Rogan v The Queen
[2011] VSCA 66
•7 FEBRUARY 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0210
| DAVID MICHAEL ROGAN | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | ASHLEY and BONGIORNO JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 7 FEBRUARY 2011 |
| DATE OF JUDGMENT | 7 FEBRUARY 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 66 |
| JUDGMENT APPEALED FROM | R v Rogan (Unreported, County Court of Victoria, Judge Jenkins, 25 June 2010) |
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CRIMINAL LAW – Sentence appeal – Appellant pleaded guilty to trafficking in not less than a commercial quantity of MDMA – Appellant sentenced to two years and six months’ imprisonment with a non-parole period of 15 months – Sentencing judge commented during the plea hearing that she was not empowered to impose a wholly suspended sentence without finding some exceptional circumstances – Sentencing judge’s comments were erroneous as a matter of law – No indication that sentencing judge had laboured under erroneous belief whilst sentencing the appellant however – No error with respect to the synthesis of the appellant’s sentence – Appeal dismissed.
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| APPEARANCES: | COUNSEL | SOLICITORS |
| For the Appellant: | Mr M J Croucher | Markotich Reynolds Lawyers Pty Ltd |
| For the Crown: | Mr S Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
I invite Bongiorno JA to deliver the first judgment.
BONGIORNO JA:
On 11 June 2010, the appellant, David Michael Rogan, pleaded guilty to trafficking in not less than a commercial quantity of MDMA (ecstasy). He had been apprehended by police on 18 June 2009 with 536.9 grams of MDMA in his possession. Quite aside from his possession of the MDMA and the quantity of it, the surrounding circumstances made it patently obvious that he was engaged in trafficking that drug. There were 2,079 tablets and, at his home, materials for colouring MDMA tablets were found.
The appellant was sentenced by her Honour Judge Jenkins to a term of imprisonment of two years and six months with a non-parole period of 15 months. Ancillary orders for disposal, forfeiture and the taking of a forensic sample were also made.
On 24 September 2010, Rogan was granted leave to appeal by Buchanan JA on the ground that a comment made by the sentencing judge in the course of the plea hearing, to the effect that she could not impose a suspended sentence for this offence other than in exceptional circumstances, may have given rise to a sentencing error.
In this Court the appellant argued two grounds of appeal.
Ground 1
The first ground argued by counsel for the appellant was that in (implicitly) sentencing Rogan in the belief that she was ‘not empowered to give a wholly suspended sentence for such a serious offence in the circumstances without finding some exceptional circumstances’ the sentencing judge erred. Alternatively, her Honour ought to have concluded that there were in any event exceptional or unusual circumstances that would allow or require the imposition of a wholly or
partly suspended sentence.
In his plea in mitigation on Rogan’s behalf before the sentencing judge, his counsel had argued that a wholly suspended sentence or an intensive corrections order should be imposed rather than a sentence which would require him to be immediately incarcerated. In the course of discussion her Honour said:
It’s a tragic situation where obviously such a good supportive family will be devastated. Are devastated. The need for general deterrence in these circumstances is paramount and it is not sufficient for – and indeed I am not empowered to give a wholly suspended sentence for such a serious offence in the circumstances, without finding some exceptional circumstances and, in my view, this isn’t a case of exceptional circumstances, so I do have to indicate that it is more likely than not there will be immediate custody.
It is difficult to ascertain with precision exactly what the sentencing judge meant by these remarks. Taken at face value, the statement that she was not empowered to impose a wholly suspended sentence other than consequent upon a finding of exceptional circumstances is erroneous as a matter of law. Neither the Sentencing Act 1991 nor the Drugs, Poisons and Controlled Substances Act 1981 contains any provision which places such a restriction on the power of a court to suspend a sentence. Her Honour did not repeat that statement in the course of her sentencing remarks, but rather rejected the appellant’s argument in support of a suspended sentence or an intensive corrections order. Her Honour specifically referred to the submission of counsel for the appellant as to those dispositions and stated simply that she disagreed with it.
In his submissions on ground 1, counsel for the appellant referred to a number of cases decided by this Court which referred to the seriousness of the offence of trafficking in a commercial quantity of drugs and to the fact that an immediate term of imprisonment would usually be imposed for such trafficking. None of those cases, he submitted, goes as far as to say that a judge is not empowered to impose a wholly suspended sentence without finding exceptional circumstances. This submission is also correct, but nothing in her Honour’s sentencing remarks suggests that she did sentence the appellant whilst labouring under the erroneous belief that she was not empowered to impose a wholly suspended sentence other than in the circumstances referred to. Neither the sentence itself nor anything she said in the course of her sentencing remarks would lead to that conclusion. It is equally consistent with what the sentencing judge did and the reasons she gave for doing it that her comment during the plea was no more than hyperbole to emphasise the seriousness with which she rightly viewed the appellant’s offending. She also referred to general deterrence in the same comment, describing it as ‘paramount’. Again, I am satisfied that this hyperbolic description was merely a matter of emphasis. It is in a judge’s sentencing remarks that one expects to find the reasons for the imposition of a particular sentence, not in the exchanges that frequently occur between bench and bar in the course of argument. As counsel for the Crown pointed out in this Court, the sentencing judge made it clear at the end of the plea when fixing the date for sentence that she would ‘seriously peruse and consider’ all the material submitted before deciding on an appropriate disposition.
The second part of the appellant’s argument in respect of ground 1 was that the sentencing judge ought to have found exceptional circumstances in any event so as to satisfy the erroneous criterion he argued she had earlier embraced. Two things can be said about this argument. First, it is unnecessary to address it, as I am satisfied that the sentencing judge did not fetter her discretion in the way suggested. Secondly, in any event, although there was much that could be said in the appellant’s favour – and much was said and adverted to by the sentencing judge in her sentencing remarks – when weighed against the gravity of the offence to which he has pleaded guilty there were no exceptional circumstances.
In arguing this part of ground 1, counsel for the appellant criticised the sentencing judge’s reference to specific deterrence and the protection of the community and submitted that there was no need for her to have given such factors substantial weight. It was submitted that the appellant had a ‘good defence’ to the charge to which he pleaded guilty. This ‘good defence’ depended upon a jury being unprepared to accept that in all the circumstances he knew that he was in possession of a commercial quantity of MDMA. Counsel for the appellant argued that a quantity of 536 grams was so little over the amount required for a commercial quantity that the Crown would have difficulty in proving the necessary mental element in the offence, namely that he knew he was in possession of a qualifying amount. Whatever might be the chance of the Crown failing to prove that mental element the fact is that the appellant pleaded guilty rather than take his chance of acquittal on that ground. There is nothing in this argument.
Both parts of ground 1 must be rejected.
Ground 2
This ground asserted three specific errors in the way the sentencing judge acted in synthesising the appellant’s sentence. The first was that her Honour placed undue emphasis on general deterrence, denunciation, specific deterrence and the protection of the community in reaching the sentence which she did. In arguing this ground, counsel for the appellant referred to the use by the sentencing judge of the word ‘profound’ adjectivally with respect to the need to reflect general deterrence and denunciation in respect of the appellant’s conduct.
It is inappropriate to subject the sentencing judge’s remarks to the degree of scrutiny engaged in by counsel for the appellant. Whilst the use of the word ‘profound’ might be able to be criticised as possibly overstating the importance of general deterrence and denunciation in the synthesis of a sentence for drug trafficking, in these circumstances there is nothing in the sentence itself which would suggest in any way that her Honour acted erroneously in respect of these sentencing factors. The findings she made were open and the sentence itself bespoke no error in this regard.
The second argument put by counsel under ground 2 was that it was not open to the sentencing judge to find that the appellant was at ‘some risk of re-offending’. In making such a finding her Honour had referred to the appellant’s background
including his family circumstances. In making this finding her Honour was acting on a reasonable interpretation of the evidence. In any event, having regard to the sentence which she imposed, the argument that she was in error in making such comments must be rejected.
Finally with respect to ground 2, counsel for the appellant argued that the sentencing judge should have focused far more on the appellant’s youth and prospects of rehabilitation and on the principle of parsimony than she did. There is no warrant for concluding from her Honour’s sentencing remarks that she was in error in this way either. She referred to the fact that the appellant was a youthful offender and there is no doubt she took this into account in determining the appellant’s sentence.
Conclusion
Neither of the grounds of appeal in this case are made out. Further, even if they had been made out, I am not satisfied that on any re-sentencing a lesser sentence than that which her Honour imposed would be warranted. The appeal should be dismissed.
ASHLEY JA:
I agree.
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