Rooke v R [2011] NSWCCA 280

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Rooke v R [2011] NSWCCA 280 Hearing dates: 30 September 2011 Decision date: 16 December 2011 Before: Whealy JA, Hislop J, Latham J Decision: Leave to appeal granted; appeal dismissed. Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Royal [2003] NSWCCA 260 Mitchell v R [2006] NSWCCA 72 Cranshaw v R [2009] NSWCCA 80 JOD v R [2009] NSWCCA 205 Stevens v R [2009] NSWCCA 260 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 R v Holder [1983] 3 NSWLR 245 R v Mungomery [2004] NSWCCA 450, (2004) 151 A Crim R 376 Category: Principal judgment Parties: Julien Peter Rooke v Regina Representation: I. Nash (Applicant) M. Cinque (Crown) Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2009/42910; 2009/54889; 2009/80420; 2009/130495 Decision under appeal Date of Decision: 2010-10-01 00:00:00 Before: King SC DCJ File Number(s): 2009/42910

Judgment 1WHEALY JA : I agree with Hislop J. 2HISLOP J :

Introduction The applicant was charged with 13 counts of using a false instrument with intent contrary to s 300(2) of the Crimes Act 1900 and seven counts of obtaining money by deception contrary to s 178BA(1) of the Crimes Act 1900. The maximum penalty for each of the s 300(2) offences is ten years imprisonment. The maximum penalty for each of the s 178BA(1) offences is five years imprisonment. No standard non parole period is applicable to either offence. 3The applicant pleaded guilty to all charges. He received an effective sentence of five years four months imprisonment with a balance of term of two years. 4In sentencing the applicant, 11 offences under s 178BA(1) and 16 offences under s 300(2) were taken into account on four Form 1 documents. 5The relevant facts were the subject of written agreement. As his Honour stated in his remarks on sentence: "The offences in general involved using false instruments to open false accounts or to transfer funds from the accounts of others to false accounts or to withdraw cash from the accounts of others." 6The applicant has sought leave to appeal against sentence. The grounds of appeal are: "1. His Honour erred in finding as a fact that the total amount of cash withdrawn by the offender was $373,430.00. 2. His Honour erred in the manner he took into account the applicant's participation in the methadone program when assessing his prospects for rehabilitation. 3. His Honour erred by taking into account the fact the applicant had not provided his version of events to the authorities before giving evidence on sentence. 4. The overall sentence is manifestly excessive."