Citation: Regina v Rose [1999] NSWCCA 327
Court: Court of Criminal Appeal, New South Wales
Date: 11 October 1999
Judge(s): Sully J, Hidden J, Greg James J
Background
The appellant had pleaded guilty to five murders, described by the sentencing judge as gangland killings, crimes of revenge, and opportunistic violence. By his own admissions over a period of ten or more years, the appellant had engaged in a continuous course of serious criminal conduct, of which these five murders formed the centrepiece. The trial judge, Levine J in the Supreme Court, imposed five concurrent life sentences under s 19A of the Crimes Act 1900.
At sentencing, the appellant's counsel conceded that the totality of the criminality was capable of placing the offences within the worst case category. The trial judge made independent findings to that effect and proceeded accordingly. The appellant then sought to have his sentences reduced on the basis of co-operation with authorities, which had included admissions about his own crimes, the inculpation of associates, and disclosure of a corrupt police officer.
The trial judge declined to apply a discount under s 442B of the Crimes Act, concluding that any reduction sufficient to avoid the practical effect of a life sentence would be unduly disproportionate to the gravity of the five murders. The appellant sought leave to appeal to the Court of Criminal Appeal, arguing the sentencing discretion had miscarried.
Legal Issues
- Whether the trial judge erred in categorising the five murders as falling within the worst case category warranting life imprisonment under s 19A of the Crimes Act 1900
- Whether the trial judge erred by failing to grant a discount for the appellant's co-operation with authorities under s 442B of the Crimes Act
- Whether the trial judge failed to consider the possibility of a determinate sentence that would allow for some prospect of future release
- Whether the two-stage sentencing process adopted by the trial judge (assessing objective seriousness first, then subjective factors) constituted a legal error
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the appeal unanimously, finding no error in the exercise of the sentencing discretion.
On the worst case categorisation, the court found the trial judge's conclusion was unassailable. Greg James J observed that the objective features of the five murders were horrific and that the appellant's admissions revealed over a decade of serious criminal conduct. The court was satisfied that, examined individually and in totality, the murders warranted the imposition of natural life sentences.
On the question of co-operation, the court upheld the trial judge's refusal to apply a discount under s 442B. The critical finding was that any reduction sufficient to allow release at some point in the appellant's lifetime would produce a sentence unreasonably disproportionate to the nature and circumstances of the murders. The appellant showed no contrition or remorse, and the co-operation he offered related to crimes he had himself committed. Greg James J agreed with this conclusion directly.
The court acknowledged a potential procedural concern: the trial judge had adopted a two-stage process (assessing objective seriousness, then asking whether subjective matters could bring the case back below the life sentence threshold), whereas the High Court in AB v The Queen had indicated a single-stage balancing exercise was preferable. However, the court found that because the trial judge had in substance considered all relevant matters, no appealable error arose from the approach taken. Hidden J agreed, though only after anxious consideration, noting that life imprisonment under s 19A is an extremely blunt instrument and expressing the view that very long determinate sentences with substantial minimum terms may be more appropriate in some serious murder cases. His Honour was ultimately not persuaded that error had occurred in this particular case.
Orders Made
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- Under s 19A of the Crimes Act 1900 (as it stood at the relevant time), a person convicted of murder was liable to penal servitude for the term of their natural life, with no statutory power for the court to specify a minimum term alongside that sentence.
- A co-operation discount under s 442B of the Crimes Act is not available where granting it would produce a sentence unreasonably disproportionate to the objective gravity of the offending, even where the co-operation has practical utility for authorities.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the total criminality of multiple murders may be assessed together when determining whether offences fall within the worst case category warranting a natural life sentence.
- Although the trial judge adopted a two-stage process rather than a single balancing exercise, the Court found no appealable error where the judge had, in substance, considered all relevant sentencing factors in reaching the final result.
- Hidden J expressly noted the concern that life imprisonment under s 19A operates without the flexibility of a minimum term, and observed that a very long determinate sentence with a substantial non-parole period might better serve the interests of justice in some serious murder cases, though that observation did not affect the outcome here.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1) and (3)
- Crimes Act 1900 (NSW), ss 19A, 442, 442B
- Sentencing Act 1989 (NSW)
Cases:
- House v The King (1936) 55 CLR 499
- AB v The Queen (High Court, unreported, 9 September 1999)
- Regina v Garforth (Court of Criminal Appeal, unreported, 23 May 1991)