R v Rogers

Case [2013] QCA 192

SUPREME COURT OF QUEENSLAND

CITATION:

R v Rogers [2013] QCA 192

PARTIES:

R
v
ROGERS, Steven James
(applicant)

FILE NO/S:

CA No 348 of 2012
DC No 236 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

19 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

3 May 2013

JUDGES:

Holmes and Fraser JJA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.  Leave to appeal is granted.

2.  The appeal is allowed.

3.  The recording of convictions on each count is set aside.

4.  On each count no conviction is to be recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where applicant was convicted on his own plea of guilty of two counts of using electronic communication with intent to expose indecent matter to a child under 16 – where applicant sentenced to three years probation with convictions recorded – where applicant seeks leave to appeal his sentence on the bases that the learned sentencing Judge erred when he sentenced the applicant on the basis that there was something “seriously wrong with the way in which (his) case (had) come before the court”, erred in proceeding on the basis that the applicant was not remorseful and erred when he sentenced the applicant against a “background of unlawful carnal knowledge” – whether the learned sentencing Judge erred in sentencing the applicant

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where applicant became a reportable offender under the Child Protection (Offender Reporting) Act 2004 (Qld) on the recording of convictions – whether the recording of convictions would have an adverse impact on the applicant’s social wellbeing – where the offending was towards the lower end of the scale for indecent exposure cases – where applicant was of otherwise good character – whether the learned sentencing Judge erred in recording convictions against the applicant

Child Protection (Offender Reporting) Act 2004 (Qld), s 5(2), s 11(1), s 12, s 16, s 18, s 19, s 20, s 22, s 36
Criminal Code Act 1899 (Qld), s 218A(1)
Penalties and Sentences Act 1992 (Qld) s 9(5), s 12, s 180

R v Burdon; Ex parte A-G (Qld) (2005) 153 A Crim R 104; [2005] QCA 147, cited
R v D [1996] 1 Qd R 363, [1995] QCA 329, followed
R v Gallagher, ex parte Attorney-General [1999] 1 Qd R 200, [1997] QCA 467, cited
R v Hays (2006) 160 A Crim R 45; [2006] QCA 20, cited
R v Kelly [2009] QCA 185, cited
R v Koster [2012] QCA 302, cited
R v McGrath [2006] 2 Qd R 58; [2005] QCA 463, cited
R v Mirza; ex parte A-G (Qld) [2008] QCA 23, cited
R v SAT

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Details
AGLC
R v Rogers [2013] QCA 192
Case
[2013] QCA 192
Decision Date

CaseChat Overview and Summary

In the case of R v Rogers, the applicant appealed against his sentence after being convicted of two counts of using electronic communication with intent to expose indecent matter to a child under 16. The applicant, having pleaded guilty, was sentenced to three years of probation with convictions recorded. The applicant sought leave to appeal his sentence, arguing that the sentencing Judge erred in his approach, particularly by considering that there was something seriously wrong with how the case had come before the court, by assuming the applicant was not remorseful, and by sentencing against a background of unlawful carnal knowledge. The applicant also argued that the recording of his convictions would adversely impact his social wellbeing, given the relatively minor nature of his offending and his otherwise good character.

The legal issues before the court were whether the sentencing Judge had erred in his approach to sentencing and in recording the applicant's convictions. The court had to consider the principles of sentencing and the impact of recording convictions under the Child Protection (Offender Reporting) Act 2004 (Qld). The court examined the arguments presented by the applicant and the submissions by the prosecution in response. The court assessed the severity of the offence, the applicant's character, and the potential impact of recording convictions on the applicant’s social wellbeing.

The court found that the sentencing Judge did indeed err in his approach, particularly by acting on incorrect assumptions about the applicant’s remorse and by considering a background of unlawful carnal knowledge not supported by the evidence. The court further found that the recording of convictions would have a significant adverse impact on the applicant’s social wellbeing, given the relatively minor nature of his offending and his otherwise good character. As a result, the court granted the applicant leave to appeal, allowed the appeal, set aside the recording of convictions on each count, and ordered that no conviction be recorded on each count.

These orders reflect the court's determination that the sentencing process was flawed and that the recording of convictions would be unduly punitive given the circumstances. The court's decision highlights the importance of accurate sentencing principles and the consideration of the individual circumstances of each case.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The recording of convictions on each count is set aside.

4. On each count no conviction is to be recorded.

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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