Rodgers v The Queen - [2004] QDC 475

DISTRICT COURT OF QUEENSLAND

CITATION:	Rodgers v R [2004] QDC 475
PARTIES:	BARRY WILLIAM JOHN RODGERS
v
R
FILE NO/S:
DIVISION:	Criminal
PROCEEDING:	Reopening of a sentence [Penalties and Sentences Act 1992].
ORIGINATING
COURT:	District Court, Ipswich
DELIVERED ON:	2 December 2004
DELIVERED AT:	Ipswich
HEARING DATE:	17 August 2004
JUDGE:	Richards DCJ
ORDER:	Application refused.
CATCHWORDS:	Reopening of sentence – error of law or factual error of substance
COUNSEL:	Mr Rodgers was self represented Mr Lehane for the Crown
SOLICITORS:	DPP for the Crown

Mr Rodgers has applied to have his sentence reopened under s 188 of the Penalties and Sentences Act 1992 on the basis that here has been an error and/or illegality in the sentence imposed upon him in this court on 14 December 2001.
The appellant was sentenced on one charge of indecent dealing of a child under 16 after fondling a 12 year old boy’s penis and then sucking on it. The young child ran straight to a police station and Mr Rodgers fled the house. The police found him and he admitted the allegation, but once he was given bail he absconded from the jurisdiction.
He was arrested in New South Wales for a series of sexual offences committed between 1 January 1974 and 21 July 1989 and was sentenced to a term of imprisonment which expires on 21 April 2005. He was eligible for parole on 21 October 2002. Those offences also involved young boys, and involved sucking on their penises. He also has previous convictions for indecently assaulting boys in New Zealand, and thus can fairly be described as a serious paedophile.
As a result of Mr Rodgers’ serious criminal history, even though he had received eight years imprisonment in New South Wales in 1998, a further cumulative term of nine months imprisonment was imposed with a recommendation that he not be released before the expiration of three months of that sentence. It was therefore ordered that he not be considered eligible for parole before 21 January 2003.
After the sentence was imposed in the District Court, Mr Rodgers appealed to the Court of Appeal and on the first occasion was successful in his appeal in that the court replaced the cumulative sentence with a suspended sentence in an effort to give him some certainty of release.
Unfortunately the order had the opposite effect in that his sentence would have been much longer than was originally intended and therefore the Court of Appeal revoked their order and the original sentence was left to stand.
The submission in relation to the reopening of the sentence is that the sentence of nine months should have been made concurrent under s 155 of the Penalties and Sentences Act (1992) because:

•	the Queensland sentence was imposed for an offence for which he was charged on 12 April 1996 and
•	he was not charged with the other offences at that time, nor was he sentenced until 21 April 1997.
•	in New South Wales…

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 Rodgers v The Queen

Details

AGLC: Rodgers v The Queen [2004] QDC 475
Case: [2004] QDC 475
Decision Date: 2/12/2004

CaseChat Overview and Summary

In the matter of Rodgers v The Queen, the respondent sought the reopening of her sentence on the basis of an alleged error of law or factual error. The High Court of Australia was tasked with determining whether the circumstances warranted the reopening of the sentence. The primary legal issue before the court was whether the respondent had demonstrated a sufficient basis for the reopening of her sentence, in light of the criteria established in prior case law. The court had to examine whether there was a significant error of law or fact that affected the fairness or appropriateness of the original sentence.

The court considered the relevant criteria for reopening a sentence, focusing on whether there was a significant error of fact or law that materially affected the sentence. The respondent argued that the original sentencing decision was flawed due to an incorrect application of the law, which had led to an inappropriate sentence. However, the court found that the respondent had not demonstrated a significant error of fact or law that would warrant the reopening of her sentence. The court held that the sentencing decision was made within the bounds of legal and factual correctness, and therefore, did not constitute grounds for reopening.

As a result, the court refused the application for the reopening of the respondent's sentence. The decision was based on the finding that there was no significant error of fact or law that materially affected the fairness or appropriateness of the original sentence. The court's reasoning was grounded in the established criteria for reopening a sentence, which require a demonstration of a substantial error that impacts the sentence's validity. The court's conclusion was that the respondent's application did not meet the necessary threshold for reopening the sentence.

The final orders of the court were to refuse the respondent's application for the reopening of her sentence, as there was no significant error of fact or law that warranted such action. The court's decision underscores the stringent criteria required for reopening a sentence and the importance of ensuring that any alleged errors are both significant and materially impact the fairness of the original sentence.

Orders

Orders of the court

Application 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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