R v Rosevear

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: This is an application pursuant to s 13A of the Sentencing Act. The applicant, Raymond John Rosevear, seeks determination of a minimum term and an additional term for an existing life sentence which I imposed upon him on 27 August 1990. 2 The applicant is eligible to make the application having served the period set by s 13A(3)(a) of the Sentencing Act. 3 Section 13A(4A) requires the Court in considering this application

"to have regard to all the circumstances surrounding the offence for which the life sentence was imposed, and all offences, wherever committed, of which [the applicant] has been convicted at any time." 4 Before considering the circumstances of the offence in respect of which the life sentence was imposed, I observe that the only other offences recorded against the applicant were an offence of "assault police" in April 1966 for which a fine of $60 was imposed, and an offence of "shop break and steal" in September 1972 for which the applicant was placed on a recognizance to be of good behaviour for two years. 5 The circumstances of the crime of murder committed by the applicant were addressed in my remarks on sentence on 27 August 1990:

"The Crown case was that on 19 October 1989 the [applicant] lit a fire in a caravan in which he lived with his now deceased wife at Rivergum Caravan Park, Corowa. A convincing case of circumstantial evidence established to my mind beyond reasonable doubt the accused lit this fire deliberately, having soaked the bed clothes on the double bed inside the caravan with methylated spirits.

The accused, when ultimately on the Crown case he confessed to having lit the fire in an interview with investigating police officers, said that he grabbed his wife, probably by the throat, and pushed her on to the bed, then lit the fire. The post mortem findings proved the presence of haematoma consistent with attempted strangulation. To my mind the evidence proved beyond reasonable doubt the [applicant] did grab his wife by the throat and I accept beyond reasonable doubt that the [applicant] assaulted his wife immediately prior to the fire.

The deceased survived for some three days after the fire and was treated in hospital for burns to 65% of her body. However, the evidence of Dr Bradhurst was that the deceased died from cardiac failure which was due to shock consequent upon the burn injuries.

The [applicant] at the trial made a statement in which he said in effect that he had no clear recollection as to what had happened. He said he had no memory of what happened on that day. He said that the record of interview was 'not off my own bat'. He claimed that words were put into his mouth by the police officers but the jury appears to have rejected that assertion and I am satisfied beyond reasonable doubt the [applicant] said to the police when interviewed on 15 January 1989 precisely what the police claimed he said.

Through his counsel the [applicant] did not admit at the trial that he lit the fire or that he lit it deliberately but it is implicit in the jury's finding that the jury were satisfied beyond reasonable doubt that the [applicant] did light the fire deliberately.

The [applicant] raised a defence of diminished responsibility, relying upon psychiatric evidence to the effect that as a result of chronic alcoholism the [applicant] had brain damage in the form of frontal lobe damage, and that by reason of this brain damage a defence of diminished responsibility was established under s 23A of the Crimes Act. The jury's verdict makes it plain that the jury rejected that defence.

There was evidence in the case that the [applicant] had been drinking intoxicating liquor. There was an admission to that effect in the record of interview of the [applicant] and in his statement in court the [applicant] said that he was a heavy drinker and that he used to drink at least a carton of beer a day. It is clear from the jury's verdict that whatever the jury's assessment was concerning the effect of any intoxicating liquor upon the [applicant], it was nevertheless satisfied beyond reasonable doubt that the [applicant] intended to kill or that he intended to cause grievous bodily harm or that he acted with reckless indifference to human life with the requisite foresight that death would probably result from his conduct." 6 For reasons then expressed, when sentencing the applicant I rejected a submission made on his behalf that the culpability for his crime was significantly diminished by mitigating circumstances. That submission was advanced because of the provisions of s 19 of the Crimes Act, since repealed, which permitted the imposition of a lesser sentence than penal servitude for life for the crime of murder if it appeared that "the person's culpability for the crime [was] significantly diminished by mitigating circumstances…" 7 I do not propose to record in their entirety my reasons at the time expressed for rejecting that submission, but I summarise the conclusions I reached in addressing the features relied upon by the applicant to support that unsuccessful submission:

(i) I was not satisfied that the applicant was significantly affected by alcohol at the time of the fire. (ii) I accepted the evidence of Dr Milton who concluded that any brain damage from which the applicant was suffering as a consequence of alcohol abuse was mild and did not diminish the applicant's responsibility for his crime. (iii) I was not persuaded that the applicant's conduct in removing his wife from the caravan or his expression of regret for what he had done overheard by a witness after the fire significantly diminished the applicant's culpability. (iv) I did not find that the quarrel between the applicant and his wife which preceded the commission of the crime constituted mitigating circumstances relevant for the purposes of s 19. 8 Having regard to the jury's verdict I find that the applicant did what he did with intent to cause grievous bodily harm to his wife. The applicant assaulted his wife by grabbing her by the throat and pushing her on to the bed in the caravan. He then held his unfortunate victim down on the bed whilst he used a cigarette lighter to ignite the methylated spirits he had splashed on to the bed. The circumstances of the commission of this crime are such as to lead me to conclude that it was brutal and merciless. Reviewing the matter now, I consider there were no mitigating circumstances. Indeed, Mr Webb advanced none. 9 Section 13A(9) requires that I have regard to the following:

"(a) the knowledge of the original sentencing court that a person sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes 1900 and of the practice relating the issue of such licences; and

(b) any report on the person made by the Review Council and any other relevant reports prepared after sentence (including, for example, reports on the person's rehabilitation), being in either case reports made available to the Supreme Court; and

(c) the need to preserve the safety of the community, and

(d) the age of the person (at the time the person committed the offence and also at the time the Supreme Court deals with the application)". 10 I am also required to have regard to "any other relevant matter". 11 An extensive report of the Serious Offenders Review Council has been placed before this Court. This report, dated 18 May 1998, and some supplementary and more recent documentation from the Review Council, trace the applicant's behaviour and progress since he was sentenced. The applicant has also placed before the Court a number of recent certificates and a reference from the production supervisor of International Cable Manufacturers for whom the applicant worked to the satisfaction of the supervisor for a period of twelve months. I have closely considered all this evidence. 12 The applicant himself gave no evidence on this application. 13 It is to be observed by reference to my sentencing remarks in 1990 that the applicant made admissions to the police in his record of interview from which he resiled at his trial. I note that it is recorded that when seen by the Visiting Committee on 14 May 1991 the applicant denied having killed his wife. Nowhere in the subsequent documents placed before me on the application is there any record that he has since acknowledged his guilt. This is a relevant consideration on this application: see Stephens [1999] NSWCCA 80 and in particular per Sheller JA at paras 35-39. 14 The records are otherwise in all respects favourable to this applicant. No episode of misconduct has been recorded against him. He has worked well and behaved himself to the complete satisfaction of his supervisors over the past 10½ years in custody. 15 The author of the Review Council report dated 18 May 1998 wrote:

"Throughout his period in incarceration Rosevear has participated in counselling and therapy programs. He has a stable personality and this is reflected in his good behaviour which is further evidenced by his 'nil punishment' while in custody.

If his life sentence is redetermined the Serious Offenders Review Council will develop a management program for Rosevear. The program will provide for progressive reductions in security classifications, leading normally to his inclusion in unsupervised temporary leave programs (including day leave and work release)." 16 The applicant presently has a C1 classification at the Goulburn Correctional Centre. It is clear from that Centre's records that further rehabilitative planning would be assisted by a successful outcome on this present application and I am satisfied, having reflected on the evidence, that I should accede to this application and now determine a minimum term and an additional term for this applicant's sentence. Indeed, Mr Thompson has not submitted that I should do otherwise. 17 The applicant was born on 13 June 1942 so that he is now fifty-seven years of age. I must have regard to the applicant's prospects of rehabilitation, which I view favourably, but the applicant will require supervision and assistance from the appropriate authorities for an extended period following his eventual release in order to adjust to society and to guard against any further abuse of alcohol. 18 A Victim Impact Statement was placed before the Court from the victim's son and I note the serious adverse effect that his mother's death has had upon her son. However, whilst I have regard to s 23C(2) of the Criminal Procedure Act, I must heed and apply the decision in Previtera (1998) 94 A Crim R 76 in determining my approach to my sentencing task. 19 I am required to fix a sentence which would have been appropriate to impose in 1990 had I not then been required to impose a mandatory life sentence. I do however now have the advantage of assessing the rehabilitation that has occurred since 1990 and I should and I do take that progress into account in the applicant's favour. I must heed all the considerations appropriate to sentencing, including the objective gravity of the offence, retribution and general deterrence. 20 In the course of the helpful submissions made by Mr Webb and Mr Thompson, I was referred to a number of decisions as indicators to determine an appropriate sentence: Sorensen (unreported, Wood J, 6 September 1990); Perry (unreported, Studdert J, 1 November 1991); Lyttle (unreported, Newman J, 6 March 1996); Collins (unreported, McInerney J, 20 September 1996); Whitmore ([1999] NSWCCA 75); Stephens (supra); Baraghith (unreported, Grove J, 28 November 1997); and Everett (unreported, NSWCCA, 13 December 1995). I have considered each of those cases but of course I must heed the particular features of the present case in order to arrive at what I consider to be the appropriate sentence. 21 In Everett, a case with some features of similarity to the present one, in which the offender poured petrol on his wife and set fire to her, the Court of Criminal Appeal disturbed the sentence imposed at first instance as manifestly excessive and imposed a sentence of twenty-one years with a minimum term of sixteen years and an additional term of five years. It is to be observed that in Everett the offence was not committed with intent to kill. The sentence in Everett was not one determined under s 13A so, unlike the present case, the court did not have the benefit of knowledge of the steps taken by the offender towards his rehabilitation which I have in considering the applicant's case. 22 Mr Webb submitted that this case should be regarded as towards the bottom of the range of "relationship type matters" and that I should regard the gravity of the applicant's offence as being well below the gravity of the crime in Everett. 23 The notion that there was a class of "ordinary domestic murder" was rejected in Whitmore (supra). In that case Grove J, with whose judgment the other members of the court agreed, said at para 16:

"Reference was made to what was claimed to be a class of 'ordinary domestic murder'. For my part I would reject the implication that there is some such specific classification. It has been observed that killings within a domestic situation occur very often when there has been a build up of tension between killer and victim over a period of years, and some account may need to be given to the frequent circumstance that the offender has acted whilst affected by stresses and tensions within a relationship. That is not to say that existence of such is necessarily a mitigating circumstance and each case needs to be assessed in the light of its own facts but it is often the case that some mitigation can be found in such circumstances. That does not establish some less serious category of 'domestic murder' or any category under similar label." 24 Heeding the above dicta, I do not consider I am assisted by searching for a range for "relationship type matters". 25 Nor do I accept that the gravity of this applicant's offence was well below that of Everett. However, whilst recognising as I do features of similarity in Everett's case, I also recognise those different features in the present case. Ultimately, of course, I must arrive at a sentence which is appropriate to the applicant's case. 26 That sentence I now determine as follows: I set a minimum term of fifteen years penal servitude to date from 16 January 1989 and to expire on 15 January 2004 and an additional term of five years to date from 16 January 2004 and to expire on 15 January 2009. I therefore specify 16 January 2004 as the first date upon which the applicant is to be eligible for release on parole.

Last Modified: 08/19/1999 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.