NOT APPROPRIATE FOR REPORTING OR FOR GENERAL CIRCULATION CATCHWORDS Criminal law - appeal against sentence - breaking and entering - stealing ~ whether sentence excessive - relationship of appellant with family Taylor v The Queen (No. ACT G.9 of 1984, unreported, delivered 8 June 1984) Re Hayes (1984) 11 A Crim R 187 BETWEEN 3 GEOFFREY MICHAEL ROSEWARNE Appellant AND : THE QUEEN Respondent No. ACT G.47 of 1985 CORAM : Davies, Neaves, Wilcox JJ 28 October 1985 Canberra Slip? " IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION JUDGES MAKING ORDER DATE OF ORDER WHERE MADE THE COURT ORDERS THAT No. ACT G.47 of 1985 wwe we ww ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN : GEOFFREY MICHAERL ROSEWARNE Appellant AND 3 THE QUEEN Respondent MINUTE OF ORDER Davies, Neaves, Wilcox JJ 28 October 1985 Canberra The appeal be dismissed. Note : Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION No. ACT G.47 of 1985 wwe ww ww ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN 3 GEOFFREY MICHAEL ROSEWARNE Appellant AND : THE QUEEN Respondent REASONS FOR JUDGMENT (ex tempore) CORAM 3 Davies, Neaves, Wilcox JJ 28 October 1985 DAVIES J : The Court is now in a position to express its view. I will first state my own view. The principles to be applied on sentencing and the principles to be applied by an appellate court on appeal against sentence were stated by Mr Justice Kelly, Mr Justice Neaves and myself in Taylor v The Queen (No. ACT G.9 of 1984, unreported, delivered 8 June 1984). I adopt what was there said and need not repeat it. In the present matter, the accused, Mr Geoffrey Michael Rosewarne, was sentenced on two counts, one for breaking and entering, the other for stealing, both counts arising out of the one event when he entered the home of a person who lived next to his sister and stole from the premises a number of items including some audio cassette tapes, to a total value of approximately $300. The learned trial Judge sentenced Mr Rosewarne on each count to 18 months' imprisonment with a non-parole period of 8 months. The terms were concurrent. The first ground of appeal, or at least the first matter put forward by Mr J.A. Gillies, who appeared for Mr Rosewarne on the appeal, was that the sentences were so extreme as to manifest an error. In my opinion, they did not do so. The offences were serious offences. The maximum penalty for offences of this type is 14 years and the seriousness of the offence was recently commented upon in Re Hayes, (1984) 11 A Crim R 187. The offences were serious, first because of the view that Parliament takes of them, secondly, because they are very prevalent offences in the Territory and, thirdly, because being offences involving the entry into a person's home, they involved a serious invasion of privacy which did not, in the present case, have any effect so far as we know upon the person whose home was invaded, but can have a quite detrimental effect upon the home owner. In my opinion, there is nothing in the grounds 2 and 3 put forward by Mr Gillies which supports the view that the penalty imposed did not properly reflect the gravity of the offences. The serious question in the appeal, therefore, is whether any error was shown in the exercise of the discretion which was reposed upon the learned trial Judge to take into account all the particular circumstances affecting Mr Rosewarne and particularly matters related to his rehabilitation. It was a difficult task which the learned trial Judge had to undertake. Mr Rosewarne had only one prior conviction and that was for possessing cannabis for the purpose of trafficking, an offence for which he had been sentenced toa _ pecuniary penalty. The learned trial Judge properly said : "One must be very loath to send a young man like this to serve a prison sentence. ...". But Mr Rosewarne was a person of 24 who had left school many years before and had had long periods of unemployment. He had resigned from two positions which he had held and had done so apparently principally because of boredom. Mr Rosewarne had lived for many years on unemployment benefits and was residing at the time of the offences ina stolen motor vehicle. He was estranged from his parents. Subsequent to the offences, he had made no serious attempt to obtain employment andno_ serious attempt to improve his lifestyle, save that he had obtained accommodation at Ainslie Village. At the hearing, no member of Mr Rosewarne''s family was called to say that he or she would provide support or would help Mr Rosewarne to establish a proper lifestyle. Mr Rosewarne has seven brothers and sisters. None of these was called and no explanation was given as to their absence. Nor was any friend called to say that Mr Rosewarne had seen the error of his ways and would be assisted to obtain employment and to set himself on a proper footing. The evidence upon which the learned trial Judge was asked to act was the evidence of Mr Rosewarne at page 16 of the transcript, in which Mr Rosewarne said : "I have been staying quietly at the Ainslie Village. I have had a generally good outlook on sort of what has been happening up there and I have not been feeling anywhere near as depressed as I was last year. As far as matters go, I think I am handling things pretty well at the moment and Ido not think it is likely to happen again, the way things are going." That was the substantial matter put forward upon which the learned trial Judge was asked to impose a sentence other than custodial. The learned trial Judge took the view that the sentence most likely to achieve the deterrence of Mr Rosewarne from committing offences and the one most likely to achieve his rehabilitation was the imposition of a prison term. In my opinion, that conclusion was clearly open to him on the evidence. The material before him that any other course was likely to achieve a better result was extremely weak. Indeed, the report put in by the officers connected with the Probation and Parole Service, hardly justified any other view. At page 33 of the appeal book, the report stated that Mr Rosewarne appeared to be an intelligent man of unrealised ability but went on to say that motivation seemed to be the deficient element at that time. In my view, his Honour took the view that motivation was most likely to be achieved by the imposition of a prison sentence and his Honour had in mind the interests of Mr Rosewarne in imposing the sentence which he did. The last matter upon which I need to comment is the ground of appeal that his Honour erred as to a matter of fact. His Honour said in his reasons for decision that Mr Rosewarne was not in contact with any member of his family who could provide positive assistance. Mr Gillies submitted that this finding was wrong for there was in the probation and parole report a statement that Mr Rosewarne had described his relationships with his siblings positively and that he had retained close contact with his siblings. I doubt that his Honour's finding was incorrect. The material against it is only the report as to what Mr Rosewarne had said to the probation and parole officer, there was no reference in Mr Rosewarne's evidence to his relationships with his brothers and sisters and none of these was called to give evidence for him. But even if there were an error of fact due to some matter which was not brought out in the evidence, it would not, in my opinion, affect his Honour's decision in any material respect. I do not mean that his Honour may not have come to a different view had he been satisfied that there was a brother or sister who was prepared to provide support to Mr Rosewarne and who had confidence that Mr Rosewarne would reform, but if there were such a member of the siblings, that member did not come forward. In these circumstances, I come to the conclusion that no error has been shown in his Honour's sentence. I would dismiss the appeal. | certify that this andthe <ne CS) preceding pages are a true copy of the reasons for judgment herein of The Honour- able Mr. Justice ~a 3 -D Pe w25 antha ay" \Assoclate para" ) ,, GkkloT 2 oflo/es IN _THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) No. ACT G.47 of 1985 ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN 3 GEOFFREY MICHAEL ROSEWARNE Appellant AND 3 THE QUEEN Respondent REASONS FOR JUDGMENT (ex tempore) CORAM : Davies, Neaves, Wilcox JJ 28 October 1985 NEAVES J : I agree with what has fallen from the presiding judge. I do not wish to add anything to what he has said. The appeal should, in my opinion, be dismissed. | certify that this andthe -sreceding pages- aie a true copy of the reasons for judgment herein of The Honour- able Mr Justice Neavec Assocrate Yo Tav-t Nated 2 /n/es Gdle IN THE FEDERAL COURT OF AUSTRALIA No. ACT G.47 of 1985 ) ) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN : GEOFFREY MICHAEL ROSEWARNE Appellant AND 3 THE QUEEN Respondent REASONS FOR JUDGMENT (ex tempore) CORAM : Davies, Neaves, Wilcox JJ 28 October 1985 WILCOX J : I also agree with what has been said and am of the view that the appeal should be dismissed. \ certify that this andthe preceding pages gfe-a true copy of te reasons for judgment herein of The Honour- af able Mr. Justice VW. 'cea Associate te face Co Dated 28/7</8S Chet