R v Rogers - [2008] VSCA 114

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 52 of 2007

THE QUEEN
	v
STEPHEN JAMES ROGERS

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JUDGES:	MAXWELL ACJ, ASHLEY JA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 June 2008
DATE OF JUDGMENT:	23 June 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 114

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Criminal law – Sentence – Appeal against total effective sentence of 4 years and 9 months imprisonment with non-parole period of 3 years – Whether sentencing judge failed to give any or sufficient weight to prospect of rehabilitation – Appeal allowed – Appellant re-sentenced to total effective sentence of 4 years and 9 months imprisonment with non-parole period of 2 years and 7 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr D Grace QC	The Office of David Grace QC

MAXWELL ACJ:

I have had the advantage of reading in draft the reasons for judgment of Ashley JA. I would re-sentence the appellant as his Honour proposes, for the reasons which he gives.

ASHLEY JA:

Stephen Rogers appeals, by leave, against sentence passed in the County Court on 2 March 2007. On that day, having earlier pleaded guilty, he was sentenced as follows:

Count 1

Attempt to pervert the course of justice[1]

9 months’ imprisonment

Count 2

Traffic drug of dependence (phenyl-2-propanone)[2]

3 years and 6 months’ imprisonment

Count 3

Traffic drug of dependence (amphetamine)[3]

3 years 6 months’ imprisonment

Count 4

Possess drug of dependence (cannabis L)[4]

Convicted and Discharged

Count 5

Possess drug of dependence (ecstasy)5[5]

Convicted and Discharged

[1]Common law offence. The maximum penalty set by s320, Crimes Act 1958 (Vic) is 25 years’ imprisonment.
[2]Drugs, Poisons and Controlled Substances Act 1991 (Vic), s 71AC; and see Part 1 of Schedule 11. The maximum penalty is imprisonment for 15 years.
[3]Also an offence against s 71AC; and see Part 3 of Schedule 11.
[4]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act.
[5]Also an offence against s 73.

The judge directed that 3 months of the sentence imposed on count 1 and 12 months of the sentence imposed on count 2 be served cumulatively on the sentence on count 3. The total effective sentence was thus 4 years and 9 months. His Honour fixed a non-parole period of 3 years, made a declaration in respect of pre-sentence detention, and made certain ancillary orders.

There is a single ground of appeal: That the learned sentencing judge erred in his assessment of the prospects of the appellant’s rehabilitation, thereby erroneously omitting to give any or any sufficient weight to this factor in the imposition of the head sentence and the non-parole period. Particulars of that ground are stated as follows:

(a)The Appellant had not re-offended in the 33 months between his offending and the plea hearing.
(b)The Appellant’s family responsibilities had changed during this time, with the birth of a daughter.
(c)The Appellant had an ongoing productive business that…

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 [2008] VSCA 114
Case: [2008] VSCA 114
Decision Date: 23 June 2008

CaseChat Overview and Summary

In the matter of R v Rogers, the appellant, Rogers, was appealing against the sentence imposed by the sentencing judge. Rogers was convicted of multiple criminal offences and was sentenced to a total effective sentence of 4 years and 9 months imprisonment, with a non-parole period of 3 years. The central issue before the court was whether the sentencing judge failed to give any or sufficient weight to the prospect of Rogers’ rehabilitation. This issue was critical as it directly impacted the fairness and appropriateness of the sentence imposed.

The court examined the sentencing principles outlined in relevant legislation and case law, particularly focusing on the need to balance the protection of society with the rehabilitation of the offender. The court scrutinised the sentencing judge's reasons to determine if there was an appropriate consideration of Rogers' prospects for rehabilitation. It was found that the sentencing judge did not sufficiently weigh the potential for rehabilitation, which was a significant error in the sentencing process. This oversight was considered to be a material error that affected the overall sentence.

As a result of this error, the appeal was allowed, and Rogers was re-sentenced. The court imposed a total effective sentence of 4 years and 9 months imprisonment, with a non-parole period of 2 years and 7 months. This new sentence better reflected the principles of sentencing and the need to consider the prospect of rehabilitation. The final orders of the court mandated that Rogers be re-sentenced in accordance with the new terms.

Orders