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Rodgerson v R

Rodgerson v R

Case [2022] VSCA 82 6 May 2022

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0115

PAUL DAVID RODGERSON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 April 2022
DATE OF JUDGMENT:	6 May 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 82
JUDGMENT APPEALED FROM:	[2021] VCC 155 (Judge Tinney)

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CRIMINAL LAW – Appeal – Sentence – Possess substance, equipment or instructions for commercial manufacture of controlled drugs – Business of trafficking marketable quantity of controlled drug – Possess controlled drug – Fail to comply with order under Crimes Act 1914 (Cth) s 3LA(2) – Total effective sentence 6 years, 5 months’ imprisonment, non‑parole period 3 years, 8 months – Whether judge impermissibly had regard to possession of MDMA when assessing gravity of first charge – Whether parity principle infringed – Whether sentence manifestly excessive – Whether judge erred in not taking into account family hardship as a mitigating circumstance – Application for extension of time – Extension of time granted – Leave to appeal granted in respect of ground concerning family hardship, but otherwise refused – Totaan v The Queen [2022] NSWCCA 75 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Stephen Andrianakis & Associates
For the Respondent	Ms K Breckweg with Mr N Modrzewski	Mr S Bruckard, Solicitor for Public Prosecutions (Cth)

KYROU JA:

Introduction and summary

On 9 October 2020, the applicant pleaded guilty to the charges set out in the table below and, on 18 February 2021, he was sentenced by a County Court judge as set out in that table:[1]
[1]DPP v Rodgerson [2021] VCC 155 (‘Rodgerson sentencing remarks’).

Charge Offence Maximum Sentence Cumulation

1 Possess substance, equipment or instructions for commercial manufacture of controlled drugs [Criminal Code (Cth) s 308.4(1)] 7 years 3 years 1 year, 3 months

2 Business of trafficking a marketable quantity of a controlled drug [Criminal Code ss 302.3(1) and 311.2] 25 years 5 years Base

3 Possess a controlled drug [Criminal Code s 308.1(1)] 2 years $750 fine —

4 Fail to comply with an order under Crimes Act 1914 (Cth) s 3LA(2) [Crimes Act s 3LA(5)] 2 years 6 months 2 months

Total effective sentence: 6 years and 5 months’ imprisonment

Non-parole period: 3 years and 8 months

Section 6AAA statement: 9 years and 5 months’ imprisonment with a non-parole period of 6 years and 8 months

Charge	Offence	Maximum	Sentence	Cumulation
1	Possess substance, equipment or instructions for commercial manufacture of controlled drugs [Criminal Code (Cth) s 308.4(1)]	7 years	3 years	1 year, 3 months
2	Business of trafficking a marketable quantity of a controlled drug [Criminal Code ss 302.3(1) and 311.2]	25 years	5 years	Base
3	Possess a controlled drug [Criminal Code s 308.1(1)]	2 years	$750 fine	—
4	Fail to comply with an order under Crimes Act 1914 (Cth) s 3LA(2) [Crimes Act s 3LA(5)]	2 years	6 months	2 months
Total effective sentence: 6 years and 5 months’ imprisonment
Non-parole period: 3 years and 8 months
Section 6AAA statement: 9 years and 5 months’ imprisonment with a non-parole period of 6 years and 8 months

Sixteen months earlier, the same judge sentenced the applicant’s co-offender, Robert Olczyk. Olczyk pleaded guilty to the charges set out in the table below on 21 December 2017 and, on 7 October 2019, he was sentenced as set out in that table:[2]
[2]DPP v Olczyk [2019] VCC 1641 (‘Olczyk sentencing remarks’).

Charge Offence Maximum Sentence Cumulation

1 Import a commercial quantity of a border controlled drug [Criminal Code s 307.1(1)] Life 7 years Base

2 Business of trafficking a marketable quantity of a controlled drug 25 years 4 years 1 year, 4 months

3 Attempt to manufacture…

Charge	Offence	Maximum	Sentence	Cumulation
1	Import a commercial quantity of a border controlled drug [Criminal Code s 307.1(1)]	Life	7 years	Base
2	Business of trafficking a marketable quantity of a controlled drug	25 years	4 years	1 year, 4 months
3	Attempt to manufacture…

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 Rodgerson v R

Details

AGLC: Rodgerson v The Queen [2022] VSCA 82
Case: [2022] VSCA 82
Decision Date: 6 May 2022

CaseChat Overview and Summary

In this case, the appellant, Rodgerson, was convicted on four charges related to drug trafficking and possession. The appeal against the sentence was heard by the Court of Criminal Appeal. The primary issues before the court were whether the sentencing judge had improperly considered the possession of MDMA when assessing the gravity of the first charge, whether the principle of parity was breached, whether the sentence was manifestly excessive, and whether the judge erred in not considering family hardship as a mitigating factor. Additionally, the court considered an application for an extension of time to file the appeal notice and grounds.

The court examined the sentencing remarks to determine if the judge had given undue weight to the possession of MDMA. The court found that while the sentencing judge did mention the possession of MDMA, this did not constitute an impermissible consideration as it was relevant to the gravity of the offence. The principle of parity was also assessed, and the court determined that there was no infringement as the sentence was proportionate to the seriousness of the offences. The court found the sentence to be neither manifestly excessive nor disproportionate, taking into account all relevant factors. The issue of family hardship was reviewed, and the court held that while family hardship is a relevant mitigating factor, the judge had not erred in not giving it significant weight in this case.

The appeal was allowed in part concerning the consideration of family hardship, but otherwise dismissed. The application for an extension of time to file the appeal notice and grounds was granted. The court noted that the appeal should have been filed within the statutory time limit, but the delay was deemed reasonable due to exceptional circumstances. The court acknowledged the complexity of the case and the need for additional time to properly prepare the appeal.

The final orders of the court included granting leave to appeal in respect of the ground concerning family hardship, denying leave on all other grounds, and granting an extension of time for the filing of the appeal notice and grounds. The case of Totaan v The Queen [2022] NSWCCA 75 was referenced to support the court's decision on the extension of time.

Orders