Rosenstrauss v R [2012] NSWCCA 25

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Rosenstrauss v R [2012] NSWCCA 25 Hearing dates: 10 February 2012 Decision date: 05 March 2012 Before: Basten JA at 1; RS Hulme J at 26; Schmidt J at 29 Decision: (1) Grant leave to appeal and set aside the sentences imposed by Berman DCJ on 18 February 2011. (2) Sentence the applicant in relation to the offences to which he pleaded guilty to an aggregate sentence of imprisonment for 3 years, comprising - (a) a non-parole period of 16 months to date from 18 February 2011 and to expire on 17 June 2012, and (b) a balance of term of 20 months, commencing on 18 June 2012 and expiring on 17 February 2014. (3) The Court directs the release of the applicant on parole on 17 June 2012. Catchwords: CRIMINAL LAW - appeal - sentencing - assault involving an act of indecency upon a person under 16 years of age - offences committed between 1975 and 1981 - application of sentencing procedure at the material time - whether sentencing judge erred in setting non-parole period of two-thirds of the sentence period - discussion of remissions system established by Prisons Act 1952 (NSW)

CRIMINAL LAW - appeal - sentencing - aggregate sentences - whether Court of Appeal has power to impose an aggregate sentence of imprisonment in circumstances where that power was not available to sentencing judge - discussion of Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44 and 53A Legislation Cited: Crimes Act 1900 (NSW), s 76 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19, 44, 53A Criminal Appeal Act 1912 (NSW), s 6 Parole of Prisoners Act 1966 (NSW) Prisons Regulation 1968 (NSW) Probation and Parole Act 1983 (NSW) Sentencing Act 1989 (NSW) Cases Cited: AJB v The Queen [2007] NSWCCA 51; 169 A Crim R 32 Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 Bradbery v R [2008] NSWCCA 93; 184 A Crim R 483 Dousha v R [2008] NSWCCA 263 GRD v R [2009] NSWCCA 149 Green v Corrective Services Commission (NSW) [1982] 1 NSWLR 327 Maclay (1990) 19 NSWLR 112; 46 A Crim R 340 Mottram v Regina [2009] NSWCCA 210 PWB v R [2011] NSWCCA 84 R v MJR [2002] NSWCCA 129; 54 NSWLR 368 Radenkovic v The Queen [1990] HCA 54; 170 CLR 623 Reg v Furey [1971] 2 NSWLR 262 Smith v Corrective Services Commission (NSW) [1980] 2 NSWLR 171 Smith v Corrective Services Commission (NSW) [1980] HCA 49; 147 CLR 134 Category: Principal judgment Parties: Jeffrey Stanley Rosenstrauss - Applicant Regina - Respondent Representation: Counsel: