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Rogers v The Queen

Rogers v The Queen

Case [2004] WASCA 147 2 July 2004

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: ROGERS -v- THE QUEEN [2004] WASCA 147

CORAM: MALCOLM CJ
TEMPLEMAN J
MILLER J

HEARD: 1 APRIL 2004

DELIVERED : 2 JULY 2004

FILE NO/S: CCA 61 of 2003

BETWEEN: STEPHEN ALEXANDER ROGERS
Applicant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram   :VIOL DCJ
File Number             :  IND 1208 of 2002

Catchwords:

Criminal law - Sentencing - Sexual penetration of a de facto child - Criminal Code, s 329(2) - Plea of guilty - Whether sentence of 8 years excessive - Turns on own facts

Legislation:

Criminal Code, s 329(2), s 689(3)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr R E Cock QC & Mr D N Ryan

Solicitors:

Applicant: In person
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

"B" v The Queen [2002] WASCA 236
Bosworth v The Queen [2004] WASCA 43
BRS v The Queen (1997) 191 CLR 275
Cameron v The Queen (2002) 209 CLR 339
Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
Hoch v The Queen (1988) 165 CLR 292
Podirsky v R (1990) 3 WAR 128
R v Chilvers [2003] WASCA 87
R v Hough [2002] WASCA 42
S v The Queen [2001] WASCA 245
Varney v Parole Board of Western Australia (2000) 23 WAR 187
Woods v The Queen (1994) 14 WAR 341

Case(s) also cited:

Nil

MALCOLM CJ: In my opinion, this application for leave to appeal against sentence should be refused for the reasons to be published by Miller J. These were serious offences of their kind in which the applicant grossly abused his parental responsibility by sexually penetrating the vagina of his stepdaughter in the context of a sexual relationship which he established with the complainant. In my opinion, while the sentences of 8 years imposed for each of the offences to be served concurrently were substantial, they were fully justified by their nature and the circumstances in which they were committed, making due allowance for the applicant's pleas of guilty.
TEMPLEMAN J: The applicant was charged with five sexual offences alleged to have been committed against a child "who he then knew to be his de facto child" and who was at the material time, under the age of 16 years. The offences were all alleged to have been committed at Rangeway, near Geraldton. It was alleged that the offences the subject of counts 1, 2 and 3 had been committed on dates unknown between 13 January 2000 and 31 May 2000. The offences the subject of counts 4 and 5 were alleged to have been committed on dates unknown between 8 February 2000 and 9 February 2001.
The offences alleged against the applicant were as follows:
1.The penetration of the complainant's vagina with his finger.
2.The penetration of the complainant's vagina with his penis.

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 The Queen

Details

AGLC: Rogers v The Queen [2004] WASCA 147
Case: [2004] WASCA 147
Decision Date: 2 JULY 2004

CaseChat Overview and Summary

Rogers was convicted of sexual penetration of a de facto child. He appealed against the severity of the sentence, arguing that the 8-year term imposed was excessive. The Court of Appeal was tasked with determining whether the trial judge erred in his assessment of the appropriate sentence for the offence.

The primary legal issue before the Court was whether the sentence imposed by the trial judge was manifestly excessive. The court was required to consider the principles of sentencing in relation to such offences, particularly those outlined in the Criminal Code. The Court had to examine the nature and circumstances of the offence, the aggravating and mitigating factors, and the precedents set by previous cases.

The Court of Appeal found that the trial judge had considered the relevant principles and circumstances of the case. The judge had acknowledged the gravity of the offence and the impact on the victim, but also considered the offender's background and the mitigating factors presented. The Court held that the sentence was not manifestly excessive and affirmed the trial judge's decision. The appeal was dismissed, and the original sentence was upheld.

No further orders were made.

Orders