New South Wales Supreme Court CITATION : Regina v J W S Rose [2002] NSWSC 26 CURRENT JURISDICTION: Criminal Division FILE NUMBER(S) : SC 70032/01 14/09/01 19/09/01 02/10/01-04/10/01 08/10/01-11/10/01 HEARING DATE(S) : 15/10/01-19/10/01 22/10/01-25/10/01 29/10/01-01/11/01 05/11/01-09/11/01 12/11/01-16/11/01 20/12/01 JUDGMENT DATE : 22 February 2002 PARTIES : Regina Jeffrey William Spencer Rose JUDGMENT OF : Kirby J COUNSEL : C Maxwell QC (Crown) J Stratton (Acc) SOLICITORS : S E O'Connor (Crown) D J Humphries (Acc) CATCHWORDS : Criminal Law - Sentence - Relevance of advanced age of offender and delay in prosecution LEGISLATION CITED : Crimes (Sentencing Procedure) Act, 1999 Savaas v The Queen (1995) 183 CLR 1 R v Storey (1997) 89 A Crim R 519 Olbrich v The Queen (1999) 199 CLR 270 CASES CITED : Longman v The Queen (1989) 168 CLR 79 R v Previtera (1997) 94 A Crim R 76 Holyoak (1995) 82 A Crim R 502 Regina v V (CCA, 24.2.98, unreported) R v Todd (1982) 2 NSWLR 517 DECISION : Sentence - ref para 38 IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION Kirby J Friday 22 February 2002 70032/01 - REGINA v Jeffrey William Spencer ROSE JUDGMENT ON SENTENCE 1 KIRBY J: On 16 November 2001, a jury found Mr Jeffrey Rose guilty of the murder of his wife, Kristine Anne Rose. It remains for me to now pass sentence. In order to do so, I must determine the facts relevant to the sentencing discretion in a manner consistent with the jury verdict (Savaas v The Queen (1995) 183 CLR 1). Where facts are adverse they must be established beyond reasonable doubt. Where they favour Mr Rose, it is enough that they should be proved on the balance of probabilities (R v Storey (1997) 89 A Crim R 519; Olbrich v The Queen (1999) 199 CLR 270). The Relationship Between Mr Rose and the Deceased 2 Mr Rose was born on 9 January 1945. His wife, Kristine, was born on 31 October 1950. They married at Coffs Harbour in November 1977. The deceased was last seen on Friday 30 April 1982. Her body was discovered in a remote location approximately six kilometres from Armidale on 23 May 1982. At the time of these events, therefore, the deceased was 31 years old. Mr Rose was 37. Mr Rose is now aged 57 years. 3 There was a good deal of evidence at the trial concerning the relationship between Mr Rose and his wife, including evidence from Mr Rose. The Crown suggested that this evidence demonstrated a history of physical abuse before the murder. According to the Crown, it was, therefore, a circumstance of aggravation. 4 There certainly was evidence, which I accept, that Mr Rose was possessive. He was someone who sought to exert control over his wife. I also accept that Mr Rose abused alcohol and that, when affected by alcohol, he could be verbally abusive. 5 However, I am not able to accept beyond reasonable doubt that Mr Rose physically abused his wife. Indeed, I think it likely that he did not do so in any significant way. For more than two years before January 1982, Mr Rose and the deceased lived in a caravan on a property owned by Deirdre and John Allison. Mr and Mrs Allison were friends. They saw Mr Rose and his wife every day, or every other day. Yet neither Mr Allison nor Mrs Allison ever witnessed Mr Rose striking his wife. Nor did they see bruises or other signs of violence. More than that, the deceased never complained to either of them of having been beaten by Mr Rose. 6 I accept this evidence, although it does not provide a complete answer to the Crown assertion. The relationship between Mr Rose and his wife came under greatest strain after they left the Allisons and moved to Armidale in January 1982. In February 1982 they separated. Mr Rose was plainly unhappy about his wife's decision to enrol at the University of New England. The deceased, for a short time, entered a women's shelter in Armidale. Another person at the shelter was Ms Rhonda Craig. Ms Craig gave evidence of repeated complaints by the deceased of physical abuse. She also said that she repeatedly saw physical injuries, including, bruises, black eyes, split lips and so on. No-one else gave evidence of having seen such injuries, though a number of witnesses had seen the deceased during the months following her arrival in Armidale. I think it likely, for this and other reasons, that Ms Craig has confused the deceased with someone else at the women's shelter. 7 Having been at the women's shelter for about one week, the deceased moved to the home of a friend, Ms Julie Wragg. She remained with Ms Wragg for about three weeks before moving to a flat provided by the university. Ms Wragg met Mr Rose. During the time that the deceased was living with her, she did not witness any physical violence by Mr Rose towards his wife. Nor did she give evidence of injuries. She did, however, give evidence of complaints by Kristine Rose of having been physically abused. Such evidence, in its detail, was not included in her original statement. The terms of her account suggested that such abuse must have occurred during the time that the deceased was living with the Allisons. Such evidence, therefore, was at odds with the evidence given by Mr and Mrs Allison, whose evidence I prefer. 8 The only other evidence of physical abuse was that of a university friend, Ms Joanne Fuller. Ms Fuller was an impressive witness. She gave evidence that the deceased complained that her husband had physically thrown her out of the caravan on one occasion. Ms Fuller acknowledged that she did not include that assertion in her original statement. Even if it were right, it was evidence of an isolated incident without the suggestion of injury. The Circumstances of Kristine Rose's Death 9 Let me move to the circumstances of the death of Kristine Rose. Mr Stratton, counsel for Mr Rose, urged that I should not find an intention to kill, as opposed to an intention to inflict grievous bodily harm. 10 Mr Rose, in his youth, had practiced karate for a number of years. He attained the level of brown belt, which is one level below black belt, being the highest level that can be achieved (apart from an instructor qualification). Students of karate are taught to apply pressure to various susceptible points of the body, including the neck. They are also taught that excessive pressure may cause death. I am satisfied that Mr Rose had this knowledge. 11 Three witnesses gave evidence that, before the murder, Mr Rose, whilst under the influence of alcohol, boasted that he was familiar with karate, and knew how to kill someone. Two of these witnesses also said that Mr Rose made threats against his wife, Kristine. Each came forward many years after Kristine Rose's death. Their evidence, therefore, must be approached with considerable caution (Longman v The Queen (1989) 168 CLR 79). In the case of Ms Anne-Marie Reeves and her sister, Ms Michelle Long, there were significant contradictions and discrepancies in the accounts which they gave. Ms Dianna Bourke, the other witness, gave evidence in a straight forward way. I am satisfied that, under the influence of alcohol, Mr Rose did speak of his knowledge of karate and pressure points. I accept the evidence of Ms Bourke that he gestured with his fingers towards his neck. I am, however, not satisfied beyond reasonable doubt that Mr Rose specifically threatened his wife. Nonetheless, clearly Mr Rose, before the murder, was turning over in his mind the possibility of harm to the deceased. 12 Some weeks before 30 April 1982, Kristine Rose met a person I shall refer to as "Peter", the brother of a friend from the University. The meeting took place during the Easter weekend of 1982. She was clearly attracted to him, as he was to her. They had intercourse a number of times during the course of that weekend. Peter then returned to Brisbane on 11 April 1982. He thereafter sent a card to the deceased, expressing his affection. The card came to the notice of Mr Rose. Mr Rose, at this time, still loved his wife. He hoped that they would sort out their differences and reunite. They had three children. Mr Rose was naturally upset by the card. 13 In the weeks that followed, Mr Rose and the deceased continued to speak and occasionally see each other. Lectures finished and term ended on Friday 30 April 1982. The deceased made plans to travel to Brisbane by bus at 11.00 pm that evening in order to stay with Peter. She was plainly excited by the prospect. She arranged to meet her university friends at the hotel in Armidale some hours before the bus left. 14 The deceased also made arrangements with Mr Rose to have dinner with him that evening before she went to the hotel. He had agreed to look after her pet bird and her pot plants. She, in turn, had undertaken to leave him her car. Mr Rose, at that time, was disqualified from driving. He planned to use his wife's car the following Monday when undertaking a driving test. 15 Precisely how the deceased met her death cannot be known with certainty. One infers that something occurred during the course of their meeting which excited Mr Rose's anger. When her body was discovered more than three weeks later, the only injury found on autopsy was a small bruise in the area of the neck, near the carotid sinus. The jury obviously accepted, and I accept, that Mr Rose deliberately applied pressure to his wife's neck, and thereby caused her death. Given his knowledge of martial arts, I am satisfied that he did so, intending to kill her. I believe it is likely that the intention was spontaneously formed. In no sense do I believe that he lured her into a trap, intending to cause her harm. Rather, I think it likely that her evident happiness at the prospect of rejoining Peter was more than he could bear. 16 Having murdered his wife, Mr Rose disposed of her body. He told friends, and then the police, a false story. He adhered to that story before the jury. He did not give evidence on sentence. However, a psychiatric report was tendered on his behalf. It included a history in which Mr Rose again asserted his innocence. Plainly there is no contrition. 17 Murder has always been regarded as the most serious offence in the criminal calendar. Absent extraordinary circumstances, it calls for a substantial sentence by way of imprisonment to serve the interests of punishment, including general deterrence. I have been furnished with Victim Impact Statements by two of the children of the deceased, and by her sister. Each describes the anguish occasioned by her death, including the circumstances of her death. That anguish has been made the worse by the protracted nature of the prosecution, although it should be said that Mr Rose was in no way responsible for that delay. One can only sympathise with members of the family and imagine their agony. However, the sorrow of those who remain behind is not a matter which I should take into account, and I do not do so (R v Previtera (1997) 94 A Crim R 76 at 85). The Subjective Circumstances of Mr Rose 18 Mr Rose had a difficult early life. He was one of six children. His father deserted the family and shortly after died. His mother brought up the children alone, working to support them. 19 Mr Rose has a number of criminal convictions. They are for offences of dishonesty, not violence. In 1962 he was sentenced to 12 months imprisonment for a series of offences involving breaking and entering. In 1964 he was again sentenced to imprisonment, on this occasion for one month, for offences of dishonesty. He has other minor convictions of no particular relevance. His last conviction was in 1977. 20 Three issues arise which have been the subject of submissions: · First, is Mr Rose's age a relevant consideration? · Secondly, is the delay in bringing the prosecution a relevant matter, suggesting the need for leniency? · Thirdly, what are the prospects of rehabilitation? Does Mr Rose, upon release, present a danger to the community, and particularly women? 21 There is also an issue as to whether a finding should be made of special circumstances, justifying a departure from the ratio between non-parole period and the term of the sentence. 22 I will deal with each issue in turn. The Age of Mr Rose 23 Mr Rose, as mentioned, is 57 years old. Inevitably, the sentence must include a significant non-parole period. Mr Rose, therefore, is likely to be quite old upon release. 24 It was common ground that, in determining an appropriate sentence, I should have regard to Mr Rose's age. Authorities suggest that it is relevant in at least three ways (Holyoak (1995) 82 A Crim R 502). First, it must be acknowledged that gaol involves the risk of physical assault from other prisoners. Should it happen that Mr Rose is threatened by other prisoners, his advanced age may put him at a disadvantage. Indeed, because Mr Rose has a withered right arm, that disadvantage is likely to be the greater. Gaol, therefore, is likely to be more onerous for him than for other younger and able bodied prisoners. 25 Secondly, a lengthy sentence upon a person of advanced years is likely to be the more onerous for the reasons explained by Allen J (with whom Handley JA and Hulme J agreed) in Holyoak: (at 507) "It is, of course, clear that a sentence imposed upon an offender when he (is) of such an age that, should he not die in gaol, he will have little worthwhile life left after his release is likely to bear more heavily upon the offender than a similar term imposed upon a younger man who can look forward to a worthwhile life after release. This is so obvious that I would not infer that his Honour did not recognise it." 26 His Honour added: (at 507) "Of course, account must be taken of how much more onerous it will be for him to serve a gaol sentence than it would be if he were younger. That is material to the appropriate length of the full-time custody." 27 Thirdly, the advanced age of an offender is also relevant to the suitability of the case as a vehicle for general deterrence (Holyoak: Allen J at 507). The Delay in Prosecution 28 The crime for which Mr Rose has been convicted was committed on or about 30 April 1982. The prosecution of Mr Rose was contemplated at that time. Indeed, it was recommended by the Coroner. However, the Attorney General declined to file a bill. Interest in the prosecution was revived in 1995. It is likely that Mr Rose became aware of that interest in approximately 1997, when witnesses were approached by the police. Mr Rose was charged in June 2000. He was, as mentioned, convicted on 16 November 2001. 29 Delay in prosecution does not give rise to an automatic right to leniency. Leniency will be appropriate either where the crime may be described as "stale", or where the offender can point to a specific detriment, the consequence of delay. A crime may be described as stale where it can be characterised as being less serious and where there has been significant delay. Murder can never be described as stale, although its prosecution may amount to an abuse of process where the delay is extraordinary. That is not this case, although there was significant delay. 30 Detriment may arise in many ways. Evidence relevant on sentence, which may have been available had the prosecution been brought in a timely way, may cease to be available (Regina v V (CCA, 24.2.98, unreported). The offender, on the other hand, may have been left in a state of uncertain suspense (R v Todd (1982) 2 NSWLR 517, per Street CJ at 519), or may have altered his life in ways which make the punishment more onerous once imposed. Or there may be specific detriment which may arise in other ways. Allen J, in Holyoak, said this: (at 508) "Whether, in any particular case, so long a delay is a detriment depends upon the circumstances of that case. There is no rule of law that it always is a detriment - although often it will be. It could be, to take a case at one extreme, that the offender has spent years in emotional hell, appalled at what he has done, terrified that the day may come when he is found out, disgraced and convicted, fearing that at any time there will be that knock on the door and never feeling free to remain so long in any community that he comes to be known and his background be of interest to others. At the other extreme the offender may have gone through the years untroubled by his offences, lacking any remorse in respect of them and feeling confident that they will never come to light because the victim never would be prepared to talk about them, his confidence increasing as the years went by with his victim remaining silent - the offender enjoying over the many years unwarranted acceptance by his associates in his respectable and stable lifestyle." 31 On the other hand, delay may work to the offender's advantage. As Wood J said in R v V (supra), delay may provide "an opportunity ... for the offender to establish a new life and to positively demonstrate his rehabilitation". 32 Here there was no evidence that, at least before 1997, Mr Rose lived in a state of uncertain suspense, or suffered some private hell. Before 1997 he regarded the matter as behind him. Once revived, there was some delay before charges were laid. No doubt some anguish was associated with that delay. There was, I believe, disadvantage to Mr Rose in that he may have had available evidence on sentence rebutting the allegation of domestic violence had the prosecution been brought in a timely way. Notwithstanding that disadvantage, I have found in his favour on that issue and the detriment therefore has no particular relevance. 33 The delay, indeed, has operated to Mr Rose's advantage in one respect. He is now able to point to a trouble free life over the last twenty years, which is relevant to the issue of Mr Rose's rehabilitation. Rehabilitation of Mr Rose 34 Dealing with the issue of rehabilitation, a psychiatric report of Dr Jennifer Thompson, dated 17 December 2001, was tendered on behalf of Mr Rose. Dr Thompson offered the view that there was little risk of Mr Rose reoffending. I accept that view. Dr Thompson's opinion was, in part, based upon the absence of any offence in the period since 1982. Special Circumstances 35 There is no doubt that Mr Rose's period of incarceration is likely to be difficult, first because of his age, and secondly because of his right arm disability, which is significant. Further, his sentence will be served in New South Wales whereas his friends, and especially his son Damien, are located in Victoria. These matters in combination may give rise to difficulties of adjustment on release, although I remain confidence, as I have said, that Mr Rose will not reoffend. I believe, nonetheless, that a finding of special circumstances is justified (s44(2) Crimes (Sentencing Procedure) Act, 1999), although the adjustment required to Mr Rose's sentence is not substantial because, necessarily, the non parole period must itself be significant. 36 Mr Rose was in custody from 15 June 2000 until 19 October 2000, when he was released on bail. He was again placed in custody on 16 November 2001, when the jury returned its verdict. On my calculations, he has spent a total of a little less than five months in custody before his conviction on 16 November 2001. 37 The sentence which seems to me appropriate in the circumstances is 14 years, with a non-parole period of 10 years. In framing the sentence, which I will now impose, I have subtracted five months from both the term of imprisonment and the non-parole period. I have identified as the date of commencement, the date on which Mr Rose returned to custody, having been convicted, namely 16 November 2001. 38 Jeffrey William Spencer Rose, I sentence you to imprisonment for 13 years and 7 months commencing on 16 November 2001 with a non-parole period of 9 years and 7 months . You will be eligible for release on parole on 15 June 2011. Your sentence will expire on 15 June 2015. ---------- Last Modified: 02/26/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.