Ross v R

Case [2016] NSWCCA 176 17 August 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Ross v R [2016] NSWCCA 176
Hearing dates: 26 July 2016
Date of orders: 17 August 2016
Decision date: 17 August 2016
Before: Hoeben CJ at CL at [1];
Hall J at [2];
Bellew J at [122]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – whether trial judge erred in assessing objective seriousness of offence – murder – victim under three years’ age – applicant in a position of trust – gross abuse of trust by a series of assaults – failure to seek medical attention that may have prevented death – whether trial judge erred in failing to give any weight to applicant’s onerous gaol conditions in protective custody including applicant’s claims as to ongoing fear of violence and hyper-vigilance – no such error established – the sentence was not manifestly excessive – objective gravity of offence properly assessed as ‘well-above the mid-range of offences of murder and approaching the worst case of murder’ – absence of subjective factors of significance
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: Ali v R [2010] NSWCCA 35
Barbaro v The Queen [2014] HCA 2; 253 CLR 58
Bugmy v R [2013] HCA 37; 249 CLR 571
Clinton v R [2009] NSWCCA 276
CMB v Attorney-General for NSW [2015] HCA 9; 317 ALR 30
Dennis v R [2009] NSWSC 1357
House v The King [1936] HCA 40; 55 CLR 499
Jarrold v R [2010] NSWCCA 69
Markarian v R [2005] HCA 25; 228 CLR 357
Mulato v R [2006] NSWCCA 282
R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581
R v Elfar [2003] NSWCCA 358
R v Hill [2014] NSWSC 1010
R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304
R v Pfitzner [2010] NSWCCA 314
R v PJS [2009] NSWSC 153
R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
RWB v R [2010] NSWCCA 147; 202 A Crim 209
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Category: Principal judgment
Parties: Warren James Ross (Applicant)
Regina (Crown)
Representation:
Counsel:
C Bruce SC (Applicant)
S Dowling SC (Crown)
Solicitors:
Jack Rigg Solicitors (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/310910
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law - Criminal

Citation:

[2014] NSWSC 707

Date of Decision:

30 May 2014

Before:

Rothman J

File Number(s):

2011/310910

Judgment

HOEBEN CJ at CL: I agree with Hall J.
HALL J: The applicant, Warren James Ross, makes application for leave to appeal in respect of a sentence of imprisonment imposed on him by Rothman J on 30 May 2014.
The applicant was charged on indictment that on or about 27 August 2011, at Watanobbi, he did murder Tanilla Opal Warrick-Deaves, the daughter of his former partner.
The applicant entered a not guilty plea.
A jury trial commenced…

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 Ross v R

Details

AGLC: Ross v R [2016] NSWCCA 176
Case: [2016] NSWCCA 176
Decision Date: 17 August 2016

CaseChat Overview and Summary

The appeal before the court was from a conviction and sentence for murder of a child under the age of three years by the applicant, who was in a position of trust. The applicant was subject to a series of assaults on the victim, which were not only repeated but also included a failure to seek medical attention which might have prevented the death of the victim. The applicant’s appeal against sentence was on the basis that the trial judge had erred in failing to give adequate weight to the onerous conditions of the applicant’s gaol in protective custody, including claims of ongoing fear of violence and hyper-vigilance.

The court was required to determine whether the trial judge had erred in assessing the objective seriousness of the offence. The court was also required to consider whether the trial judge had erred in failing to give any weight to the applicant’s onerous gaol conditions in protective custody, including claims of ongoing fear of violence and hyper-vigilance. The court considered whether the sentence was manifestly excessive, and whether the objective gravity of the offence had been properly assessed.

The court found that there was no error in the trial judge’s assessment of the objective seriousness of the offence. The court found that the objective gravity of the offence was properly assessed as being well-above the mid-range of offences of murder and approaching the worst case of murder. The court found that the absence of subjective factors of significance did not require a reduction in the sentence. The court found that the applicant’s claims of onerous gaol conditions in protective custody, including claims of ongoing fear of violence and hyper-vigilance, did not establish an error on the part of the trial judge. The court found that the sentence was not manifestly excessive.

The court dismissed the appeal against sentence.

Orders