R v Rogan - [2021] QCA 269

SUPREME COURT OF QUEENSLAND

CITATION:

R v Rogan [2021] QCA 269

PARTIES:

R
v
ROGAN, Peter
(applicant)

FILE NO/S:

CA No 236 of 2021
DC No 711 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 24 September 2021 (Farr SC DCJ)

DELIVERED ON:

Date of Orders: 6 October 2021
Date of Publication of Reasons: 7 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

6 October 2021

JUDGES:

Sofronoff P and McMurdo JA and Williams J

ORDER:

Date of Orders: 6 October 2021

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   Order that the sentence imposed on 24 September 2021 be varied by ordering that the term of imprisonment be suspended forthwith.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant indecently assaulted the complainant at a party at the home of a mutual friend – where the applicant pleaded guilty to one count of indecent assault and was sentenced to 12 months imprisonment to be suspended for an operational period of two years after serving two months – where the applicant was also ordered to pay the complainant $2,000 compensation – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(3)

R v Demmery[2005] QCA 462, cited
R v O’Sullivan and Lee; Ex parte Attorney-General (Qld) (2019) 3 Qd R 196; [2019] QCA 300, cited
R v Owen[2008] QCA 171, cited

COUNSEL:

J W Fenton for the applicant
A Nikolic for the respondent

SOLICITORS:

Hannay Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: The applicant pleaded guilty to one count of indecent assault. Farr DCJ sentenced him to 12 months imprisonment to be suspended for an operational period of two years after the applicant has served two months. The applicant was also ordered to pay the complainant $2,000 compensation. He seeks leave to appeal against his sentence on the ground that it was manifestly excessive insofar as he was required to serve two months actual incarceration.
The applicant and the complainant had known each other for about three years and saw each other infrequently. On 18 July 2020 they attended a party at the home of a mutual friend. At about 3.00 am the party was coming to an end and several of the guests, including the applicant and the complainant, decided to spend the night there. The two of them were given pull-out sofa beds in the lounge room. The applicant had drunk a lot of alcohol that night and was very drunk. After the two of them had lain down, the applicant asked the complainant to “come here” and he grabbed her hand. She took her hand away and turned from him, but he persisted. The complainant felt very uncomfortable, and she texted the host for help but got no reply. The applicant straddled himself…

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 Rogan

Details

AGLC: R v Rogan [2021] QCA 269
Case: [2021] QCA 269
Decision Date: 7 December 2021

CaseChat Overview and Summary

In the matter of R v Rogan, the applicant was convicted of indecent assault following an incident at a party at a mutual friend's home. The applicant pleaded guilty to the offence and was sentenced to 12 months imprisonment, to be suspended for two years after serving two months in prison, and was also ordered to pay the complainant $2,000 in compensation. The applicant appealed against the sentence, arguing that it was manifestly excessive. The appeal was heard by the court, which was required to determine whether the sentence imposed was manifestly excessive.

The court examined the nature and circumstances of the offence, the applicant's criminal history, and the principles of sentencing relevant to the offence. The court considered whether the sentence was outside the range of sentences that could be regarded as appropriate for the offence, taking into account all relevant factors. The court also considered whether the sentence was so excessive that it could not be regarded as a proper exercise of the court's discretion.

The court found that the sentence was manifestly excessive and that the applicant's sentence should be varied to reflect this conclusion. The court found that the appropriate sentence for the offence was a term of imprisonment to be suspended forthwith, rather than one that required the applicant to serve a period of imprisonment before being released on suspension. The court found that the original sentence imposed by the trial judge was outside the range of sentences that could be regarded as appropriate for the offence, and that it was so excessive that it could not be regarded as a proper exercise of the court's discretion.

The court allowed the appeal and varied the sentence imposed on the applicant. The court ordered that the term of imprisonment be suspended forthwith, rather than after a period of two months' imprisonment. The court also confirmed that the order for the applicant to pay $2,000 in compensation to the complainant would remain in place. The court granted leave to appeal and allowed the appeal against sentence.

Orders

Orders of the court

Date of Orders: 6 October 2021

1. Leave to appeal granted.

2. Appeal allowed.

3. Order that the sentence imposed on 24 September 2021 be varied by ordering that the term of imprisonment be suspended forthwith.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Rogan [2021] QCA 269
PARTIES:	R v ROGAN, Peter (applicant)
FILE NO/S:	CA No 236 of 2021 DC No 711 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 24 September 2021 (Farr SC DCJ)
DELIVERED ON:	Date of Orders: 6 October 2021 Date of Publication of Reasons: 7 December 2021
DELIVERED AT:	Brisbane
HEARING DATE:	6 October 2021
JUDGES:	Sofronoff P and McMurdo JA and Williams J
ORDER:	Date of Orders: 6 October 2021 1. Leave to appeal granted. 2. Appeal allowed. 3. Order that the sentence imposed on 24 September 2021 be varied by ordering that the term of imprisonment be suspended forthwith.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant indecently assaulted the complainant at a party at the home of a mutual friend – where the applicant pleaded guilty to one count of indecent assault and was sentenced to 12 months imprisonment to be suspended for an operational period of two years after serving two months – where the applicant was also ordered to pay the complainant $2,000 compensation – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9(3) R v Demmery[2005] QCA 462, cited R v O’Sullivan and Lee; Ex parte Attorney-General (Qld) (2019) 3 Qd R 196; [2019] QCA 300, cited R v Owen[2008] QCA 171, cited
COUNSEL:	J W Fenton for the applicant A Nikolic for the respondent
SOLICITORS:	Hannay Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent