R v Rogers [2008] VSCA 114

2 Stephen Rogers appeals, by leave, against sentence passed in the County Court on 2 March 2007. On that day, having earlier pleaded guilty, he was sentenced as follows:

Attempt to pervert the course of justice[1]

Traffic drug of dependence (phenyl-2-propanone)[2]

Traffic drug of dependence (amphetamine)[3]

Possess drug of dependence (cannabis L)[4]

3 The judge directed that 3 months of the sentence imposed on count 1 and 12 months of the sentence imposed on count 2 be served cumulatively on the sentence on count 3. The total effective sentence was thus 4 years and 9 months. His Honour fixed a non-parole period of 3 years, made a declaration in respect of pre-sentence detention, and made certain ancillary orders.

4 There is a single ground of appeal: That the learned sentencing judge erred in his assessment of the prospects of the appellant's rehabilitation, thereby erroneously omitting to give any or any sufficient weight to this factor in the imposition of the head sentence and the non-parole period. Particulars of that ground are stated as follows:

(a) The Appellant had not re-offended in the 33 months between his offending and the plea hearing.

(b) The Appellant's family responsibilities had changed during this time, with the birth of a daughter.

(c) The Appellant had an ongoing productive business that he had built over many years of hard work; that business would continue during his incarceration.

(d) Character evidence to the effect that the Appellant had learned the errors of his ways and would not re-offend, contrary to the finding of the Learned Sentencing Judge.

5 Since the appellant's conviction on counts 4 and 5 led to no sentence, they may be disregarded except to the extent that they bore (if at all) upon assessment of relevant sentencing considerations in respect of counts 1-3.

6 The appellant, a man born 17 June 1962, and so now aged 46, was at pertinent times the principal of a trucking and crane hire company, Cadpro Transport Pty Ltd.

7 On 13 April 2004 overhead high voltage lines at an intersection close to Cadpro's premises were torn from their power poles. The damage was done by a Cadpro crane. Over a period of two days the appellant and a number of his employees, including men named Savage and Hewat, took steps to ensure that the Cadpro vehicle was not implicated in the incident, and to implicate the vehicles of others. Lies were told, an attempt was made to conceal damage to the crane, and what amounted to the warning-off of a witness was given. The appellant was evidently concerned that his company might face large claims for damages. In fact, his concern was misplaced. Direct and consequential damage only amounted to about $18000 in total; and in any event the company was insured against the loss. The attempt to prevent disclosure of the true situation, in respect of which the appellant was the prime mover, constituted the circumstances of count 1.

8 On 3 June 2004 investigators conducted a search of the appellant's house. They found three bottles containing phenyl-2-propanone ('P2P'). The liquid mass weighed 936gms. The substance, which is a prohibited chemical, is used in the production of methylamphetamine. This discovery was the basis for count 2.

9 Investigators also found seven quantities of amphetamine weighing in all 191.4gms (the subject-matter of count 3); and they found a small quantity of cannabis L and a single ecstasy tablet ( the subject-matter of counts 4 and 5).

10 The quantity of P2P was a traffickable quantity, but was well short of a commercial quantity, which is 2 kgs.

11 The quantity of pure amphetamine was some 120-130gms. That is a traffickable quantity, but considerably less than the trigger amount, 250gms, which constitutes a commercial quantity.

12 Trafficking in respect of each of counts 2 and 3 was by possession for sale.

13 Between December 2003 and April 2004, a telephone intercept had been in place in respect of the appellant. It provided no evidence that he had dealt in drugs in that period.

14 The automatic forfeiture quantity referable to amphetamine is 75gms. Prior to the plea, the appellant agreed with the authorities upon a forfeiture amount of $200,000. He made payment, having borrowed on the security of his home in order to do so.

15 The appellant was arrested and interviewed on 3 June 2004. He did not reply to any question which was of substance.

16 He was bailed. He remained on bail up to the time of the plea, abiding all bail conditions.

17 He was committed for trial in early October 2005.

18 Then followed negotiations. Ultimately, a presentment was filed containing the five counts to which the appellant pleaded guilty. According to counsel on the plea, a large number of other charges, and the automatic forfeiture issue, were resolved in the course of the negotiations.

19 The time elapse between the appellant being charged and his being sentenced was some 33 months.

20 The judge concluded that the appellant's role in respect of the offence constituted by count 1 was greater than that of Savage, and of Hewat, who was convicted after trial on two counts. The other men, the judge concluded, acted for the appellant's protection and benefit. The appellant had orchestrated the response to the incident.

21 In respect of count 2, the judge recorded the quantity of P2P found at the appellant's premises. He then set out, and rejected, an exculpatory account which had been advanced by appellant's counsel from the bar table: that the substance had been left behind by a former friend who had stayed with the appellant until a few weeks before 3 June 2004; and that the appellant did not know just what was in the bottles. His Honour said:

I do not accept it. I positively reject it and, ... unfortunately, it is counter indicative of remorse or rehabilitation.

22 In respect of count 3, the judge recorded the quantity of methylamphetamine found at the appellant's premises. He then set out, and also rejected, an account, exculpatory by intent, which had been advanced from the bar table in respect of that offence: that the drug had been purchased by the appellant for his own use and for the use of his friends. The learned judge said that -

Your false explanation is counter suggestive of remorse or rehabilitation.

23 As to the appellant's antecedents, and circumstances going in mitigation, the learned sentencing judge noted that -

• He had a good work record, with his own business.

• He had borrowed $200,000 to pay the agreed confiscation order.

• There had been an elapse of some three years between charge and sentence.

• The appellant had in the past engaged in voluntary charitable work, and had assisted at least one friend in need.

• The appellant had 'numerous prior convictions', but most were of some age, and they were not of great consequence.[6]

• The appellant had pleaded guilty to an appropriate presentment.

24 Immediately before imposing sentence, his Honour said this: -

I am not convinced that you are remorseful or that you are unlikely to offend again.

25 Counsel submitted that the judge had found that the appellant was not remorseful, and that he was without prospect of rehabilitation. Those findings were such as could not sensibly have been made. The appellant had in fact demonstrated that he was a good candidate for rehabilitation because -

(1) He had not re-offended in the 33 months between charge and plea.

(4) Powerful character evidence had been adduced that he had learned the error of his ways and would not re-offend.

26 Counsel particularly relied upon what the learned judge said immediately before passing sentence; and upon his Honour's failure to specifically address the argument on the plea that the appellant was a good candidate for rehabilitation.

27 The nature of the ground relied upon by the appellant needs to be understood. It is a complaint that the judge made a wrong finding as to a sentencing fact, and that this impacted upon sentence passed. As orally advanced, the contention was that the judge made findings of no remorse and no prospect of rehabilitation - not that the judge found there to be some remorse and some prospects of rehabilitation, but undervalued those circumstances in the sentencing synthesis.

28 The ground of appeal is in fact wider than was argued orally. It complains that the judge erroneously failed to give 'any or sufficient weight' to prospect of rehabilitation. Presumably, the former alternative was preferred in oral argument because the latter involves questions of degree upon which minds might legitimately differ.

29 It should next be noticed that the ground of appeal makes no complaint about a wrong finding as to remorse. The only way that remorse could be relevant to disposition of the appeal is if a finding in that connection was erroneous and was demonstrated to have borne upon evaluation of the prospect of rehabilitation.

30 Against the background described, the threshold question is whether the judge made the findings orally contended for by the appellant.

31 I deal first with remorse. His Honour made the two observations to which I have referred in the context of rejecting the appellant's exculpatory accounts as to the circumstances of the offending; and he stated that he was 'not convinced that [the appellant was] remorseful'. Although he did note that the appellant had pleaded guilty - and such a plea ordinarily bespeaks some remorse - it appears to me that his Honour did find that the appellant had not established remorse as a mitigating circumstance.

32 There was no argument before this Court as to just what his Honour meant, in the context of the obligation of persuasion, by saying that he was 'not convinced' that the appellant was remorseful. I would not assume that it was anything more than a figure of speech. His Honour is vastly experienced in criminal sentencing.

33 Turning to the question what finding his Honour made as to prospect of rehabilitation -

(1) There were the comments which he made when rejecting the appellant's exculpatory accounts.

(2) There is the fact that, though incompletely, he mentioned some of the matters upon which the plaintiff relied as evidencing prospect of rehabilitation.

(3) There is the negative circumstance that his Honour did not in terms address the appellant's case directed to prospect of rehabilitation.

(4) There is the remark that he was not convinced that the appellant was unlikely to offend again.

(5) There was the sentence which he imposed. Particularly, attention may be directed to the difference between the head sentence and the potential period of parole.

34 Expanding upon [33] (2) and (3), a body of evidence - some oral, some documentary - was adduced on the appellant's behalf with a view of showing that he had learned his lesson and was a good prospect for rehabilitation. It was, in my judgment, impressive evidence which obliged careful attention.

35 Mr Leonard Murphy, for example, gave evidence that he had told the appellant that he must knuckle down, and concentrate fully on his business. The appellant's attitude, he said, had been 'brilliant'. Likewise, his response to being told that he must not have anything to do with drugs had been 'very positive'.

36 To take another example, Mr Craig Smith, manager of a large company with which the appellant's company did business, gave evidence that the appellant had matured in the previous three years. He gave evidence also that in that period the appellant had considerably helped him through a psychiatric crisis.

37 In writing, there was, inter alia, the testimonial of Mr Chris Baldwin, accountant, which said in part that the appellant had realised that his actions were wrong and was 'greatly remorseful'; and a letter from the appellant's long time medical practitioner, in which the author spoke of the appellant in very favourable terms.

38 Almost entirely, the judge made no mention of this material, which counsel highlighted as going in proof of remorse and as showing that the appellant had 'very good prospects of rehabilitation'.

39 Neither did his Honour in terms attach any significance to the fact that the appellant had not re-offended in the 33 months before charge and plea. He did mention the time elapse, and described it as a mitigating factor. But that seems to have been directed to the fact that the charges had been left hanging over the appellant's head for a protracted period. I will return to this point below.

40 Expanding upon [33] (4) above, his Honour's observation that he was not convinced that the appellant was unlikely to offend again plainly expressed his conclusion as to the appellant's prospect of rehabilitation. Standing alone, it is hard to know what to make of it. It might be read to mean that the appellant was, as the judge saw it, likely to offend again; or rather as meaning that the judge was guarded in his estimation whether the appellant would or would not re-offend.

41 Turning to the matter which I noted at [33] (5), I do not forget that a person under sentence may be required to serve every day of that sentence. Even so, a sentencing judge's estimate of an offender's prospect of rehabilitation is likely to be discernible in the extent of the potential period of parole, expressed as a percentage of the head sentence. In this case, the non-parole period was only about 63 per cent of the total effective sentence. That is, I think, hard to reconcile with the judge having concluded that the appellant was without prospect of rehabilitation.

42 In all, the sentencing remarks may fairly be criticised for not squarely addressing the appellant's substantial case addressed to the issue of rehabilitation. But I am not prepared to conclude, in light of what I consider to have been the ambiguity in his Honour's final remark, and in light of the sentence actually passed, that his Honour rejected all prospect of the appellant's rehabilitation. Rather, I think that he assessed the prospect of rehabilitation as being at best fair; and that in making such assessment he factored in his finding that the appellant was not remorseful for what he had done.[7]

43 In the event, I reject the submission that the judge found, as was contended orally, that the appellant had no prospect of rehabilitation.

44 Then there arises the question whether his Honour erred by making a finding as to the extent of the prospect for rehabilitation which was perverse, or such as could not sensibly have been made. That is a difficult contention for the appellant to make out because, as I noted earlier, it involves consideration of a value judgment.

45 Counsel submitted that a finding of absence of remorse did not exclude a finding of absence of prospect of rehabilitation. He cited R v Merrett & ors[8] to illustrate the point. The appellants had gone to trial, raising an alibi defence which was rejected. That told against them being remorseful. And yet they had been considered to have made significant progress towards rehabilitation - as revealed, particularly, by their conduct during long periods of delay between the commission of the offences, the laying of charges, and trial.

46 I accept counsel's submission, but subject to two observations. First, the question whether demonstrated progress towards rehabilitation was contradicted or undermined by lack of remorse implicit in going to trial on a rejected alibi defence was not examined in Merrett. Second, the question whether absence of remorse does bear upon prospect of rehabilitation must turn upon the circumstances of the individual case.

47 In my opinion, the particular conduct upon which the judge focussed in this case was capable of showing both absence of remorse and diminished prospect of rehabilitation. It was open to the judge to reason that the conduct bespoke lack of remorse, and that this bore upon prospect of rehabilitation. His Honour was alternatively entitled to conclude that such conduct showed the appellant to have limited insight into the criminality of his offending, or else would not accept responsibility for it; and, whichever was the case, that it was directly relevant to assessment of prospect of rehabilitation.

48 As I said earlier, I think it likely that his Honour did factor in his conclusion that the appellant was not remorseful in concluding that the appellant had, at best, only a fair prospect of rehabilitation. On the footing that such reasoning was open, a question arises whether the judge was entitled to find - as I consider he did - that the appellant was without remorse. For if one of the findings which contributed to his Honour's conclusion about prospect of rehabilitation was not open, then the conclusion would be impugned.

49 Counsel accepted that his Honour was entitled to find that the appellant had proffered exculpatory accounts in respect of counts 2 and 3 which should be rejected. In my opinion, such findings did tell quite powerfully against the appellant being remorseful. It followed from his Honour's conclusions that the appellant, cold-bloodedly as it were, gave instructions at time of plea of circumstances more or less exculpatory[9] in respect of not one, but two, serious offences - instructions which the judge was positively satisfied were not accurate.

50 Preparedness to act in that way, although the setting was different, had some of the features of the conduct which constituted count 1 in that it showed a certain contempt for legal process. It certainly stood in opposition to matters indicative of remorse - the plea of guilty, the oral and written testimonial evidence to which I have referred, and perhaps the agreement to pay a large forfeiture amount.[10]

51 On the other hand, it could certainly be argued that the instructions which the appellant gave about the circumstances of counts 2 and 3, whilst foolish, were far removed from the serious criminal conduct the subject of count 1; and that it went too far to use them as a basis for a finding of absence of all remorse.

52 The issue is not clear-cut. But in the end I have concluded that the judge was entitled to reach the conclusion which he did about remorse. The immediacy of evidence contra-indicative of remorse was capable of overcoming an inference which might be drawn from the plea of guilty to negotiated counts and payment of the forfeiture amount; and from the testimonials founded on what the appellant had said to the various witnesses.

53 Counsel for the appellant focussed also upon what he contended was an error in the judge's approach to the delay which had occurred between the laying of charges and the plea. His Honour had focussed upon delay from the 'fairness' point of view. He had not dealt with delay, so counsel claimed, insofar as absence of offending over a protracted period was indicative of rehabilitation. Delay as a mitigating factor focuses attention on rehabilitation as well as on fairness.[11]

54 A judge is not required, in sentencing remarks, to write a book which exposes every nuance of his or her analysis of sentencing considerations. Failure to mention a matter does not necessarily mean that it has been overlooked. But in this case I think it is significant that his Honour specifically addressed delay in one context; but said nothing about it in another context which had been pressed on the plea. In my opinion the appellant has demonstrated that his Honour's analysis of the prospect of rehabilitation failed to take account of a relevant consideration. Difficult though the task is, I consider that the appellant has successfully impugned the judge's assessment of the extent of rehabilitation. The appellant not having re-offended during the long period of delay was a matter of significance.

55 The learned judge found, as I have interpreted his sentencing remarks, that the appellant had at best a fair prospect of rehabilitation. Notwithstanding that his Honour was entitled to conclude that the appellant was not remorseful, the circumstance that the appellant had not re-offended in the long period between charges being laid and the plea bore significantly on prospect of rehabilitation. In my opinion, taking all pertinent circumstances into account, such prospect was somewhat better than his Honour considered it to be, and a different sentence should have been passed.

56 I would impose the same total effective sentence as did his Honour. But I would structure it differently. In my opinion, the sentence on count 1 was too low, and there should have been a greater cumulation of sentence imposed for that

offence. On the other hand, I would allow greater concurrency between counts 2 and 3 than his Honour did. Then, reflecting my conclusion that the appellant has better prospects of rehabilitation than his Honour assessed was the case, I would fix a somewhat shorter non-parole period than did his Honour.

57 I would allow the appeal and, as to the detail, would re-sentence the appellant as follows:

I would cumulate 6 months of the sentence on count 1 and 9 months of the sentence on count 2 on each other and on the sentence on count 3. The total effective sentence would then be 4 years and 9 months' imprisonment. I would fix a non-parole period of 2 years and 7 months. I would confirm other orders made below.

58 I have had the benefit of reading the reasons for judgment of Ashley JA in draft. I agree with his Honour's analysis and I would also re-sentence the appellant as he proposes.

[1] Common law offence. The maximum penalty set by s320, Crimes Act 1958 (Vic) is 25 years' imprisonment.

[2] Drugs, Poisons and Controlled Substances Act 1991 (Vic), s 71AC; and see Part 1 of Schedule 11. The maximum penalty is imprisonment for 15 years.

[3] Also an offence against s 71AC; and see Part 3 of Schedule 11.

[4] Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act.

[6] He observed also, correctly, that this would be the appellant's first period of imprisonment.

[7] The structure of his Honour's sentencing remarks suggests that his finding of absence of remorse contributed to his conclusion that the appellant had at best only fair prospect of rehabilitation.

[8] [2007] VSCA 1; (2007) 14 VR 392.

[9] Counsel for the appellant submitted that the account given in respect of count 3 involved an admission to trafficking to a circle of friends. Even accepting that this was so, it was an admission to a very confined form of trafficking.

[10] It might be said that the first and third of those matters were no more than the appellant bowing to the inevitable. Even so, the first, and perhaps the third, of them did imply a degree of remorse.

[11] See R v Merrett [2007] VSCA 1; (2007) 14 VR 392, 400 [35] (Maxwell P).