R v. Rosengren

[2006] QSC 1

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

FRYBERG J

[2006] QSC 001

THE QUEEN

v.

JAMIE LEE ROSENGREN

BRISBANE

..DATE 06/01/2006

SENTENCE

HIS HONOUR:  Jamie Lee Rosengren, you have been convicted on

your own plea of guilty of one count of unlawfully having

possession of cannabis sativa.  The offence was committed in

prison, where you were serving a prison sentence.  You were

sentenced in June 2004 to imprisonment for 39 months, that is,

three years and 3 months, for a batch of offences, the most

serious of which was robbery with actual violence whilst

armed.

For reasons which were, no doubt, valid, the sentencing judge

recommended that you be eligible for post-prison

community-based release after serving 13 months of that time.

You had already served approximately 9 months, so that you

could have applied for release at the expiration of

approximately 4 months from the time when the sentence was

pronounced.  You made no such application.  The sentence was

pronounced in June 2004.

The offence which brings you before me today was committed in

February 2005, some 3 months after you could have applied for

post-prison community-based release.  The result of the

offence before me today was that you became ineligible whilst

that offence was pending to apply for release.  As a result,

you have now served some 27 months of the 39-month sentence

imposed upon you.  On the face of things, it is the time which

this offence has taken to get to be dealt with which is the

most obvious cause for your not having made application since

the offence was committed for release.  I do not overlook the

possibility that you may have considered waiting until you

were eligible for release on remission, but it seems a little

dubious that in your case remissions would have been granted.

You have, therefore, reached a point in your sentence not only

well past the date upon which you were entitled to the benefit

of an early recommendation on the last occasion, but also past

the point at which, under the Act, you may make application

for post-prison community-based release when no recommendation

has been made; that is, halfway through your sentence.

Your current offence involved possession of about 5.9 grams of

cannabis.  That was delivered to you in prison on the 18th of

February 2005 by your girlfriend.  There is no evidence that

she acted on your instigation.  On the contrary, she says it

was her idea and apparently that you knew nothing about it.

While that seems to me unlikely, I am prepared to act upon

that basis.  That brings me to the first unsatisfactory

feature of the present case.

You have been charged with only one offence and are to be

sentenced, of course, only for that offence.  In fact, your

girlfriend was before me yesterday and pleaded guilty to two

offences (the one that results in your charge, being the

second) of supplying cannabis to you.  You declined to be

interviewed about the matter, and your version of what

happened on an earlier occasion has not been placed before me.

You have, of course, had the opportunity to give evidence

before me, but have not chosen to do so.

The Crown takes the view that I must ignore the fact that I

know another offence was committed by reason of her plea of

guilty and that I cannot take the true facts into account as

part of the background in sentencing you.  It seems to me that

that is an incorrect view of the law.  If you have committed a

previous similar offence, how the fact that you have committed

it is to be proved is variable from case to case.  Proving

your criminal history is only one way of proving the fact that

you have committed a previous offence.  It seems to me that it

would be most material to take into account as part of the

background the fact that you have committed two similar

offences rather than one, if only by reason of the fact that

one would be less inclined to mitigate the sentence than one

would otherwise be by having that knowledge.  However, in this

case the Crown insists that I must ignore what I know to be

the facts and proceed upon a fiction.

I deplore this approach.  In my view, it is most undesirable

in the public interest that judges should be denied access to

the full facts.  The reality, however, is that the material

which is put before me on your sentence is in the control of

the parties.  Despite the fact that I know from sentencing

your girlfriend yesterday that the other offence was

committed, the Crown has chosen quite deliberately not to put

that information before me on your sentence and submits that

I, therefore, cannot act upon it.  Given that that is the

attitude of the Crown, I will proceed on the basis which the

Crown suggests.  It seems to me that that is not in the public

interest.

There are a number of factors which mitigate the obvious

aggravating factor that your offence was committed inside

prison.  You pleaded guilty at your committal, held on the

15th of July 2005, and although you initially refused an

interview with the police, your plea of guilty is an early one

and a timely one and, I think, demonstrates some willingness

to cooperate in the administration of justice.  You are

presently aged 22 and were 21 at the time of the offence.  You

had a dysfunctional upbringing and were using heroin at the

age of 13.  Your criminal history, particularly in other

States, is very substantial, although much of it relates to

your time as a child.  Whether anything can be done in the

long term to assist you to throw off the drug habit, I do not

know.

In principle, an offence committed in prison of this nature

ought to attract a cumulative sentence of imprisonment, and

the Crown's submission in the present case is that the

appropriate sentence should be something in the range of 2 to

6  months' imprisonment to be imposed cumulatively.  The Crown

submits that I should recognise your cooperation with the

administration of justice - as in circumstances such as the

present I am bound by section 13 of the Penalties and

Sentences Act 1992 to do - by making a recommendation for

immediate eligibility for post-prison community-based release.

The fact is that pursuant to section 157 of the Act, I am

obliged to make a fresh recommendation for post-prison

community-based release.  In the circumstances of this case,

it is difficult to see what other recommendation might be made

than the one which is suggested by the Crown.  I rather doubt

whether a recommendation for immediate release grants any

great mitigation of sentence to you, simply because it is

difficult to see on what basis a recommendation for later

release could be made.  But there is a more significant

problem.  You have now been in prison for over two years.  To

my knowledge you have committed one offence.  I am also aware,

of course, that there is another offence which you have

committed, at least on the basis of what your girlfriend has

admitted to, which I am being obliged by the Crown to ignore

in the process of sentencing you.  The consequence of that is

that under section 139 of the Corrective Services Act, any

board considering your release for post-prison community-based

existence would have before it an offence committed in prison

which is not before me.  It would, therefore, under that

section, not be bound by my recommendation.

That is one factor of which I know which would tend to make

the recommendation useless.  There may be other factors which

would tend to make the recommendation useless: you may have

committed other offences; you may have behaved in a way which

would make it impossible to grant you post-prison

community-based release; there may be factors in the

guidelines operated by the Corrective Services Department

which bear upon your case and which would make it impossible

or improbable that you would be granted such release.

I have sought from the Crown an assurance that I have been

informed of any and all such significant matters which may

exist in relation to your case.  It seems to me that if I am

to take up the Crown's recommendation that your cooperation

with the administration of justice be recognised by a

recommendation, I must be assured that the recommendation will

not be an empty one; otherwise, you will have received no

mitigation of penalty at all, despite the provisions of

section 13 of the Act.  The Crown, despite an adjournment

granted for the purpose, has been unable to place the matters

before me which would be relevant to refusing any application

for post-prison community-based release.  I have been told

this morning that some of those matters, namely, your record

of offences in prison, and outcomes of courses undertaken or

refusals to undertake rehabilitative courses, and perhaps

professional reports, might be available in a week or so's

time, but that it is unlikely that any assurance could be

forthcoming that I had been told of all the significant

factors presently known to the Corrective Services Department

which would mitigate against the grant of such an application.

I protest at this approach to sentencing.  In my view, the

Crown is under an obligation to place before the Court all

matters material to sentence which are known to the Crown at

the time of sentencing.  It is not good enough for the Crown

to say to the Court: The matters are known, if they exist, to

another department, and they are not willing to give us the

information; or, It takes too long; or, It is too hard to get

the information.  The Court must be in possession of all

relevant information at the time of sentencing, particularly

in a case such as the present, where the Crown is urging that

the Court comply with the obligation under section 13 to

exercise its discretion by making a recommendation for

post-prison community-based release.

In the circumstances, I am not satisfied that I would comply

with that obligation by the process of making such a

recommendation.  The question then becomes how I should comply

with that obligation.  The only way, it seems to me, that that

is possible is by some mitigation of the head sentence.  When

I take into account the amount of delay which has been imposed

by reason of the time that you have been on remand for this

offence, it seems to me that the best way to mitigate that

head sentence is not by reducing the length - indeed, if I

were inclined toward the lower end of the scale, as I am, it

would be reducing it to very little at all - but by not

reducing the amount of the head sentence, rather making it

concurrent.

I appreciate that the net effect of that is that you will not

serve any more imprisonment than you otherwise would have

served.  That, I think, is a very undesirable consequence.  It

is most unfortunate that I have not been given information

which would be of assistance in adopting the recommendation

which the Crown has made, particularly since, at your age and

with your drug history, release under supervision would seem

to be a very desirable outcome of your imprisonment.

Desirable though that be, it is not possible.

I therefore sentence you to imprisonment for two months, such

imprisonment to be concurrent with the existing imprisonment.

In accordance with my obligation under section 157 of the

Penalties and Sentences Act, I recommend that you be eligible

for post-prison community-based release forthwith.

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