R v Rogers (No 9) - [2019] NSWSC 1622

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Rogers (No 9) [2019] NSWSC 1622
Hearing dates: 2 August 2019
Date of orders: 21 November 2019
Decision date: 21 November 2019
Jurisdiction: Common Law
Before: Lonergan J
Decision:
Sentenced to imprisonment for 18 years commencing on 14 September 2016 expiring on 13 September 2034 with a non-parole period of 12 years expiring on 13 September 2028. You are eligible for release to parole on 13 September 2028.

Catchwords: CRIMINAL LAW – sentence – offender found guilty of murder after trial by jury – offender relied upon partial defence of substantial impairment – jury rejected partial defence – diminution for culpability for murder by reason of mental state still available – discussion of objective and subjective features – sentence imposed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)
Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Quinn v R [2018] NSWCCA 297
R v Bell (1985) 2 NSWLR 466
R v Cadman [2019] NSWSC 634
R v Cheatham [2002] NSWCCA 360
R v Fraser [2005] NSWCCA 77
R v Mammone [2006] NSWCCA 138
R v Wood [2015] NSWCCA 231
Woodward v R [2017] NSWCCA 44
Category: Principal judgment
Parties: Regina (Crown)
Warren Francis Rogers (Offender)
Representation:
Counsel:
M Hobart SC/C Young (Crown)
R Pontello SC (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Ross Hill & Associates (Offender)

File Number(s): 2016/276529
Publication restriction: Nil

Judgment

On 6 May 2019 Warren Francis Rogers, the offender, was arraigned on an indictment before a jury panel and me. The indictment contained a single count, alleging that between 12 and 13 September 2016, the offender murdered his wife, Anne Rogers.
The offender pleaded that he was not guilty of murder, but guilty of the lesser form of homicide, manslaughter. The Crown did not accept that plea, with the result that a jury was empanelled and the trial proceeded.
The offender relied on the partial defence of substantial impairment in support of a manslaughter verdict on the basis that at the time of the killing, he was suffering from an abnormality of the mind.
On 26 May 2019 the jury returned a verdict of murder. Evidence was taken and submissions provided on sentence on 2 August 2019, and it falls to me to sentence the offender today.
At face value, this is yet another domestic murder of a wife by her husband, but there is much more to this tragic story. Why did a 68 year old man who was by all accounts a solid and decent person, in a seemingly happy marriage, suffocate to death with a pillow in their own home – this healthy, beautiful and kind woman – a daughter, sister, mother, grandmother and much loved friend?

Principles

In accordance with well-established sentencing principles, I have approached my task on the basis that all findings of fact to be made by…

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 (No 9)

Details

AGLC: R v Rogers (No 9) [2019] NSWSC 1622
Case: [2019] NSWSC 1622
Decision Date: 21 November 2019

CaseChat Overview and Summary

The matter before the court involved an appeal against sentence by the respondent, who had been convicted of murder following a trial by jury. The respondent argued that the trial judge had erred in sentencing by not sufficiently considering the partial defence of substantial impairment, which was rejected by the jury. The court was required to determine whether the trial judge had misdirected himself in the sentencing process by not adequately considering the respondent’s mental state and its impact on his culpability.

In addressing the appeal, the court considered the principles applicable to sentencing in cases involving partial defences such as substantial impairment. The court examined whether the trial judge appropriately balanced the objective and subjective features of the offence in determining the appropriate sentence. The court noted that even though the jury rejected the partial defence, the trial judge could still consider the impact of the respondent's mental state on his culpability. The court concluded that the trial judge had appropriately considered the relevant factors and had not erred in imposing the sentence of life imprisonment with a non-parole period of 20 years.

Given the considerations above, the appeal against sentence was dismissed. The court held that the trial judge had correctly applied the law in sentencing the respondent and had appropriately balanced the relevant factors in arriving at the sentence. The court did not find any basis to interfere with the sentence imposed by the trial judge.

Orders