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Regina v Rogerson

Regina v Rogerson

Case [2005] NSWCCA 12 4 February 2005

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CITATION:
Regina v Rogerson [2005] NSWCCA 12

HEARING DATE(S): 4/2/05

JUDGMENT DATE:

4 February 2005

JUDGMENT OF:
Dunford J at 55; Bell J at 1

DECISION:
1. Grant leave to bring the appeal; 2. Allow the appeal and quash the sentence imposed in the District Court. In lieu thereof (taking into account the offence on the Form 1); Sentence the applicant to a non-parole period of twenty-six months to commence on 17 June 2003. The non-parole period will expire on 16 August 2005. Specify a balance of term of twenty-five months. The balance of the sentence will expire on 16 September 2000; the total term of the sentence being thus one of four years and three months imprisonment.

LEGISLATION CITED:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
Regina v Brett (2004) NSWCCA 372
Regina v Grbin (2004) NSWCCA 220
Regina v Ponfield (1999) 48 NSWLR 327
Regina v Sutton (2004) NSWCCA 225
Regina v Thompson (2000) 49 NSWLR 383

PARTIES:
Regina (Respondent)
Scott Allan Rogerson (Applicant)

FILE NUMBER(S):
CCA 2004/2534

COUNSEL:
B Knox SC (Crown)
M Johnson (Applicant)

SOLICITORS:
S Kavanagh
SE O'Connor (Applicant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/3312

LOWER COURT JUDICIAL OFFICER:
Maguire DCJ

2004/2534

DUNFORD J
BELL J
Friday 4 February 2005

Regina v Scott Allan Rogerson

Judgment

1 BELL J: This is an application for leave to appeal against the severity of a sentence imposed on the applicant by his Honour Judge Maguire QC (the Judge) in the District Court at Campbelltown on 24 March 2004.

2 The applicant adhered to a plea of guilty to an indictment that charged him that on 17 June 2003 at Fairfield, in the company of David Kelly, he did break and enter a dwelling house and did commit a serious indictable offence therein, namely, stealing. The offence is provided by s 112(2) of the Crimes Act 1900. It carries a maximum sentence of twenty years imprisonment. The provisions of Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999 with respect to the standard non-parole period apply to this offence, it having been committed after 1 February 2003. The standard non-parole period, representing the non-parole period for an offence in the middle range of objective seriousness applicable to the offence of aggravated breaking, entering and stealing, is five years.

3 In addition to the offence to which he pleaded guilty, the applicant asked the Judge to take into account one offence on a Form 1 pursuant to the provisions of s 33 of the Crimes (Sentencing Procedure) Act. This was an offence of possession of housebreaking implements. The implements were particularised as a jemmy bar and a carpenter's chisel. This offence was associated with the principal offence; the implements were in the applicant's possession when he was arrested at the scene.

4 The facts upon which the applicant and his co-offender were…

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 Regina v Rogerson

Details

AGLC: Regina v Rogerson [2005] NSWCCA 12
Case: [2005] NSWCCA 12
Decision Date: 4 February 2005

CaseChat Overview and Summary

In the case of Regina v Rogerson, the applicant, Scott Allan Rogerson, appealed against the severity of the sentence imposed by the District Court for the offence of aggravated breaking, entering, and stealing. The applicant had pleaded guilty to the charge, which involved him and his co-offender, David Kelly, breaking into a house and stealing property while in the company of each other. The applicant also asked the District Court to consider an offence of possession of housebreaking implements, which was associated with the principal offence.

The legal issues in this case involved the sentencing principles and the parity principle for co-offenders. The applicant argued that the District Court judge erred in not appropriately considering the utilitarian value of his guilty plea and that the disparity between his sentence and that of his co-offender, Kelly, was excessive and led to a sense of grievance. The Crown conceded that the District Court judge had erred in considering the strength of the prosecution case in determining the discount for the guilty plea but argued that no lesser sentence was warranted in law.

The Court of Criminal Appeal reviewed the sentencing principles and considered the mitigating and aggravating factors for both the applicant and his co-offender, Kelly. The Court acknowledged that the difference in the sentences for the two co-offenders was disproportionate and led to a justifiable sense of grievance. The Court allowed the appeal, quashed the original sentence, and imposed a new sentence of four years and three months imprisonment, with a non-parole period of twenty-six months.

The final orders of the Court were as follows:

1. Grant leave to bring the appeal.
2. Allow the appeal and quash the sentence imposed in the District Court.
3. In lieu thereof, sentence the applicant to a non-parole period of twenty-six months to commence on 17 June 2003, with the non-parole period expiring on 16 August 2005, and a balance of term of twenty-five months, with the balance of the sentence expiring on 16 September 2000, resulting in a total term of four years and three months imprisonment.

Orders