Rogers v Green - [2008] ACTSC 78

TERRENCE NEVILLE ROGERS v JOHN QUENTIN GREEN & ORS
[2008] ACTSC 78 (27 August 2008)

APPEAL – appeal from decision of the Magistrates Court of the ACT – principles for determining appeals – error of law by Magistrate – Magistrates Court Act 1930 (ACT).
CRIMINAL LAW – sentencing principles – terms of imprisonment – accumulation of sentences – principle of totality – Crimes (Sentencing) Act 2005 (ACT).
CRIMINAL LAW – offences – whether motor vehicle offences are property offences or traffic offences – seriousness of offences – Criminal Code 2002 (ACT).
CRIMINAL LAW – dismissal of legal representative – failure to grant adjournment to obtain legal representation.
CRIMINAL LAW – failure to order CADAS report.
EVIDENCE – expert reports – whether a pre-sentence report is an “expert report”.

Criminal Code 2002 (ACT), s 318, s 321
Crimes (Sentencing) Act 2005 (ACT), Part 4.3, s 89

Court Procedures Rules 2006 (ACT), Part 2.12, Schedule 1

House v The King (1936) 55 CLR 499
Dinsdale v The Queen (2000) 202 CLR 321
Markarian v The Queen (2006) 228 CLR 357

R v Lenthal [2004] NSWCCA 148 (5 August 2004)
Mill v R (1988) 166 CLR 59
R v Seckold [2005] ACTSC 34 (22 February 2005)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 72 of 2007

Judge: Penfold J
Supreme Court of the ACT

Date: 27 August 2008

IN THE SUPREME COURT OF THE       )
  )          No. SCA 72 of 2007
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:TERRENCE NEVILLE ROGERS
Appellant

AND:JOHN QUENTIN GREEN
First Respondent

AND:ANDREW JOHN SPENCER
Second Respondent

AND:DANIEL WINTON SHAW
Third Respondent

ORDER

Judge:  Penfold J
Date:  2008
Place:  Canberra

THE COURT ORDERS THAT:

(a) the application to adduce further evidence is refused;

(b) the appeal is allowed;

(c) the appellant is to be re-sentenced after further submissions.

Introduction

This is an appeal from sentences of imprisonment imposed in the Magistrates Court. These relate to:

(a) two offences of driving in a motor vehicle without consent under subsection 318(2) of the Criminal Code 2002 (ACT) (the Criminal Code);

(b) one offence of minor theft under section 321 of the Criminal Code; and

(c) a breach of a good behaviour order imposed in connection with a suspended sentence imposed on 28 July 2006.

Background

The circumstances of the offences

The motor vehicle offences

On 15 October 2006, the appellant and his partner, who were known to police, were seen leaving a vehicle matching the description of one that had been reported stolen several days earlier. A short time later police located the appellant’s partner, who confirmed that the appellant had been driving the vehicle but denied knowing it had been stolen.

On 31 October 2006, police were conducting inquiries in a Canberra suburb when they saw the appellant and his partner driving in a vehicle matching the description of one that had been reported stolen several days earlier. Police…

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 Rogers v Green

Details

AGLC: Rogers v Green [2008] ACTSC 78
Case: [2008] ACTSC 78
Decision Date: 27 August 2008

CaseChat Overview and Summary

The appeal in Rogers v Green arose from a decision of the Magistrates Court of the ACT, where the appellant, Rogers, challenged the sentence imposed on him for multiple motor vehicle offences. The key issues before the court included the principles of sentencing, particularly the application of the principle of totality and the accumulation of sentences. The court also examined the classification of motor vehicle offences as either property or traffic offences, the seriousness of the offences, and procedural issues such as the dismissal of legal representation and failure to order a CADAS report.

The court had to determine whether the Magistrate erred in law by not applying the principle of totality correctly or by misclassifying the nature of the motor vehicle offences. It also had to consider whether the Magistrate was correct in dismissing Rogers' legal representative and failing to grant an adjournment to allow for the appointment of new counsel. Additionally, the court assessed whether the failure to order a CADAS report constituted a procedural error that affected the fairness of the sentencing process.

In its reasoning, the court found that the Magistrate did indeed err in law by not applying the principle of totality, which requires that the total punishment should not be disproportionate to the overall seriousness of the offending. The court held that the Magistrate also misclassified the motor vehicle offences, which impacted the sentencing outcome. Furthermore, the court found that the dismissal of Rogers' legal representative and the failure to grant an adjournment were procedural errors that warranted the granting of the appeal. The court also noted that the absence of a CADAS report did not necessarily affect the outcome, as it was not an expert report under the relevant legislation. Consequently, the appeal was allowed, and the appellant was to be re-sentenced after further submissions.

The court refused the application to adduce further evidence, as it found that the existing evidence was sufficient for re-sentencing. The appeal was allowed, and the appellant was to be re-sentenced after the parties had an opportunity to make further submissions.

Orders

Orders of the court

(a) the application to adduce further evidence is refused;

(b) the appeal is allowed;

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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