Regina v Rogerson

Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1997) 189 CLR 295 Regina v Brett (2004) NSWCCA 372 CASES CITED: Regina v Grbin (2004) NSWCCA 220 Regina v Ponfield (1999) 48 NSWLR 327 Regina v Sutton (2004) NSWCCA 225 Regina v Thompson (2000) 49 NSWLR 383

Regina (Respondent) PARTIES: Scott Allan Rogerson (Applicant)

B Knox SC (Crown) COUNSEL: M Johnson (Applicant)

S Kavanagh SOLICITORS: SE O'Connor (Applicant)

IN THE COURT OF CRIMINAL APPEAL 2004/2534

DUNFORD J BELL J

Friday 4 February 2005 Regina v Scott Allan Rogerson Judgment 1 BELL J: This is an application for leave to appeal against the severity of a sentence imposed on the applicant by his Honour Judge Maguire QC (the Judge) in the District Court at Campbelltown on 24 March 2004. 2 The applicant adhered to a plea of guilty to an indictment that charged him that on 17 June 2003 at Fairfield, in the company of David Kelly, he did break and enter a dwelling house and did commit a serious indictable offence therein, namely, stealing. The offence is provided by s 112(2) of the Crimes Act 1900. It carries a maximum sentence of twenty years imprisonment. The provisions of Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999 with respect to the standard non-parole period apply to this offence, it having been committed after 1 February 2003. The standard non-parole period, representing the non-parole period for an offence in the middle range of objective seriousness applicable to the offence of aggravated breaking, entering and stealing, is five years. 3 In addition to the offence to which he pleaded guilty, the applicant asked the Judge to take into account one offence on a Form 1 pursuant to the provisions of s 33 of the Crimes (Sentencing Procedure) Act. This was an offence of possession of housebreaking implements. The implements were particularised as a jemmy bar and a carpenter's chisel. This offence was associated with the principal offence; the implements were in the applicant's possession when he was arrested at the scene. 4 The facts upon which the applicant and his co-offender were sentenced are not in issue. They are as set out in an agreed statement of facts. 5 On 17 February 2003 the victim was at home at around 10.15am. She was making telephone calls from the main bedroom of the premises. She thought she heard a slight knock on the door and looked out through the blinds but was not able to see anyone. She heard another slight knock, but again, there did not appear to be anyone at the door. She returned to the bedroom to make another call. The bedroom door was open and she was able to see through to the kitchen/lounge area and to the backyard. She saw a man walk past the sliding door in the backyard. She went into the kitchen and heard a rustling noise. She saw the same male person using something that appeared to be a screwdriver in an endeavour to open the window. She went back to the bedroom and locked the door from the inside. She telephoned the triple 0 emergency number and spoke to the operator. She was in a highly distressed state. As she looked through the gap in the door she was able to see a man trying to pick the lock and open the sliding door handle. The man succeeded in opening the door and stepped into the premises. She observed a shadow moving down the hallway of the premises to her brother-in-law's bedroom. Shortly after this the police arrived at the scene. 6 The applicant and his co-offender were arrested inside the house and found to be in possession of items belonging to the occupants. David Kelly participated in an interview in which he made full admissions. The applicant declined to be interviewed. 7 The applicant was aged just on thirty-three years at the date of the offence. He had a lengthy criminal record commencing in 1988. The record disclosed convictions for assault, malicious damage, driving offences and stealing. He had been placed on recognizances under s 558 of the Crimes Act, on community service orders and he had been sentenced to a term of imprisonment to be served by way of periodic detention. 8 In July 1998 he was convicted of offences including breaking, entering and stealing. He was sentenced to fixed terms of imprisonment for four months for that offence. A concurrent term of imprisonment for two months was imposed on his conviction for a charge of goods in custody. 9 In the first half of 2000 the applicant was fined on a number of occasions for offences of entering enclosed lands and malicious damage. 10 In June 2000 the applicant was sentenced to a term of sixteen months imprisonment with a non-parole period of twelve months for driving a conveyance without the consent of the owner. A sentence in like terms was imposed for the offence of receiving stolen property and a term of six months imprisonment was imposed for the offence of goods in custody. Two days later he was sentenced to further concurrent terms of imprisonment in relation to convictions for possession of implements to enter/drive a conveyance and for taking and driving a conveyance without the consent of the owner. He was sentenced to lesser periods of imprisonment for maliciously damaging property and resisting a police officer in the execution of duty and assaulting a police officer in the execution of duty. For the offence of breaking, entering and stealing he was sentenced to imprisonment for sixteen months with a non-parole period of twelve months. 11 On 30 August 2001 the applicant was convicted of an offence of breaking, entering and stealing and sentenced to imprisonment for a term of eight months. The sentence was suspended upon the applicant entering into a bond under s 12 subject to supervision by the New South Wales Probation Service. 12 The applicant gave evidence at the sentence hearing. A pre-sentence report and a report by Peter Champion, a psychologist, were tendered on his behalf. The pre-sentence report recorded that the applicant had been known to the Service since June 1989 and that he had been supervised under a range of orders including bonds, parole and community service. Departmental records revealed that his general response to supervision has been mixed. It appeared that his long-term substance abuse had been the dominant problem during his periods of supervision. 13 It was reported that the applicant was the youngest of three siblings and that he had enjoyed a stable upbringing until his parents separated when he was nine years old. After that time he had been largely raised by his mother with whom he continued to have a close relationship. 14 The applicant was in a de facto relationship for a period of eleven years which had been characterised by numerous separations. These appear to have been the result of his drug dependence. He has an eight year old son by that relationship. 15 The applicant had a basic education. He had been employed for approximately fifteen years in the car repair industry and as a sign installer. His work history has been interspersed with periods of unemployment and imprisonment. 16 The applicant has a long history of drug abuse commencing when he was aged around eleven years. This included the abuse of alcohol, marijuana, amphetamines and heroin. There has been one period during which he was drug free for about ten months, this being a period a few years prior to 2004. 17 The applicant told the Probation Officer that he regretted the effect of his actions with respect to the victim of the offence but stated that at the time of the offence he had not been overly concerned about it. 18 The psychologist's report indicated that the applicant, on the results of a widely used intelligence test, achieved results in the "high average" range of functioning. 19 The psychologist set out a detailed history of the applicant's substance abuse noting: "Mr Rogerson indicated that he now felt that he was ready for, and needed a residential rehab/treatment program and was keen to enter such, his past ambivalence and naivety about his ability to manage his addiction/dependency without such intervention having passed. He indicated that he felt that he needed more than a short 3 month program, and in this I think he is right, particularly as it will take some time for him to fully confront the issues underpinning his addiction and learn the skills to avoid inappropriate reactions to life crises. I do not think that his insight is as yet complete, though he is an intelligent man and should be able to benefit from therapeutic treatment if he can commit to it. He is hoping to continue to manage without resort to methadone. Consideration could be given to a naltrexone implant programme at a later time, if he is committed to abstinence and can avoid alternative drugs." 20 The psychologist noted that the applicant expressed a desire to gain control over his drug use, to live in the community and to obtain gainful employment. He had spoken generally of having reached a stage in his life when drug use, offending and prison did not appeal to him in any way. In this respect the psychologist observed: "While I do not doubt his intent, nor indeed his potential, at this stage only time will tell if he can deal with the D & A issues and more importantly learn skills to enable him to cope with the vicissitudes of life, something he readily acknowledged he had not done previously, he tending to rather fall apart at the seams when faced with relationship crises and the like, resorting to drugs to assist him to cope with his emotional malaise." 21 The psychologist expressed the opinion that the applicant needs assistance in dealing with his tendency to depression and that cognitive behaviour therapy could be useful in this respect. 22 There was evidence that while in custody the applicant presented as a responsible and well behaved wing sweeper. 23 The sentence is challenged, firstly, on the ground that the learned Sentencing Judge erred in the manner in which he discounted the sentences for the applicant's pleas of guilty. It is submitted that: "(a) The learned sentencing judge erred in failing to separately refer to the utilitarian value of the plea of guilty; (b) The learned sentencing judge erred in having regard to the strength of the prosecution case in assessing the utilitarian value of the applicant's plea of guilty; (c) The learned sentencing judge erred in not allowing an appropriate discount for the utilitarian value of the plea". 24 In the course of his remarks on sentence the Judge said: "I have taken into account his guilty plea on the question of sentence but to a small extent only in view of the strength of the Crown case." 25 The Crown concedes that the Judge erred by taking into account the strength of the Crown case in determining the discount to be applied for the plea of guilty: Regina v Sutton (2004) NSWCCA 225 at para 12. The Crown acknowledged that the strength of the prosecution case while relevantly bearing on the assessment of an offender's contrition is not relevant to the utilitarian value of the plea: Regina v Thompson (2000) 49 NSWLR 383 at 137; Regina v Way (2004) NSWCCA 131 at 18 and at 149; Regina v Grbin (2004) NSWCCA 220; and Regina v Brett (2004) NSWCCA 372.

26 In the Crown's submission, notwithstanding that error has been identified, this Court would not intervene since no lesser sentence is warranted in law. This requires that consideration be given to a matter that is the subject of the applicant's second ground of appeal, namely, that the difference in the penalties imposed upon him and his co-offender, David Kelly, is of such an order as to give rise to a justifiable sense of grievance. 27 It is necessary to refer to the subjective case that was mounted on behalf of Kelly. As noted, Kelly participated in an interview and made full admissions at the date of his arrest. He entered a plea of guilty in the Local Court and adhered to that plea on committal for sentence to the District Court. Kelly was sentenced to a term of two years' imprisonment with a non-parole period of six months. The sentence was back-dated such that Kelly was released on parole on the date of sentence. Kelly had served four months in custody prior to being released on bail on condition that he undertake a course of drug rehabilitation at "the Glen", Chittaway Point. 28 Kelly was aged thirty at the date of sentence. 29 Kelly gave evidence at the sentence hearing. In the mid 1990s he had obtained a Bachelor of Arts degree from Macquarie University majoring in psychology. Prior to this he had commenced using marijuana at around sixteen or seventeen years of age. He had progressed from the use of that drug to amphetamines and then to the use of heroin by intravenous injection. Ultimately he had been using heroin three times a day. It was found that the current offence was committed in order to fund that addiction. He had periods of abstinence when he had worked as an assistant strata manager and as a welfare officer. He had lost employment with the strata company in January 2003 and had at around the same time broken up with his girlfriend. Thereafter he moved into a flat by himself and his heroin usage increased. 30 Kelly entered "the Glen" drug rehabilitation programme in October 2003. He remained in that institution until shortly before he appeared for sentence. On the date of sentence he was living in a halfway house associated with "the Glen". 31 Kelly had prior convictions, including five convictions for the offence of break, enter and steal. He had been dealt with by the Drug Court in October 1999 on three of these charges. He had been sentenced to a fixed term of two months and nineteen days imprisonment. He had been convicted of two breaking, entering and stealing offences by the Hornsby Local Court in 1999. For these he had been placed on a community service order and two year recognizance. He breached the community service order and was ultimately sentenced to terms of imprisonment that ran concurrently with those imposed in the Drug Court. 32 A report of Dr Jolly, a psychiatrist, was tendered on Kelly's behalf. Dr Jolly observed that: "Mr Kelly impresses upon me that his three months at The Glen have been successful to date. He has been attending Narcotics Anonymous and Alcoholics Anonymous meetings, one or two per day." 33 Dr Jolly noted that he had only seen Kelly on one occasion. Nonetheless, he concluded: "Unquestionably this is a person of some personal assets with potential to contribute to society."

34 Reports from "the Glen" confirmed that Kelly had made substantial progress towards rehabilitation. 35 In his reasons for sentence the Judge said this: "I was favourably impressed by this young man and by the evidence he gave and by his obvious resolve. I have no difficulty in finding that he is genuinely contrite and is making a serious endeavour to cure himself from his drug habit." 36 In these circumstances the Judge considered there was no need to reflect personal deterrence in the sentence to be imposed. 37 The Judge allowed credit for the period in a residential drug treatment program in his decision to backdate the sentence such that it commenced on 25 September 2003. 38 There is no distinction to be drawn in the assessment of the objective culpability of the applicant and Kelly. Counsel for the applicant acknowledges that it was open to the Judge to impose upon Kelly a sentence of lesser severity than that imposed upon the applicant. However, in counsel's submission, the contrast between the two sentences lacks proportion; the extent of the differentiation made on account of the favourable subjective case advanced by Kelly being so significant as to leave the applicant with a justifiable sense of grievance: Lowe v The Queen (1984) 154 CLR 606. 39 The Judge made clear his view that it was appropriate to differentiate between Kelly and the applicant. As I have noted, his Honour approached the matter upon the basis that the strong case mounted by Kelly was of such force that considerations of personal deterrence were not relevant in his case. This was not a view that the Judge came to in dealing with the applicant. In this respect his Honour said this: "I am mindful of the evidence he gave at the sentence hearing in February and I have heard from him directly the resolutions that he expressed to the professionals who examined him and reported upon by them to the Court. However I share with them the doubts that they hold about his capacity to deliver, even with the best will in the world. One of the differences between this man and the co-offender whom I have sentenced this morning is that this man has a much worse record and another difference is that he has a larger task ahead of him in my judgment in dealing with his drug habit in the future." 40 His Honour considered that the applicant's prospects of rehabilitation would be enhanced by an extended period of supervision on release. This consideration amounted to special circumstances for the purposes of s 4(2) of the Crimes (Sentencing Procedure) Act. 41 The applicant contends that although his criminal record is a lengthier than Kelly's it does not substantially differ when one confines consideration to offences of dishonesty. Both Kelly and the applicant have criminal histories including the commission of offences of breaking, entering and stealing and both have received custodial sentences for those offences. 42 In written submissions it was noted that Kelly had been dealt with for a greater number of offences of breaking, entering and stealing than the applicant. The applicant acknowledged that the sentences imposed upon Kelly in relation to those offences had not been of the severity of those imposed upon him. 43 In this respect Mr Johnston, who appeared on his behalf, realistically conceded that the differences in the criminal histories of the two men may justify, on this account, some differentiation in penalty. 44 Mr Johnson submitted that the Judge had been unduly pessimistic in his assessment of the applicant's prospects of rehabilitation. In this respect he referred to the report of Mr Champion and to the observations that the applicant now felt ready to undertake residential drug rehabilitation. 45 The applicant relied on a passage in the judgment of Dawson and Gaudron JJ in Postiglione v The Queen (1997) 189 CLR 295 at 301: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them (see Lowe v The Queen (1984) 154 CLR 606 at 610-611 per Mason J). In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error ( Lowe v The Queen at 617-618 per Brennan J). Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance" (especially at 610 per Gibbs CJ, 613, per Mason J and 623 per Dawson J). If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality." 46 In the Crown's submission, no lesser sentence was warranted in law given that the offence is one that carries a maximum penalty of twenty years' imprisonment, noting that the victim had been subjected to trauma (a consideration identified in the guideline judgment in Regina v Ponfield (1999) 48 NSWLR 327, per Grove J at [48]) and taking into account this applicant's prior record, including for like offences. 47 The Crown also drew attention to the Form 1 matter. While it is necessary to take into account the Form 1 matter, the circumstance that it was so closely associated with the principal offence to my mind does not make it a prominent consideration in this sentencing exercise. 48 Important in the Crown's submission was the circumstance that this is an offence in respect of which the five year standard non-parole period, while not applying by force of s 54B of the Crimes (Sentencing Procedure) Act, since the applicant was not being dealt with after trial, is a reference point. It is a circumstance submitted to commend a view that a sentence comprising a non-parole period of less than three years is not warranted. 49 The Crown submitted that the applicant could not have a justifiable sense of grievance at the length of his sentence compared to that imposed on Kelly when regard is had to the previous custodial sentences to which he had been subject and to Kelly's demonstrated rehabilitation. I am not persuaded in these respects. It was appropriate to impose differentiated sentences on Kelly and the applicant having regard to the Judge's acceptance that Kelly had rehabilitated himself. However, taking into account that the culpability of the two men cannot be distinguished, I have concluded that the resulting sentences, even allowing for the difference in the subjective cases made by the two men, lacks proportion. The sentence imposed upon Kelly was a markedly lenient one. However, the Crown has not appealed against it. It is conceded that the sentence imposed upon the applicant is attended by error. This Court should re-sentence unless persuaded that no lesser sentence is warranted in law. I am not of that opinion.

50 It is necessary in re-sentencing the applicant to have regard to the purposes of sentencing enunciated in s 3A of the Crimes (Sentencing Procedure) Act. It is also necessary in determining the appropriate sentence for the offence to take into account the aggravating factors referred to in s 21A(2) to the extent they are relevant and known to the Court. It is further necessary to have regard to the mitigating factors referred to in s 21A(3) to the extent that they are relevant and known to the Court, and to any other matters that are required or permitted to be taken into account by the Court under any Act or rule of law. In the latter respect I have regard to the principle of parity. 51 I take into account the contents of an affidavit affirmed by the applicant on 12 January 2005. The applicant has been working regularly while in gaol. He has a good work record and a good conduct record attested to by the annexures to the affidavit. In addition to his employment in the prison he has undertaken courses to improve his skills and to assist him in dealing with his drug problem. He has maintained contact with his family and is seeing his child. 52 It is appropriate that the sentence imposed on the applicant bear appropriate proportion to that imposed on his co-offender. Recognising that the sentence to be imposed upon the applicant will be of considerably greater severity, having regard to the fact of his previous criminal history and that despite his progress towards rehabilitation, considerations of personal deterrence are properly to be reflected in the sentence. The mitigating factors set out in s 21A subs 3 (g), (h) and (i) that were reflected in the conspicuously lenient sentence on Kelly are either present or not present to the same degree in the case of this applicant. While he is entitled to credit for his plea of guilty, it was not one entered at the first opportunity, and this is a further point of differentiation between his case and that of Kelly. 53 I consider an appropriate sentence to be one of five years' imprisonment. I would allow a discount of fifteen per cent on account of the utilitarian value of the plea. I consider that it is appropriate to reflect the Judge's finding of special circumstances and to depart from the statutory proportion between the non-parole period and the head sentence. 54 For these reasons the orders that I propose are as follows:

2. Allow the appeal and quash the sentence imposed in the District Court. In lieu thereof (taking into account the offence on the Form 1):

Sentence the applicant to a non-parole period of twenty-six months to commence on 17 June 2003. The non-parole period will expire on 16 August 2005. Specify a balance of term of twenty-five months. The balance of the sentence will expire on 16 September 2000; the total term of the sentence being thus one of four years and three months imprisonment. 55 DUNFORD J: I agree. The orders of the Court will therefore be as indicated by Bell J.

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