Rogan v The Queen

[2011] VSCA 66

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:

1. I invite Bongiorno JA to deliver the first judgment.

BONGIORNO JA:

1. 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. 

1. 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.

1. 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.

1. In this Court the appellant argued two grounds of appeal. 

Ground 1

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.

1. In his plea in mitigation on Rogan’s behalf before the sentencing judge, his counsel had argued that a wholly…