Rosenstrauss v R [2012] NSWCCA 25

Rosenstrauss v R [2012] NSWCCA 25

The sentencing judge erred because a non-parole period of two-thirds of the overall sentence did not accord with sentencing practice at the time of the offending, when a non-parole period would generally have been between one-third and one-half of the sentence period. Once the overall sentence period was accepted, the Court was required to intervene and could impose an aggregate sentence under the sentencing powers available at the time of re-sentencing.

Jurisdiction
Australia
Judgment Date
05 March 2012
Procedural Posture
Criminal Sentencing Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; sentences set aside; applicant re-sentenced to an aggregate sentence of imprisonment for 3 years with a non-parole period of 16 months and release on parole directed.
Legal Topics
['sentencing' 'sexual Offences' 'non Parole Period' 'remissions' 'aggregate Sentences']
['criminal Law'] ['sentencing' 'sexual Offences' 'non Parole Period' 'remissions' 'aggregate Sentences']

Case Brief

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Procedural Posture

Criminal Sentencing Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by fixing a non-parole period of two-thirds of the overall sentence for offences committed between 1975 and 1981.' 'Whether the Court of Criminal Appeal should intervene under s 6(3) of the Criminal Appeal Act 1912 (NSW).' 'Whether the Court of Criminal Appeal had power to impose an aggregate sentence of imprisonment where that power was not available to the sentencing judge.']

Ratio Decidendi

The sentencing judge erred because a non-parole period of two-thirds of the overall sentence did not accord with sentencing practice at the time of the offending, when a non-parole period would generally have been between one-third and one-half of the sentence period. Once the overall sentence period was accepted, the Court was required to intervene and could impose an aggregate sentence under the sentencing powers available at the time of re-sentencing.

Court Disposition

Leave to appeal granted; sentences set aside; applicant re-sentenced to an aggregate sentence of imprisonment for 3 years with a non-parole period of 16 months and release on parole directed.

Orders

  • ['Grant leave to appeal and set aside the sentences imposed by Berman DCJ on 18 February 2011.' 'Sentence the applicant in relation to the offences to which he pleaded guilty to an aggregate sentence of imprisonment for 3 years, comprising a non-parole period of 16 months to date from 18 February 2011 and to expire...