Rodgerson v The Queen [No 2] - [2022] VSCA 154

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…

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.

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Details

Case: [2022] VSCA 154
Decision Date: 5 August 2022

CaseChat Overview and Summary

The respondent, Rodgerson, appealed against his sentence in the County Court of Victoria, which had convicted him of drug-related offences. The offences included possessing a substance, equipment, or instructions for the commercial manufacture of a controlled drug, engaging in the business of trafficking a marketable quantity of a controlled drug, and possessing a controlled drug. Additionally, Rodgerson failed to comply with an order under section 3LA(2) of the Crimes Act 1914 (Cth). The County Court imposed a total effective sentence of 6 years and 5 months imprisonment, with a non-parole period of 3 years and 8 months. The central issue before the Court of Appeal was whether the County Court judge erred in not considering family hardship as a mitigating circumstance, and if such hardship constituted exceptional circumstances under section 16A(2)(p) of the Crimes Act.

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.

Orders