AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 5 March 2012

Rosenstrauss v R

[2012] NSWCCA 25

Sexual offences
CRIMINAL LAW APPEAL SENTENCING PAROLE PERIOD OF TWO THIRDS OF THE SENTENCE PERIOD APPEAL

Citation: Rosenstrauss v R [2012] NSWCCA 25
Court: NSW Court of Criminal Appeal
Date: 5 March 2012
Judges: Basten JA; RS Hulme J; Schmidt J

Background

The applicant was sentenced in the District Court in February 2011 for three sexual assaults committed against a young girl between approximately 1975 and May 1981, when the complainant was aged 10 to 11. The charges were brought under s 76 of the Crimes Act 1900 (NSW), which has since been repealed, and carried a maximum penalty of six years imprisonment at the relevant time. The complainant did not report the offences until 2009.

Berman DCJ imposed an overall sentence of three years imprisonment with a non-parole period of two years, dating from the day of sentencing. The sentencing judge sought to apply sentencing practices as they operated at the time of the offences, but the applicant argued on appeal that the resulting non-parole period was inconsistent with how such periods were actually fixed during that era.

The appeal turned on the proper approach to fixing a non-parole period when sentencing for offences committed before the abolition of the remissions system under the Sentencing Act 1989 (NSW).

  • Whether the sentencing judge erred by setting a non-parole period of two-thirds of the head sentence, when sentencing practice at the time of the offending required a non-parole period of between one-third and one-half of the overall sentence.
  • How the historical remissions system under the Prisons Act 1952 (NSW) and the Prisons Regulation 1968 (NSW) affected the approach to fixing non-parole periods for offences committed in that period.
  • Whether the Court of Criminal Appeal had power to impose an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), given that power was not available to the original sentencing judge.

Decision

Non-parole period error. The Court confirmed the principle, established in R v MJR [2002] NSWCCA 129, that an offender sentenced for conduct committed years earlier is entitled to a sentence consistent with the law and practice as it stood at the time of offending, particularly where that law was more favourable. At the time of these offences, sentencing courts consistently fixed non-parole periods at between one-third and one-half of the head sentence. A non-parole period set at two-thirds of the head sentence did not accord with that practice, and the sentencing judge therefore erred.

The remissions system. Basten JA explained that the remissions system, operating under regulations rather than general executive discretion, entitled a first offender to remission of one-third of a sentence, with smaller remissions for those with prior imprisonment. Courts at the time factored anticipated remissions into the non-parole period to avoid the absurdity of a prisoner being released under remissions before the non-parole period had expired. Because a sentencing court in that era would have expected the effective custodial period to be reduced by at least one-third, the non-parole period would ordinarily have been less than half of the head sentence. The Court noted this calculation was based on sentencing law and practice, not an attempt to replicate executive decisions about individual prisoners.

Aggregate sentence. Basten JA considered whether the Court of Criminal Appeal could impose an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999, even though that power was not available to the original sentencing judge. The Court resolved this question in favour of exercising the power, finding it an appropriate tool to reflect the overall criminality of the three offences. The aggregate sentence of three years with a non-parole period of 16 months replaced the original sentences. RS Hulme J noted some reservations about the overall result but accepted that the total three-year term was within the proper exercise of the sentencing discretion, supported by comparable cases, and that the Crown had not challenged it.

Orders Made

  • Leave to appeal granted; sentences imposed by Berman DCJ on 18 February 2011 set aside.
  • Applicant resentenced to an aggregate sentence of three years imprisonment, comprising a non-parole period of 16 months from 18 February 2011 (expiring 17 June 2012) and a balance of term of 20 months (expiring 17 February 2014).
  • Applicant directed to be released on parole on 17 June 2012.

Key Takeaways

  • Where an offender is sentenced for conduct committed decades earlier, the Court of Criminal Appeal confirmed that sentencing practice as it stood at the time of the offences governs the fixing of the non-parole period, particularly where that practice was more favourable to the offender.
  • Under the remissions system in force in NSW before its abolition by the Sentencing Act 1989, a non-parole period was ordinarily fixed at between one-third and one-half of the head sentence, with courts taking anticipated remissions into account to ensure the non-parole period was not rendered meaningless.
  • A non-parole period set at two-thirds of the head sentence for offences committed in this era was inconsistent with prevailing sentencing practice and constituted an error warranting appellate intervention.
  • The Court of Criminal Appeal held it could impose an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 even in circumstances where that power was not available to the original sentencing judge at the time of the relevant conduct.
  • Replicating the sentencing law and practice of a prior era does not extend to replicating executive practices relating to the actual treatment of individual prisoners in custody.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 76 (since repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19, 44, 53A
- Criminal Appeal Act 1912 (NSW), s 6
- Prisons Act 1952 (NSW)
- Prisons Regulation 1968 (NSW)
- Parole of Prisoners Act 1966 (NSW)
- Probation and Parole Act 1983 (NSW)
- Sentencing Act 1989 (NSW)

Cases
- R v MJR [2002] NSWCCA 129; 54 NSWLR 368
- Radenkovic v The Queen [1990] HCA 54; 170 CLR 623
- AJB v The Queen [2007] NSWCCA 51; 169 A Crim R 32
- R v Maclay (1990) 19 NSWLR 112; 46 A Crim R 340
- Dousha v R [2008] NSWCCA 263
- Mottram v Regina [2009] NSWCCA 210
- PWB v R [2011] NSWCCA 84
- Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
- Bradbery v R [2008] NSWCCA 93; 184 A Crim R 483
- GRD v R [2009] NSWCCA 149
- Smith v Corrective Services Commission (NSW) [1980] 2 NSWLR 171
- Smith v Corrective Services Commission (NSW) [1980] HCA 49; 147 CLR 134
- Green v Corrective Services Commission (NSW) [1982] 1 NSWLR 327
- Reg v Furey [1971] 2 NSWLR 262