R v Rodgers - [2002] QCA 148

[2002] QCA 148

COURT OF APPEAL

de JERSEY CJ
WILLIAMS JA
ATKINSON J

CA No 13 of 2002

THE QUEEN

BARRY WILLIAM RODGERS Applicant

BRISBANE

..DATE 22/04/2002

JUDGMENT

WILLIAMS JA: The applicant pleaded guilty to an offence of indecent dealing with a child under 16 years. The offence occurred on the 12th of April 1996 but he was not convicted until 14 December 2001. The reason for that lapse of time will be explained later.

The complainant boy was 12 years of age and was staying at the applicant's house on the occasion in question. At about 10.30 p.m. that night while the complainant was lying on a lounge in the bedroom watching television the applicant lay down nearby. The applicant pulled the complainant over towards him, fondled the complainant's penis, initially under his shorts, then removed the shorts and sucked on the boy's penis. The complainant boy fled and complained immediately to the police.

The applicant has an unfortunate history of similarly offending with young boys. His first relevant conviction appears to have been on the 19th of March 1962. He has a series of convictions in his homeland, New Zealand, in New South Wales and this offence in Queensland. He apparently committed some 11 offences in New South Wales between the 1st of January 1974 and the 21st of July 1989.

He was facing a warrant for arrest with respect to those charges when the present offence occurred. He fled to New Zealand very shortly after committing the offence in Queensland and, whilst in New Zealand, was convicted of certain offences which had occurred in the 1980s.
He served a period of imprisonment there, was then extradited to Sydney in April 1997 and faced the 11 charges to which I have already referred. He was dealt with for those offences in 1998 and 1999. The original sentence imposed was reduced in one respect on appeal.

The sentencing Judge here was told that the applicant's full time release date with respect to the New South Wales sentence was the 21st of April 2005 with an eligibility for release on parole from the 21st of October 2002. The applicant had applied to be transferred to Queensland under the Prisoners Interstate Transfer Act 1982 and he was so serving his New South Wales period of imprisonment in Queensland at the time he was dealt with for this offence.

The learned sentencing Judge had regard to the issue of totality given the sentences which had been imposed in New South Wales. I am of the view that she gave adequate regard to that particular principle of sentencing. She came to the conclusion that the appropriate sentence to impose here was nine months' imprisonment cumulative on the sentence presently being served with a recommendation that he be eligible to apply for parole after serving three months of that sentence. The sentencing Judge then indicated that her view was that that meant that he would be eligible to apply for parole on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Rodgers

Details

AGLC: R v Rodgers [2002] QCA 148
Case: [2002] QCA 148
Decision Date: 22/04/2002

CaseChat Overview and Summary

The case of R v Rodgers involved the applicant, Barry William Rodgers, who pleaded guilty to an offence of indecent dealing with a child under 16 years. The offence occurred on April 12, 1996, but Rodgers was not convicted until December 14, 2001. The incident in question involved Rodgers engaging in inappropriate sexual conduct with a 12-year-old boy while the child was staying at Rodgers' house. The Court of Appeal in Queensland heard the case, with Jersey CJ, Williams J, and Atkinson JCA participating in the judgment.

The primary legal issues before the Court were whether the sentence imposed by the lower court was appropriate, considering the principle of totality and the applicant's history of similar offences. The Court also had to consider whether the recommendation for early eligibility for parole was valid, given the current legislative requirements. The Court was tasked with ensuring that the sentence was both punitive and rehabilitative, taking into account the applicant's extensive criminal history.

The Court found that the sentencing Judge had appropriately considered the principle of totality in light of the sentences imposed in New South Wales. However, the Court was concerned that the recommendation for early eligibility for parole might not align with current legislative criteria, which requires a head sentence of more than two years for such a recommendation. To address this, the Court decided to modify the sentence by suspending it after three months, with an operational period of 12 months, ensuring that Rodgers would serve the required three months cumulative on his New South Wales sentence. This decision aimed to provide greater certainty and compliance with legislative requirements.

The Court granted leave to appeal against the sentence, allowed the appeal, set aside the original sentence, and ordered that Rodgers be sentenced to nine months' imprisonment cumulative on his New South Wales sentence. The sentence was to be suspended after three months, with an operational period of 12 months. This outcome was agreed upon by all three judges.

Orders