984) l1 A Crim R 187

- B : GEOFT’REY MICHAEL ROSEMAFAE

Appellant

AND THE OUEEN

Respondent

No. ACT G.47 of 1985

CORAM Davies, Neaves, Wilcox JJ

28 October 1985

Canberra

IN THE FEDERAL COURT OF AUSTRALIA )

)

AUSTRALIAN CAPITAL TERRITORY	)
DISTRICT REGISTRY	) No. ACT G.47 of 1985
GENERAL DIVISION	)

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BE!IMEEX : GEOFFREY MICHAEL ROSEWARNE

Appellant

AND THE 0 -

Respondent

MINUTE OF ORDER

JUDGES MAKING ORDER	Davies, Neaves, Wilcox	JJ
DATE OF ORDER	28 October 1985
WHERE MADE	Canberra

THE COURT ORDERS THAT : The appeal be dismissed.

Note : Settlement and entry of orders is dealt with in Order	36
of the Federal Court Rules.

IN THE FEDERAL- COURT OF AUSTRALIA )

)

AUSTRALIAN CAPITAL TERRITORY	)
DISTRICT REGISTRY	) No. ACT G.47 of 1985
)
GENERAL DIVISION	)

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BEl3EF.N : GEOFFREY MICHAEL ROSEWARNE

Appellant

AND THE OUEEN

Respondent

REASONS FOR JUDGMENT

(ex tempore)

CORAM	Davies,	Neaves,	Wilcox	JJ
28 October 1985

DAVIES J : The Court is now in a position to express its view.

I will first state my own view. The principles to be applied on

sentencing and the principles to be applied by an appellate court

on appeal against sentence were stated by Mr Justice Xelly, Mr

Justice Neaves and myself in Tavlor v The Oueen (No. ACT G.9 of

1984, unreported, delivered 8 June 1984).	I adopt what was there
said and need not repeat it.

2 .

t '

In the present matter, the accused, Mr Geoffrey Michael

Rosewarne, was sentenced on two counts, one for breaking and

entering, the other for stealing, both counts arising out f the

one event when he entered the home of a person who lived next to

his sister and stole from the premises a number of items

including some audio cassette tapes, to a total value of

approximately $300. The learned trial Judge sentenced Mr

Rosewarne on each count to 18 months' imprisonment with a

non-parole period of 8 months. The terms were concurrent.

The first ground of appeal, or at least the first matter

put forward by Mr J.A. Gillies, who appeared for Mr Rosewarne on

the appeal, was that the sentences were so extreme as to manifest

an error. In my opinion, they did not do so . The offences were

serious offences. The maximum penalty for offences of this type

is 14 years and the seriousness of the offence was recently

commented upon in Re Haves, (1984) 11 A Crim R 187. The offences

were serious, first because of the view that Parliament takes of

them, secondly, because they are very prevalent offences in the

Territory and, thirdly, because being offences involving the

entry into a person's home, they involved a serious invasion of

privacy which did not, in the present case, have any effect so

far as we know upon the person whose home was invaded, but can

have a quite detrimental effect upon the home owner.

In my opinion, there is nothing in the grounds 2 and 3 put

forward by Mr Gillies which supports the view that the penalty

imposed did not properly reflect the gravity of the offences.

3 .

The serious question in the appeal, therefore, is whether

any error was shown in the exercise of the discretion whlch was reposed upon the learned trial Judge to take into account all the particular circumstances affecting Mr Rosewarne and particularly

matters related to his rehabilitation.

It was a difficult task which the learned trial Judge had

to undertake. Mr Rosewarne had only one prior conviction and

that was for possessing cannabis for the purpose of trafficking,

an offence for which he had been sentenced to a pecuniary

penalty. The learned trial Judge properly said :

“One must be very loath to send a young man like

this to serve a prison sentence. ...‘I.

But Mr Rosewarne was a person of 24 who had left school many

years before and had had long periods of unemployment. He had

resigned from two positions which he had held and had done	so
apparently principally because of boredom. Mr Rosewarne had

lived for many years on unemployment benefits and was residing	at
the time of the offences in a stolen motor vehicle. He was

estranged from his parents. Subsequent to the offences, he had

made no serious attempt to obtain employment and no serious

attempt to improve his lifestyle, save that he had obtained

accommodation at Ainslie Village.

At the hearing, no member of Mr Rosewarne‘s family was

called to say that he or she would provide support or would help

Mr Rosewarne to establish a proper lifestyle. Mr Rosewarne	has
seven brothers and sisters. None of these was called and no

explanation was given as to their absence. Nor was any friend

. .

4

I .

3.-

called to say that Mr Rosewarne had seen the error of his ways

and would be assisted to obtain employment and to set himself on

a proper footing.

The evidence upon which the learned trial Judge was asked

to act was the evidence of Mr Rosewarne at page 16 of the

transcript, in which Mr Rosewarne said :

"I have been staying quietly at the Ainslie

Village. I have had a generally good outlook on

sort of what has been happening up there and I

have not been feeling anywhere near as depressed as I was last year. As far as matters go, I think

I am handling things pretty well at the moment and

I do not think it is likely to happen again, the

way things are going."

That was the substantial matter put forward upon which the

learned trial Judge was asked	to	impose a sentence other than
custodial.

The learned trial Judge took the view that the sentence

most likely to achieve the deterrence of Mr Rosewarne from

committing offences and the one most likely	to achieve his
rehabilitation was the imposition of a prison term. In my

oplnion, that conclusion was clearly open to him n the evidence.

The material before him that any other course was likely to

achieve a better result was extremely weak. Indeed, the report

put In by the officers connected with the Probation and Parole

Service, hardly justified any other view. At page 33 of the

appeal book, the report stated that Mr Rosewarne appeared to be

an intelligent man of unrealised ability but went on to say that

motivation seemed to be the deficient element at that time.

5.

In my view, his Honour took the view that motivation was

most likely to be achieved by the imposition of a prison sentence

and his Honour had in mind the interests of Mr Rosewarne in

imposing the sentence which he did.

The last matter upon which I need to comment is the ground

of appeal that his Honour erred as to a matter of fact. His

Honour said in his reasons for decision that Mr Rosewarne was not

in contact with any member of his family who could provide

positive assistance. Mr Gillies submitted that this finding was

wrong for there was in the probation and parole report a

statement that Mr Rosewarne had described his relationships with

his siblings positively and that he had retained close contact

with his siblings. I doubt that his Honour's finding was

incorrect. The material against it is only the report as to what

Mr Rosewarne had said to the probation and parole officer, there

was no reference in Mr Rosewarne's evidence to his relationships

with his brothers and sisters and none of these was called to

give evidence for him. But even if there were an error of fact

due to some matter which was not brought out in the evidence, it

would not, in my opinion, affect his Honour's decision in any

material respect. I do not mean that his Honour may not have

come to a different view had he been satisfied that there was a

brother or sister who was prepared to provlde support to Mr

Rosewarne and who had confidence that Mr Rosewarne would reform,

but if there were such	a	member of the siblings, that member	did
not come forward.

In these circumstances, I come to the conclusion that no

6.

- _

7

-,S	I .
IN THE FEDERAL COURT OF AUSTRALIA )

)

AUSTRALIAN CAPITAL TERRITORY )

REGISTRY	DISTRICT	)	No. ACT G.47 of	1985
)
GENERAL DIVISION	)

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BETWEFN : GEOFFREY MICHAEL ROSEWARNE

Appellant

m THE OUEEN

Respondent

REASONS FOR JUDGMENT

(ex tempore)

CORAM Davies, Neaves, Wilcox JJ

28 October 1985

NEAVES J : I agree with what has fallen from the presiding

judge. I do not wish to add anything to what he has said. The

appeal should, in my opinion, be dismissed.

I certtf., that thls e d i k

pages- G& a true copy of :he

reosons for pdgment herem of The Honour-

able Mr Justice N?=.uo-<

&.. .l . 8.

IN THE FEDERAL COURT OF AUSTRALIA 1

)

AUSTRALIAN CAPITAL TERRITORY	1
DISTRICT FEGISTRY	) No. ACT G.47 of 1985
GENERAL DIVISION	1

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BE?WEEN : GEOFTREY MICHAEL ROSEWARNE

Appellant

THE OUEEN

Respondent

REASONS FOR JUDGMENT

(ex tempore)

CORAM	Davies, Neaves, Wilcox	JJ
28 October 1985

WILCOX J : I also agree with what has been said and am of the

view that the appeal should be dismissed.

l certify that thls eR$-tke

I3

pages. we a true copy ot T I E

reasons for pdgrnent herein of The Honour-

able Mr. Justice b ’ t /:CA