| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0115 |
| PAUL DAVID RODGERSON | Appellant |
| v | |
| THE QUEEN [NO 2] | Respondent |
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| JUDGES: | EMERTON P, KYROU and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 July 2022 |
| DATE OF JUDGMENT: | 5 August 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 154 |
| 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 erred in not taking into account family hardship as a mitigating circumstance – Whether exceptional circumstances required under s 16A(2)(p) of Crimes Act – Appeal dismissed – Markovic v The Queen (2010) 30 VR 589, Totaan v The Queen (2022) 400 ALR 578, Mohamed v The Queen [2022] VSCA 136 considered.
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| Counsel | |||
| Appellant: | Mr PJ Smallwood with Mr T Bourbon | ||
| Respondent: | Ms K Breckweg with Mr N Modrzewski | ||
Solicitors | |||
| Appellant: | Stephen Andrianakis & Associates | ||
| Respondent: | Mr S Bruckard, Solicitor for Public Prosecutions (Cth) | ||
EMERTON P
KYROU JA
T FORREST JA:
Introduction and summary
On 9 October 2020, the appellant pleaded guilty to one charge of possessing a substance, equipment or instructions for the commercial manufacture of controlled drugs,[1] one charge of conducting a business of trafficking a marketable quantity of a controlled drug,[2] one charge of possessing a controlled drug,[3] and one charge of failing to comply with an order under s 3LA(2) of the Crimes Act 1914 (Cth).[4]
[1]Criminal Code (Cth), s 308.4(1). The maximum penalty is 7 years’ imprisonment.
[2]Criminal Code, ss 302.3(1) and 311.2. The maximum penalty is 25 years’ imprisonment.
[3]Criminal Code, s 308.1(1). The maximum penalty is 2 years’ imprisonment.
[4]Crimes Act, s 3LA(5). The maximum penalty is 2 years’ imprisonment.
On 18 February 2021, a County Court judge sentenced the appellant to a total effective sentence of 6 years and 5 months’ imprisonment and fixed a non-parole period of 3 years and 8 months.[5] The individual sentences for each charge and the orders for cumulation made by the judge are set out at [63] below.
[5]DPP v Rodgerson [2021] VCC 155 (‘Sentencing remarks’).
The appellant sought leave to appeal against his sentence on three grounds, namely, that the judge erred in assessing the gravity of the offending, parity and manifest excess.[6] Shortly prior to the hearing of the application for leave to appeal, the appellant sought leave to add the following new ground:
The probable effect that any sentence or order under consideration would have on any of the [appellant’s] family or dependants, which was a relevant sentencing consideration pursuant to s 16A(2)(p) of the Crimes Act 1914 (Cth), was not taken into account.
[6]In these reasons, proposed grounds of…
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- Case
- [2022] VSCA 154
- Decision Date
CaseChat Overview and Summary
The Court of Appeal held that the County Court judge did not err in not taking into account family hardship as a mitigating factor. In Markovic v The Queen, the High Court held that family hardship does not constitute exceptional circumstances unless there are special features that distinguish it from ordinary family hardship. The Court of Appeal found that the County Court judge had given appropriate weight to the fact that Rodgerson had children and a partner, but did not consider that the family hardship was exceptional. The Court held that the County Court judge was entitled to conclude that the family hardship was not sufficiently exceptional to warrant a reduction in sentence under section 16A(2)(p) of the Crimes Act. The Court further found that the sentence imposed was not manifestly excessive or inappropriate.
In conclusion, the Court of Appeal dismissed the appeal and affirmed the sentence imposed by the County Court. The Court held that the County Court judge did not err in not considering family hardship as a mitigating factor, and that the sentence imposed was not manifestly excessive or inappropriate. The Court noted that the sentence reflected the seriousness of the offences committed by Rodgerson and the need to deter others from engaging in similar conduct.
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