R v Rose [2001] NSWCCA 370

New South Wales Court of Criminal Appeal

CITATION : R v Rose [2001] NSWCCA 370 revised - 3/10/2001 FILE NUMBER(S) : CCA 60297/2000 HEARING DATE(S) : 9 July 2001 JUDGMENT DATE : 9 July 2001

PARTIES : Rodney Wayne ROSE - Applicant Crown - Respondent JUDGMENT OF : Simpson J at 1; Sperling J at 17

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/51/0051 LOWER COURT JUDICIAL Ducker DCJ OFFICER :

COUNSEL : H DHanji - Applicant P G Berman SC - Crown/Respondent SOLICITORS : D J Humphreys - Applicant S E O'Connor - Crown/Respondent

LEGISLATION CITED : Crimes (Sentencing) Procedure Act 1999 CASES CITED: R v McHugh (1985) 12 NSWLR 588 R v Frascella (2001) NSWCCA137 DECISION : Leave to appeal granted - appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL

60297/00

SIMPSON J SPERLING J

9 JULY 2001

REGINA V RODNEY ROSE

JUDGMENT

1 SIMPSON J : The applicant seeks leave to appeal against the sentences imposed upon him in the District Court in Lismore on 15 June 2000. That was the date fixed for the trial of the applicant on a charge of sexual intercourse without consent and another charge of assault occasioning actual bodily harm. At the commencement of the trial the jury had been empanelled and the trial was about to commence when the applicant entered pleas of guilty to the offences.

2 The offences were committed on 23 January 1999. The same woman was the victim of both. In short, the applicant had met the victim, who was a twenty-nine year old woman, earlier that day and they had agreed to meet later at a nightclub. After some hours there they returned to the victim's home together. They were sexually attracted to one another. However, the applicant made sexual overtures which were rejected by the victim. Despite her rejection he persisted and became violent. The violence was such that both fell to the floor. The applicant removed the victim's underwear and used his fingers to penetrate her vagina; he forced her to perform fellatio upon him and finally used his penis to rape her vaginally.