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Court of Criminal Appeal 10 July 2009

Rosenburg v R

[2009] NSWCCA 148

Assault & violence

Citation: Rosenburg v R [2009] NSWCCA 148
Court: Court of Criminal Appeal, New South Wales
Date: 10 July 2009
Judge(s): McClellan CJ at CL, James J, Simpson J

Background

The appellant was convicted in the District Court before Judge Blackmore and a jury on a charge of maliciously inflicting grievous bodily harm with intent to cause grievous bodily harm. The incident occurred on Christmas Day 2006 at a residential property in Phillip Bay, where the appellant was alleged to have struck the victim, Rodney Beale, repeatedly with a metal bar, causing a depressed fracture to the victim's left frontal sinus.

The Crown case was that the appellant brought the bar to the property and used it in a sustained attack. The defence case at trial was that the injury had actually been caused when the appellant's half-sister, intending to kick the appellant while he and the victim were both on the ground, accidentally kicked the victim instead. A related assault charge involving another person was directed to a not guilty verdict by the trial judge after the Crown's case closed.

The appellant was sentenced to a total term of five years imprisonment, comprising a non-parole period of three years and nine months with a balance of one year and three months. On appeal, the appellant represented himself, assisted in the preparation of submissions by his brother.

  • Whether the trial counsel's conduct of the defence was so deficient as to have caused a miscarriage of justice
  • Whether the jury's verdict of guilty was unreasonable or could not be supported having regard to the evidence
  • Whether, in the event the conviction appeal failed, the sentence imposed warranted appellate intervention

Decision

The Court examined each ground of appeal against conviction in turn and rejected all of them. On the question of counsel's competence, the Court considered the relevant legal principles governing when deficient representation can amount to a miscarriage of justice, and found that the conduct of trial counsel did not meet that threshold.

On the ground that the verdict was unreasonable, the Court assessed the evidence as a whole, including the testimony of the Crown witnesses and the competing account advanced by the defence. The Court concluded that the jury's verdict was not unreasonable and was capable of being supported on the evidence presented. All four grounds of appeal against conviction were dismissed.

On sentence, the Court noted that Judge Blackmore had found the offence fell below the midpoint of objective seriousness for offences under s 33 of the Crimes Act, which carries a maximum of 25 years and a standard non-parole period of seven years. The sentencing judge had identified some planning, given that the bar appeared to have been brought to the scene, but also recognised that the physical injury was less serious than in many comparable cases. The non-parole period imposed was approximately half the standard non-parole period. The Court granted leave to appeal against sentence but, notably, the appellant made no submissions in support of the sentence appeal, and the Court dismissed it.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • Incompetence of trial counsel will not automatically produce a miscarriage of justice; the conduct must reach a level of deficiency sufficient to undermine the fairness of the trial as a whole, and the Court of Criminal Appeal found that threshold was not met here.
  • In dismissing the conviction appeal, the Court confirmed that a verdict is not unreasonable merely because the defence advanced a competing factual account; the question is whether the jury's conclusion was open on the evidence.
  • Under s 33 of the Crimes Act, the standard non-parole period is seven years, but a sentencing court may depart from that benchmark where it finds the objective seriousness of the particular offence falls below the midpoint of the range.
  • Evidence of planning, such as an inference that a weapon was brought to a scene rather than obtained there, can be a relevant aggravating factor in sentencing for offences of violence, even where the overall seriousness is assessed as below mid-range.
  • A self-represented appellant who seeks leave to appeal against sentence but advances no supporting submissions gives the appellate court very limited basis on which to intervene.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 33 (maliciously inflicting grievous bodily harm with intent)
- Criminal Appeal Act (NSW)

Cases:
- Ali v The Queen (2005) 214 ALR 1
- DPP v Smith (1961) AC 290
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- Nudd v The Queen (2006) 80 ALJR 614
- Seymour v The Queen (2006) 162 A Crim R 576
- TKWJ v The Queen (2002) 212 CLR 124