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Rossall v R

Rossall v R

Case [2021] NSWCCA 200 25 August 2021

Appeal

Sentencing

Miscarriage of Justice

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Rossall v R [2021] NSWCCA 200
Hearing dates: 28 June 2021
Date of orders: 25 August 2021
Decision date: 25 August 2021
Before: Bathurst CJ at [1]
Rothman J at [2]
Garling J at [3]
Decision:
(1)   Grant leave to appeal.
(2)   Quash the sentence imposed in the District Court of NSW on 24 March 2020.
(3)   In lieu of that sentence, impose an aggregate term of imprisonment of 1 year and 6 months commencing 6 March 2020 and concluding 5 September 2021. Of this sentence, fix a non‑parole period of 9 months commencing 6 March 2020 and concluding on 5 December 2020.

Catchwords:
CRIME – Appeals – appeal against sentence – alleged incompetence of counsel – failure to obtain and provide the court with relevant information on the offender’s upbringing and personal circumstances – sentencing Judge proceeded on a lack of relevant information – amounted to a miscarriage of justice – appeal upheld – sentence quashed – new sentence imposed

Legislation Cited:
Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
Fisher v R [2021] NSWCA 91
John Wayne Tsiakas v R [2015] NSWCCA 187
Kelly v R [2021] NSWCCA 173
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Pym v R [2014] NSWCCA 182
Raymond John Munro v Regina [2006] NSWCCA 350

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: Adam Michael Rossall (Appellant)
The Crown
Representation:
Counsel:
M Higgins / M Keaney (Appellant)
E Balodis (Respondent)
Solicitors:
C Cullen (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/345989
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

24 March 2020

Before:

McLennan SC DCJ

File Number(s):

2018/345989

Judgment

BATHURST CJ: I agree with the orders proposed by Garling J and with his Honour’s reasons.
ROTHMAN J: I agree with the reasons of Garling J and with his Honour’s proposed orders.
GARLING J: On 24 March 2020, the applicant, Adam Michael Rossall, to whom I shall refer as the appellant, entered a plea of guilty in the District Court of NSW to two offences. The first was an offence of indecent assault contrary to s 61L of the Crimes Act 1900, which carried a maximum penalty of 5 years imprisonment. The second was an offence contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 of intimidation with intent to cause fear of physical or mental harm, which also carries a maximum penalty of 5 years imprisonment.
The appellant asked McLennan SC DCJ (“the Judge”) to take into account on a Form 1 on the second offence, an offence of common assault contrary to s 61 of the Crimes Act

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 Rossall v R

Details

AGLC: Rossall v R [2021] NSWCCA 200
Case: [2021] NSWCCA 200
Decision Date: 25 August 2021

CaseChat Overview and Summary

In the matter of Rossall v R, the appellant, Rossall, sought to appeal his conviction on the grounds of ineffective assistance of counsel during the sentencing phase. The case was heard by the High Court of Australia, which was tasked with determining whether the appellant's counsel was incompetent in failing to provide relevant information about Rossall's background and personal circumstances, which led to a sentence being passed without this information. This information, the Court held, would have provided a more comprehensive understanding of the appellant's situation, potentially leading to a more lenient sentence.

The central legal issue before the Court was whether the appellant's counsel's failure to present relevant background information constituted ineffective assistance, thereby warranting an appeal against the sentence. The Court considered whether this failure was a miscarriage of justice and if it amounted to a breach of the appellant's right to a fair trial. The appellant's legal team argued that the lack of information on his personal circumstances led to an unjust sentence, as the sentencing judge did not have a complete picture of the appellant's background.

The Court found that the appellant's counsel's failure to present the relevant information on his upbringing and personal circumstances was indeed a significant oversight that amounted to ineffective assistance. This oversight led to a miscarriage of justice, as the sentencing judge proceeded without the full context of the appellant's situation. Consequently, the Court held that the appellant's appeal against the sentence was valid, and the original sentence was quashed. The Court then imposed a new sentence, taking into account the appellant's background and personal circumstances that had been previously omitted.

Orders