R v Rosser

Citation: Rosser v R [2004] NSWCCA 216
Court: NSW Court of Criminal Appeal
Date: 1 July 2004
Judge(s): Sperling J, Hidden J, Howie J

Background

The applicant was the director of a pre-school in northern New South Wales. Over a sixteen-month period between March 1998 and July 1999, she drew cheques on the pre-school's bank account and deposited them into her own, misappropriating a total of more than $80,000.

Following a jury trial in the District Court at Coffs Harbour, the applicant was convicted on thirty-three counts of defrauding a body corporate as an officer, an offence under section 176A of the Crimes Act 1900 carrying a maximum penalty of ten years imprisonment. The sentencing judge imposed a four-year term on the principal count (count thirty-two, relating to a single cheque for $8,200), with a non-parole period of two years and three months, and fixed terms of fifteen months on each of the remaining thirty-two counts, all sentences running concurrently from the date of verdict.

The applicant sought leave to appeal against sentence. She was unrepresented initially but, on the day of hearing, was assisted by a solicitor acting on a pro-bono basis.

Legal Issues

• Whether the aggregate sentence of four years, with a non-parole period of two years and three months, was manifestly excessive given the applicant's age, prior good character, and deprived background.
• Whether the sentencing judge had impermissibly loaded all the criminality of the thirty-three counts onto the principal count in a manner that offended the principles in Pearce v The Queen.

Decision

On the question of manifest excess, the Court found no error. The sentencing judge had expressly addressed every significant aspect of the applicant's subjective case, including her deprived Aboriginal background, a history of violent relationships, the loss of three siblings in a short period, and her drug, alcohol, and gambling problems. The remarks on sentence were described by Hidden J as "humane." Nonetheless, the offences were characterised as a grave and sustained course of fraudulent conduct committed by a person in a position of trust against a vulnerable and worthwhile organisation. The Court held that retribution and deterrence required appropriate reflection in both the head sentence and the non-parole period, and that the disposition fell clearly within the sentencing judge's discretion.

On the Pearce argument, the applicant submitted that the sentencing judge appeared to have imposed a sentence on count thirty-two that already reflected the totality of the criminality across all counts, rather than the specific criminality of that count alone. The Crown responded that the judge had simply selected an appropriate sentence for the most serious count and exercised his discretion to make the remaining sentences concurrent. The Court found it unnecessary to resolve this question. Hidden J held that the appropriate inquiry under section 6(3) of the Criminal Appeal Act 1912 was whether a different aggregate sentence should have been imposed, and the Court was not persuaded that it should.

The Court therefore granted leave to appeal but dismissed the appeal.

Orders Made

• Leave to appeal granted.
• Appeal dismissed.

Key Takeaways

• In dismissing the appeal, the Court of Criminal Appeal confirmed that the proper question under section 6(3) of the Criminal Appeal Act 1912, when evaluating a sentence imposed across multiple counts, is whether the aggregate sentence should have been different, not whether the individual sentences were structured perfectly.
• Where an applicant's subjective case has been expressly and carefully addressed by the sentencing court, an appellate court will be slow to find manifest excess, even where that case includes significant mitigating factors such as deprived background, personal trauma, and addiction.
• The Court left unresolved whether the sentencing approach in this case technically offended the principles in Pearce v The Queen, finding it unnecessary to decide that question given the appropriateness of the aggregate outcome.
• A sustained course of fraudulent conduct by a person in a position of trust, committed against a vulnerable organisation, will attract sentences that appropriately reflect both retributive and deterrent purposes, notwithstanding the offender's otherwise good character.
• Where adjusting individual sentences would leave the aggregate sentence unchanged, such an adjustment is a futile exercise and appellate intervention is not warranted.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 176A
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- R v Fraser [2000] NSWCCA 97