R v Rogers - [2009] QCA 10

SUPREME COURT OF QUEENSLAND

CITATION:

R v Rogers [2009] QCA 10

PARTIES:

R
v
ROGERS, Ian Adrian
(applicant)

FILE NO/S:

CA No 336 of 2008
DC No 2553 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

13 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2009

JUDGES:

McMurdo P, Keane JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is refused

CATCHWORDS:

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – HARDSHIP – TO OFFENDER – applicant charged with making child exploitation material and knowingly possessing child exploitation material – sentenced to three years imprisonment, suspended after 10 months with an operational period of four years – spent seven and a half months in prison prior to sentence – imprisonment was more onerous due to disability of applicant – whether sentence was manifestly excessive

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – NATURE AND CIRCUMSTANCES OF OFFENDER – ILLNESS OR PHYSICAL DISABILITY – applicant had a significant physical disability not adequately managed in prison on remand – whether sentence was manifestly excessive

COUNSEL:

R East for the applicant
D R Kinsella for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

:McMURDO P The applicant pleaded guilty to one count of making child exploitation material ("CEM") (count 1) and two counts of knowingly possessing CEM (counts 2 and 3). He was sentenced to three years imprisonment on count 2 and 12 months imprisonment on each of counts 1 and 3. The sentences were suspended after 10 months with an operational period of four years. Pre-sentence custody of 223 days (about seven and a half months) was declared to be time served under the sentence.

He was 39 at the time of his offending and 40 at sentence. He had no previous convictions. The circumstances of his offending were set out in a tendered schedule of facts.

At 6.45 am on 25 July 2007, police from Taskforce ARGOS executed a search warrant at the applicant's Belmont residence. He resided with his wife, their infant child and his teenage step-daughter in a mobile home with an annex attached. His parents lived in the main house on the property. The police asked him if he had anything to declare. He indicated that he had two computer hard drives in his mobile home which held CEM and gave them to the police. The police searched his mobile home and found further computer equipment. He agreed to accompany the police to the Taskforce office. The police discovered a very large quantity of CEM on the hard drives which the applicant had provided to them. A lawyer attended the office and spoke to the applicant. The applicant then declined to participate in an electronic record of interview. He was issued with a notice to appear on one…

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 Rogers

Details

AGLC: R v Rogers [2009] QCA 10
Case: [2009] QCA 10
Decision Date: 13 February 2009

CaseChat Overview and Summary

In the case of R v Rogers, the applicant was charged with making child exploitation material and knowingly possessing child exploitation material. The applicant was sentenced to three years imprisonment, which was suspended after 10 months, with an operational period of four years. The applicant had already spent seven and a half months in prison prior to the sentence being handed down. The applicant contended that the sentence was manifestly excessive due to the hardship experienced in prison, which was exacerbated by their physical disability.

The legal issues in this case revolved around the determination of whether the sentence imposed was manifestly excessive. The applicant argued that the hardship experienced in prison, coupled with their disability, made the sentence more onerous than necessary. The court needed to consider the relevant factors, including the nature and circumstances of the offender, and whether the sentence was appropriate given the applicant's physical disability.

The court considered the relevant factors and found that the sentence was not manifestly excessive. The court held that while the applicant's disability was a relevant factor, it did not necessarily mean that the sentence was inappropriate. The court found that the sentence was within the range of sentences that could be considered appropriate for the offences committed. The court also noted that the applicant had not demonstrated that the sentence was manifestly excessive, and therefore, the application for leave to appeal against sentence was refused.

Orders

Orders of the court

The application for leave to appeal against sentence is refused

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 Rogers [2009] QCA 10
PARTIES:	R v ROGERS, Ian Adrian (applicant)
FILE NO/S:	CA No 336 of 2008 DC No 2553 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	13 February 2009
DELIVERED AT:	Brisbane
HEARING DATE:	3 February 2009
JUDGES:	McMurdo P, Keane JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal against sentence is refused
CATCHWORDS:	CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – HARDSHIP – TO OFFENDER – applicant charged with making child exploitation material and knowingly possessing child exploitation material – sentenced to three years imprisonment, suspended after 10 months with an operational period of four years – spent seven and a half months in prison prior to sentence – imprisonment was more onerous due to disability of applicant – whether sentence was manifestly excessive CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – NATURE AND CIRCUMSTANCES OF OFFENDER – ILLNESS OR PHYSICAL DISABILITY – applicant had a significant physical disability not adequately managed in prison on remand – whether sentence was manifestly excessive
COUNSEL:	R East for the applicant D R Kinsella for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent