Rogers v Thackray
[2019] ACTSC 336
•27 November 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Rogers v Thackray |
Citation: | [2019] ACTSC 336 |
Hearing Dates: | 26 & 27 November 2019 |
DecisionDate: | 27 November 2019 |
ReasonsDate: | 3 December 2019 |
Before: | Ashford AJ |
Decision: | See [14] |
Catchwords: . | CRIMINAL LAW – APPEAL – Sentence – act of indecency in the presence of another without their consent – whether the Magistrate took early guilty plea into account – where discount not explicitly stated in the Magistrate’s reasons for decision – whether the sentence was manifestly excessive – appeal upheld CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – conviction confirmed – appellant re-sentenced |
Legislation Cited: | Crimes Act 1900 (ACT) s 60 Crimes (Sentencing) Act 2005 (ACT) s 37 Magistrates Court Act 1930 (ACT) s 208 |
Cases Cited: | Chatfield v Badman [2015] ACTSC 209 |
Parties: | Jason Anthony Rogers (Appellant) Daniel Thackray (Respondent) |
Representation: | Counsel J De Bruin (Appellant) V Wei (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 44 of 2019 |
Decision under appeal: | Court: ACT Magistrates Court Before: Special Magistrate Hunter Date of Decision: 7 August 2019 Case Title: Thackray v Rogers Court File Number: CC2019/4515 |
Ashford AJ:
Jason Anthony Rogers appears before me today appealing a decision from the Magistrates Court, made on 7 August 2019. The offence for which he was convicted was that on 17 April 2019 in the Australian Capital Territory, he committed an act of indecency in the presence of Juliana Johnson (the complainant) without her consent and being reckless as to whether the said complainant had consented thereto. The offence was committed pursuant to sub-s 60(1) of the Crimes Act 1900 (ACT), and the maximum penalty is seven years imprisonment.
The learned magistrate convicted the appellant and imposed a custodial sentence of 24 months imprisonment from 17 April 2019 to 16 April 2021, with a nonparole period of 12 months from 17 April 2019 to 16 April 2020. By amended notice of appeal, the grounds are summarised as follows: sub‑paragraph (a), her Honour has not explicitly stated that a plea of guilty has been taken into account and in doing so has not given sufficient weight to the early plea; sub-paragraph (b), her Honour failed to have proper regard to relevant sentencing considerations; and, sub-paragraph (c), that the sentence is manifestly excessive in the circumstances.
At the hearing before me the appellant relied particularly upon grounds (a) and (c). Helpful written submissions were provided by both parties and the parties spoke to those submissions and directed me to a number of authorities, which I have read. I shall not refer to them all. The orders sought are that the appeal be upheld, the conviction be confirmed, and the appellant be re-sentenced.
The appeal is brought pursuant to s 208 of the Magistrates Court Act 1930 (ACT) and the Supreme Court must have regard to the evidence given in the proceedings in the Magistrates Court.
The facts found, in brief form, are as follows. On 17 April 2019, the appellant was off the walking track on Mt Ainslie amongst some bushes.
He was lying on his back with his legs open and not wearing any pants. At about
3.40 pm, the complainant heard a voice. She turned and saw the appellant. She could see his erect penis and testicles. It appeared to her the appellant was masturbating. The appellant spoke to complainant in words to the effect of “do you want to suck my cock?” The complainant called police who apprehended the appellant around 4.35 pm that day. At that time the appellant was naked but on seeing police he put his pants on.
The appellant entered a plea of guilty on the third mention of the matter before the Court. The magistrate noted the appellant has prior criminal history of convictions for acts of indecency without consent. In 2017, he was convicted and sentenced to
22 months full-time custody. He also has a history of similar offending and for violent offences, drug and alcohol offences, stalking and the like. The pre-sentence report notes unsatisfactory compliance with supervision in the past. In respect of objective seriousness, the magistrate concluded the offence to fall towards the mid-range of objective seriousness, noting his recidivism.
The appellant submits the conduct falls somewhere between low to mid-range, saying this was not a deliberate act, and that he was discovered by chance. I have difficulty with that submission noting that the appellant drew himself to the attention of the complainant by inviting her to suck his cock and that the walking trail is, indeed, in a public place. Thus, I accept the offending to be as assessed by the magistrate, noting this to be a discretionary exercise. Objective circumstances and the subjective circumstances are all matters necessary to be taken into account in determining whether the sentence was within the available range.
I have been referred to a number of cases involving masturbation in the presence of a complainant. Some have similar features, but each must be determined on their own facts and I am satisfied that having considered all the evidence, the magistrate's characterisation of objective seriousness was open to her on the evidence. The magistrate was clearly concerned as to the prospects of rehabilitation of this offender and she gave regard to specific deterrence, protection of the community and to punishment. It is conceded that imprisonment was the only appropriate penalty for this offence.
In relation to any discount for the plea of guilty, the magistrate referred to the correct maximum term available as a penalty and she was aware the plea had been entered on the third mention before the Court. She stated that on a number of occasions and she also noted that a plea of guilty at an early opportunity clearly demonstrates some remorse. Unfortunately, she did not, at any time, quantify any percentage discount on sentence for that early plea and it is not clear what weight, if any, she gave to that plea.
Section 37 of the Crimes (Sentencing) Act 2005 (ACT) requires specification of that percentage discount. Such a failure does not invalidate a sentence but it does not assist in determining any weight given to the plea. In Chatfield v Badman [2015] ACTSC 209, Murrell CJ discussed the importance of complying with s 37, saying that it is highly desirable that a sentencing court give some indication of the manner in which a plea of guilty has been taken into account and also that it provides guidance to others who may be considering whether it would be advantageous to enter a plea of guilty, and the appellant was entitled to know what, if any, discount was required or was received.
Having thus considered all the submissions which have been made and the authorities to which I have been referred, I conclude that the failure of the magistrate to specify the percentage of any discount for the early plea, and the subsequent sentencing exercise that the penalty cannot be maintained as is without some quantification of that discount. I am satisfied that there is no alternative penalty other than full‑time imprisonment appropriate in the circumstances of this offender, but I am prepared to uphold the appeal in relation to the non-quantification of the percentage discount for the early plea.
In that regard, I am prepared to afford a 25% discount for the early plea. I confirm the conviction. I sentence the appellant to a period of imprisonment of 24 months but after a 25% discount for the early plea. The sentence is therefore reduced and amended to that of imprisonment for 18 months. I set a non-parole period of 9 months. Accordingly, the conviction is confirmed. The offender is sentenced to imprisonment for the period from 17 April 2019 to 16 October 2020, and I set a non-parole period from 17 April 2019 to 16 January 2020.
Orders
Accordingly, the orders of the Court are as follows:
(1)The appeal is upheld and the sentence imposed by Special Magistrate Hunter on 7 August 2019 is set aside.
(2)The conviction is confirmed.
(3)In respect of the offence of committing an act of indecency without consent (CC2019/4515), the appellant is re-sentenced to a term of imprisonment of 24 months, but after the application of the 25% discount for the early plea, the sentence is reduced to 18 months imprisonment.
(4)I set a nonparole period of 9 months, commencing on 17 April 2019 and expiring on 16 January 2020.
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ashford. Associate: Date: 3 December 2019 |
0