R v ROGERSON

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1914 (Cth)

R v Aristodemou (unreported, NSWCCA, 30 June 1994) R v Bulliman (unreported, NSWCCA, 25 February 1993) CASES CITED: R v Chad (unreported, NSWCCA, 13 May 1997) R v Chapman (unreported, NSWCCA, 21 May 1998) R v Tregllia [2002] NSWCCA 338 R v Salesi Fifita (unreported, NSWCCA, 26 November 1992)

PARTIES: The Crown Roger Caleb Rogerson

COUNSEL: P Miller - Crown Mr C Steirn SC - Offender

SOLICITORS: Director of Public Prosecutions Paul Kenny & Associates

1 HIS HONOUR: Few in the community would not have heard of Roger Rogerson. A witness called on the offender's behalf in these proceedings said that the offender once joked that the media had changed his name by deed poll to "disgraced former detective Roger Caleb Rogerson". Most members of the community would probably have an opinion as to the character of the offender and if that were based on media reports and what were claimed to be dramatisations of Mr Rogerson's life shown on television. I would expect that those views would be overwhelmingly negative.

2 However I am not sentencing Mr Rogerson for committing offences which have been depicted in those dramatisations or alleged in the media. Nor in assessing his character will I take into account material that is not properly before me. I will sentence him for the offence to which he has pleaded guilty, taking into account the matter on the Form 1 and assess the appropriate sentence based on the matters proved before me in evidence.

3 When sentencing Mr Rogerson's wife and co-offender Ann Melocco last year, I set out in some detail the principles which guided me when sentencing for an offence of give false evidence to the Police Integrity Commission. Much of what I said applies equally to this offender. The offender himself was not present when his wife was sentenced nor were many others who have come to Court today. I will therefore spend some time restating the principles which guide me, before moving to the particular circumstances of this offender.

4 In common with many other offences, when sentencing for offences involving the giving of false evidence, general deterrence will usually be of prime importance. The reason for this was explained in R v Bulliman CCA unreported 25 February 1993 where Abadee J said; "False evidence strikes at the whole basis of the administration of justice and indeed, it undermines the whole basis of it. Justice inevitably suffers, whatever be the motive for the making of false statements on oath and whatever be the circumstances in which the offence or offences are committed.

The purpose of an appropriate sentence. In this class or case it's not only to punish the offender but to deter others and make plain that the commission of this type of offence will normally be visited with serious punishment. General deterrence is the point of importance to be particularly emphasised in this type of case."

5 In R v Aristodemou unreported Court of Criminal Appeal 30 June 1994, the Court of Criminal Appeal provided some specific guidance as to how general deterrence is to be achieved. "Any person who commits an offence of perjury or false swearing in the course of judicial proceedings, or in proceedings such as a Royal Commission or an Independent Commission Against Corruption Inquiry, should do so in the clear understanding that if his offence is detected, he will go to gaol except in particular circumstances".

6 In R v Chad unreported 13 May 1997 the Court of Criminal Appeal reaffirmed the principle that a person convicted of giving false evidence in that case before ICAC, should receive a custodial sentence except in very particular circumstances.

7 By the time of R v Chapman unreported Court of Criminal Appeal 21 May 1998 Simpson J was able to say, "The issue was therefore, foreclosed. This court has firmly stated that offences of this nature will be punished by full time custodial sentences".

8 Her Honour was there considering a Crown appeal against a sentence imposed for perjury. Her Honour continued. "Absent the extraordinary compelling circumstances" referred to by both Badgery-Parker J in Aristodemou and Chief Judge at Common Law Hunt (in Chad), a custodial sentence should have been imposed.

9 This is not to say that sentences of full time custody are inevitable. In R v Fifita where the offender was of prior good character and where there had been unexplained delay in prosecuting him, the Court of Criminal Appeal reduced his sentence to time served pending the appeal.

10 These expressions of principle by the Court of Criminal Appeal are helpful because as Hidden J noted in Treglia [2002] NSWCCA 338, "Sentencing for the crime of perjury is a difficult exercise, for which there is little guidance on precedent. There are only a few decisions of this Court and Judicial Commission statistics are based upon a small sample."

11 Of course in determining an appropriate sentence for lying under oath, based on other sentences imposed for similar offences, I must be careful to take into account the particular form of perjury involved. Offences of perjury can, depending on the circumstances, carry maximum penalties of fourteen years, ten years or as in the present case, five years.

12 The basic principle made clear by the Court of Criminal Appeal when sentencing for offences of this nature is this: In some cases there may be extraordinary and compelling factors which justify the imposition of a sentence other than a full-time custody, but, ordinarily, a full time custodial sentence is required.

13 With that principle in mind, I turn to the particular case before me today.

14 Roger Rogerson appears for sentence after pleading guilty to one count of giving false evidence to the Police Integrity Commission. He gave evidence on oath that he did not know that a particular employee of Liverpool City Council was receiving bribes. But that was a lie. When sentencing him for that offence, he asked that I take into account another similar offence relating to other false evidence he gave to the Commission. He said that he could not recall being told that ICAC was interested in him, but that too was a lie. I will explain the context of those two lies in more detail shortly.

15 The matter on the form one indicates that there is a need for greater weight to be given to personal deterrence and retribution than would otherwise be the case.

16 Roger Rogerson and his wife were good friends of Sam Masri. Masri was the Purchasing Manager at Liverpool City Council and he was blatantly dishonest.

17 As part of its ongoing work combating police corruption, in 1998 and 1999, PIC carried out an investigation into the activities of a number of people. In August 1998 PIC intercepted a conversation which indicated that corrupt activity may have been occurring at Liverpool City Council involving Mr Masri. In December 1998 a number of further conversations giving more indications of corrupt activity, were recorded. Information was therefore passed from PIC to ICAC which led to ICAC investigating the activities of Mr Masri. Listening device warrants were granted by which the private conversations of the offender could be monitored and recorded.

18 On 19 March 1999, a listening device in Mr Rogerson's home, picked up a conversation between him and Ray Johnson, a former New South Wales police officer, in which Mr Johnson told Mr Rogerson that a mutual associate, a person known as Laurie had received information from someone at ICAC, that ICAC had intercepted a telephone conversation between Mr Rogerson and Sam Masri and that "The whole thing is going to blow wide open and that it won't be that long."

19 The person at ICAC had told Laurie because he thought Mr Rogerson should be careful.

20 During the conversation the offender explained to Mr Johnson that Sam Masri received secret commissions of ten per cent, for which if detected, he would serve a sentence of imprisonment. These of course not the exact words used, I have paraphrased them.

21 A police officer then on secondment to ICAC was thought to be unlawfully divulging information about ICAC's activities and so in March 1999, the PIC investigation was extended.

22 Both Ms Melocco and the offender were summonsed to give evidence before PIC on 25 May 1999. During her evidence Ms Melocco lied. The offender was present when she did so. He was then called to give evidence. He was asked a number of questions and he also lied.

23 In particular, he gave evidence to PIC that he had no recollection of anyone telling him that ICAC may have been interested in him in relation to Liverpool Council. He also gave evidence that he did not know of Sam Masri receiving secret commissions concerning the tendering processes for Liverpool Council.

24 Both of these pieces of evidence given by the offender under oath were false and he knew they were false, when he gave that evidence. He had earlier been recorded speaking to Ms Melocco. The effect of that conversation was that the accused told Ms Melocco that Mr Masri, the Purchasing Manager at Liverpool City Council would demand a ten per cent secret commission.

25 Counsel questioning the offender at PIC approached the issue of the offender's knowledge of Mr Masri's corruption from a number of different directions. On each occasion the offender maintained that he knew nothing about Mr Masri's wrong doing. In fact in January 1999, the offender had been recording telling Ms Melocco of a conversation he had with a Mr Walden, in which they had agreed to start putting money aside for the ten per cent commission which Mr Masri required.

26 All offences of lying under oath are serious but it is important to determine where in the scale of seriousness, this particular offence fits. Mr Steirn's submission was that his client's offence was at the lower end of the scale. He relied on a Canadian case which suggested that giving perjured evidence to protect yourself is not as serious as other forms of perjury. There are a few things I should say about that submission. The first is that I do not accept that the offender lied to protect himself. Indeed his evidence himself was that he lied to protect his wife. I do not accept that evidence either because it does not make any sense when the nature of the false evidence is considered. Simply because Ms Melocco denied any knowledge of relevant matters does not mean the offender would get her into trouble by himself admitting that he had such knowledge.

27 Another aspect of Mr Steirn's submission about the offence fitting into the lowest category of seriousness, is that the Canadian decision on which he relied is not concerned with lying to investigatory bodies such as the Police Integrity Commission. Lying to such a Commission is an offence of considerable seriousness. That commission together with other bodies such as ICAC was set up in response to genuine widespread community concern about the level of corruption amongst in the case of PIC, the Police Force of New South Wales. PIC has been given significant powers in order to attempt to deal with police corruption. One of those powers is the ability to call evidence from witnesses but PIC's ability to do its job will be hindered if those who give evidence before it refuse to tell the truth. The effective functioning of PIC depends on witnesses' truthful evidence. As I have mentioned PIC have a fundamentally important job to perform and offences such as this, which affect its ability to perform that job, are for that reason very serious.

28 Also in assessing the seriousness of the offence, I take into account that the offender had the opportunity of considering his position before lying to the Commission. This was not some spur of the moment decision which was immediately regretted. It seems that the offender was upset at being called to give evidence and had no respect for the way the Commission operated. That, plus the desire not to get Mr Masri into trouble, appears to be have been what motivated the offender's lying.

29 It is worth at this stage repeating what Badgery-Parker J said in R v Aristodemou. Although he was there speaking about ICAC, his words were entirely appropriate to the Police Integrity Commission. He said; "The will of the community which led to and is manifested by the enactment of the ICAC Act, is that corruption should be eradicated from the community and that the means to produce that result should include the co-coercive and inquisitory powers conferred on ICAC by the statute. Where a person acts so as to frustrate an ICAC investigation into corruption, it would appear to me that the community would approve that he should be severely punished."

30 The offender joined the police force as a cadet. He was sworn in as a probationary constable in 1960 and spent 24 years as a police officer. During that time he received many commendations and awards, including the Peter Mitchell Award. He achieved fame and notoriety, most obviously when he was charged with a number of serious criminal offences. He was acquitted of some of these but in 1990 he was convicted of conspiring to pervert the course of justice and sent to prison. After being placed before the police tribunal and dismissed as a police officer, in 1984, he set up an engineering business. He also started a scaffolding company, although his work in that enterprise was interrupted by time in custody. In 1999 he formed a company called Scaffco Scaffolding. Photographs were tendered which indicated that a considerable amount of work had gone into that business. However as a result of some publicity being given to the offender's involvement in this business, ASIC conducted an investigation. It was determined the offender had been managing a corporation within five years of his release from prison. The offender's evidence was that he did not know that he was committing an offence and it seems that the magistrate accepted that explanation, as he was released on a good behaviour bond.

31 The offender was frustrated at having to resign as a director and being unable to manage his own business. The scaffolding business was therefore closed down midway through 2001.

32 Since then the offender has performed various sorts of work and now describes himself as an entertainer. He was until recent illness, successful in that endeavour as well. He has also performed work doing public relations work for a fresh fruit company.

33 The offender has a had a number of physical and mental problems over the years. It is not suggested that any of them played a part in the offender's decision to commit this offence. They are relevant however in assessing the circumstances in which the offender will serve his sentence.

34 The offender suffers from high blood pressure, problems with his back and suffered a significant injury to his shoulder in February 2003, which was left him with lasting and serious dysfunction. Mentally he is depressed. The Crown suggested that this related primarily if not exclusively to the present proceedings. Whilst Dr Clark for the accused suggested that other factors were involved such as post traumatic stress disorder. The label which is ascribed to the offender's mental condition is not as important as the consequences for him. I am satisfied that he is undergoing a great deal of stress, is significantly depressed and perhaps most importantly, these matters will not resolve themselves whilst in custody. I will take into account that a full time custodial sentence will be harder on the offender because of his mental condition.

35 One of the matters which I must assess in determining the appropriate sentence on the offender concerns his character. As I have mentioned there would be few in the community who did not have an opinion on the offender's character based on newspaper reports and television programs. Some of that material may be fact, while some may be fiction and even fantasy. I will assess the character of the offender and his prospects for rehabilitation, based on the evidence I have before me. That material indicates that the offender has done many good and worthwhile things. There is much in Mr Rogerson's life about which he is entitled to be proud. There are many aspects of the offender's character which are admirable and he was able to call a great deal of evidence which demonstrated the offender's kindness towards others. He has helped friends, family and strangers. He has assisted in raising money for various charities for example the Oncology Unit at Westmead Children's Hospital and a young girl with cerebral palsy. He has donated a considerable sum of money himself. He helps his father-in-law, his mother and even children in Swaziland through World Vision Australia. He acted bravely at times when serving as a police officer.

36 Mr Winterbottom was one of those who gave evidence as to the offender's good character in certain respects. He accurately summed up what that evidence revealed as to Mr Rogerson's good work. He said that the offender "gave generously of himself". The evidence that I heard as to the good works done by Mr Rogerson, demonstrated the accuracy of that description. One particular matter which Mr Winterbottom referred to, was that Mr Rogerson donated a speaking fee and his share of the profits, amounting to some $10,000 to a charity with which Mr Winterbottom was associated. Mr Winterbottom's evidence demonstrated that Mr Rogerson gave generously of himself, not only in giving up his time to assist others, but also in more concrete terms by giving up money, and substantial amounts at that.

37 It was Mr Rogerson's giving up of his time to assist Mr Pace, which led to him suffering his shoulder injury when the shed he was demolishing for Mr Pace collapsed and he was trapped before being rescued and taken to hospital. He is entitled to be proud of his work record too, running successful businesses until circumstances beyond his control intervened. He then in effect began a new career as a successful entertainer although as I have mentioned, he has had to give that up recently when he became ill.

38 The offender is entitled to have those aspects of his character taken into account in his favour, when I assess the sentence to impose upon him.

39 He has also assisted the authorities in a particular way regarding the investigation of a serious crime. I have taken that last matter into account after considering s23 of the Crimes Sentencing Procedure Act. This is not only evidence relevant to his character but also entitles him to a reduction in the sentence I would otherwise have imposed, independent of that consideration.

40 Although I have referred to the very impressive evidence as to the accused's good character, it is important to remember the principles of law which I must follow where there is evidence of good character concerning some aspects of an offender's personality, but where the offence relates to an entirely different aspect of his character. There are some similarities between the present case and that of Chad. The offender in Chad had also much to be proud of. He had displayed exemplary conduct as a police officer and as a volunteer lifesaver, had demonstrated courage and even heroism. Yet as the Court of Criminal Appeal pointed out, his offences involved dishonesty of a high order, in that he knowingly gave false evidence before ICAC. The Court said, "in those circumstances, less weight must be given to evidence of his character as a courageous and efficient police officer and life saver".

41 But I repeat, that is not to ignore those aspects of the offender's good character which are very impressive indeed.

42 When dealing with the offender's character, the evidence is of course, not all one way. It has to be said that the offender has at times acted in a way which suggests he does not accept that he is obliged to play by the rules. The most obvious example of this is of course his conviction for conspiring to pervert the course of justice, but there are other indications of this attitude as well. Part of his work as an entertainer involves telling audiences about his experience as a police officer in which it seems from what the offender told me himself about what he did, he passes on the message that things were better in the olden days when police officers were not hamstrung, by the need to act strictly in accordance with their lawful obligations.

43 He also, as is clear from the material before me, was quite prepared to pay Mr Masri a bribe, in order to secure work for his business from Liverpool City Council. That the offender lied to the Police Integrity Commission even after having been given a chance to reflect on matters, is consistent with the way I have described this aspect of the offender's character.

44 Since he told the lies and realised almost immediately that the authorities knew that he had lied, the offender has been in a state of uncertainty as to what would eventually happen to him. This has no doubt been a stressful period of his life. Adding to that stress was the realisation that for a lengthy period, the authorities were listening to what took place in his homes and car. It does not take much imagination to realise the effect that such revelations would have on a relationship between husband and wife.

45 The offender gave evidence that once these matters were behind him he intended to move to Tasmania with his wife. He has a job lined up there and he could still perform his entertainment work, which involves shows throughout Australia.

46 Although the offender told his lie in May 1999 and the authorities knew that it was a lie as soon as he told it, it was not until over three years later that he learnt that he was to be prosecuted. As the Courts have pointed out on a number of occasions, it is somewhat incongruous for the authorities to proceed at a leisurely pace in prosecuting offences such as this and then when they eventually come to Court, point out the seriousness of such offences and a need for sentences which reflect general deterrence. Such an attitude is not to be encouraged. No doubt the Police Integrity Commission wished to complete the large operation and investigation it was running before making recommendations. However, that ignores the need for criminal offences to be processed at a reasonable speed. I will not repeat what the authorities say about the effect of delay in sentencing, beyond noting that it entitles the offender to this case, to a considerable measure of leniency.

47 Under s21A of the Crimes Sentencing Procedure Act I am required to assess whether the offender has "good prospects for rehabilitation", the onus being on the offender to demonstrate that that situation exists.

48 Part of the evidence on which the offender relied was the opinion of Consultant Forensic Psychiatrist Dr Clark. However in response to that opinion the Crown relied on an opinion of another Forensic Psychiatrist, Dr Greenberg. Dr Clark was of the opinion that the offender "was most unlikely to offend again" but Dr Greenberg disagreed.

49 I note of course that the test under 21A is not whether the offender is "most unlikely" to re-offend, but whether he has good prospects for rehabilitation. With that in mind however, let me turn to some aspects of Dr Greenberg's evidence.

50 The first aspect concerns whether he took into account in assessing the offender's prospects for rehabilitation, that the offender had been charged with other matters in South Australia. I am of the view that unless the offender is convicted of those charges, they should not be used as a predictor, of whether he is likely to offend again. It is entirely possible that the offender will be acquitted of the South Australian matters and so it is obviously unfair to him to take the fact that he has been charged in South Australia, into account in assessing his prospects for re-offending.

51 It seems to me that Dr Greenberg did take the fact that he was charged into account, in coming to his opinion that Dr Clark's opinion should not be accepted. At p9 of his first report which is exhibit G Dr Greenberg goes through a number of factors concerning the offender's criminal history before saying this. "He states very recently that he has very recently been charged again in South Australia. I am therefore of the opinion that I could not agree with the statement made in Dr Clark's report that Mr Rogerson is most unlikely to re-offend again."

52 The second aspect of Dr Greenberg's opinion regarding the offender's prospects for rehabilitation concerns the offence of managing a corporation within five years of release from prison. As I have noted the offender pleaded guilty to this charge but was released under s20 of the Commonwealth Crimes Act. It seems to be accepted by the Crown in this case that that offence was committed inadvertently in the sense that the offender had no idea that it was an offence for him to manage a corporation within five years of being released from prison. That offence was therefore not a case where the offender deliberately chose to break the law. After some questioning by me Dr Greenberg concluded that his assessment of the offender's prospects for rehabilitation would change if he was of the view that the second offence had been committed inadvertently. He would still disagree with Dr Clark's statement. He was "most unlikely to re-offend" but as I have noted, that is not the test under 21A.

53 The opinions of the psychiatrists are of course not to be ignored but ultimately it is for me to make my assessment based on such things as the offender's attitude to this offence. The consequences which he has suffered following its commission, his plans for the future and so on.

54 I also take into account that Mr Rogerson has been subject to a great deal of surveillance which did not apparently reveal that he was committing criminal offences. It is obviously important in assessing the offender's prospects for rehabilitation, that I take into account the absence of any suggestion of the offender committing other offences despite him having been subject to extensive observations by law enforcement officers.

55 I am satisfied that the offender does have good prospects for rehabilitation. Perhaps foremost in my mind in coming to that view is the deterrent aspect of what has happened to the offender since committing the offence, as well as what will happen to him once I pass sentence.

56 The offender is entitled to a lower sentence because of his plea of guilty. He is entitled to a utilitarian discount but the plea of guilty is also relevant as being evidence of his remorse.

57 Dealing firstly with the utilitarian benefit. I note that this is a plea entered only shortly before the offender's trial was due to commence. It was not an early plea by any means. Although he had originally been charged with a large number of offences, there was nothing to stop the offender pleading guilty to this offence earlier than he did. It may have been that he was badly advised or it may have been that the Crown did not serve statements until late but the offender himself knew whether he was guilty or not and could have pleaded guilty at an earlier stage.

58 However of course the offender is still entitled to a utilitarian discount. The trial would have been reasonably lengthy. Although the offender cannot get the benefit having pleaded guilty at an early stage, he will nevertheless get a significant and measurable utilitarian discount. I will not quantify it separately from the discount to which the offender is entitled by reason of his assistance to the authorities. Combining those two factors together means the offender's sentence will be about twenty per cent lower than it would otherwise have been, because of his plea of guilty and his assistance.

59 Also under s 21A I am to asses "whether the offender has shown remorse for the offence". Remorse can take a number of forms. A person can be sorry for having committed an offence because they were caught and must be punished. A person can also be sorry for having committed an offence because they realise it was the wrong thing to do. There is a great deal of evidence to establish that the offender is remorseful in the first sense, to which I have referred. He has suffered a great as a result of committing the offence and will continue to suffer whilst undergoing the sentence I will shortly impose.

60 Not without some hesitation I also accept the offender is remorseful in the other sense to which I referred. I am satisfied on the balance of probabilities that he has regretted his behaviour flows not only from the consequences for him but also because he realised that lying to the Police Integrity Commission, was simply the wrong thing to do.

61 It is accepted by the Crown that the offender will have to serve any sentence of full time custody on protection. Enquiries suggest that in all probability that would be at Cooma Gaol. Cooma is some distance away from where his friends and family live in Sydney. His wife is currently serving a sentence of periodic detention and works five days a week. This will make it difficult if not impossible for her to visit the offender in Cooma Gaol, at least on a regular basis. I will take that matter into account.

62 The Crown tendered material relating to the circumstances under which prisoners at Cooma Gaol serve their sentences. In contrast to what has traditionally been understood as the circumstances under which protection prisoners serve their sentences in other gaols, in Cooma it appears that the conditions of custody are not significantly harsher than those of the general prison population.

63 I now turn to the issue of comparative sentences for offences such as this. Researches of Counsel have borne out what Hidden J said in Treglia. "As I noted earlier" he said ,

"there are only a few decisions of this Court and judicial commission statistics are based on a small sample. It is for that reason it is perhaps more helpful to be guided by statements of principle rather than sentence imposed in other cases."

But with that qualification I take into account Mr Steirn's submission that the longest sentence imposed for an offence of this nature, is one of two years in the case of Irwin. Of course as the Crown points out that sentence was imposed following a Crown appeal and were it not for that circumstance, a much longer sentence could have been expected. I note also that many of the prosecution for offences of this nature are dealt with in the Local Court. I take into account that this offence is one with which the Local Court can deal in appropriate circumstances and that in the Local Court there is a two year jurisdictional limit.

64 It was Mr Stern's submission that whilst the general principle is that fulltime custodial sentences are generally required, there were sufficiently exceptional circumstances in this case to justify a different form of sentence. He relied on a combination of factors to which I have earlier referred such as delay, the offence being at the lower end of the scale in terms of its seriousness, the offender's mental condition, the circumstances in which a full-time period of custody would be served a Cooma Gaol and so on. I have dealt with each of those matters in these remarks on sentence. I do not consider that those factors on which Mr Stern relied do establish sufficient, exceptional circumstances. I consider that this is one of those cases where a fulltime custodial sentence is required.

65 Full-time custody is required in this case because of the seriousness of the offence. The Police Integrity Commission was endeavouring to identify and weed out corruption. The Commission has the overwhelming support of the community in that task. General deterrence requires that those who are called before ICAC or PIC or other Commissions of Inquiry with investigative powers, understand that they must tell the truth and if they fail to do so, they will be severely punished. The offender must also himself be severely punished for what he has done. It was not for him to decide whether to tell the truth to PIC based on this perception of the way PIC was operated, or his attitude towards counsel asking him questions or his frustration at being called before the Commission in the first place.

66 There is a tendency sometimes in sentencing to focus on the offender and to put to one side the offence. Yet in truth the assessment of the seriousness of an offence and the need to ensure that the sentence reflects the objective criminality of an offender's conduct is fundamental. For that reason full time custody is required.

67 I will however find special circumstances. Those circumstances relate to the offender's age and his health.

68 The offender is sentenced to imprisonment for two and a half years. That is to commence today. I set a non-parole period of one year, which will expire on 17 February, 2006, at which time I order that the offender be released to parole.

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