Citation: Regina v Barry William John Rodgers [1999] NSWCCA 260
Court: NSW Court of Criminal Appeal
Date: 6 August 1999
Judge(s): Levine J; Carruthers AJ
Background
The appellant was convicted in the Sydney District Court of eleven counts of sexual offences against six male victims aged between approximately six and twelve years old. The offences were committed over a period spanning 1974 to 1989, when the appellant was aged between 37 and 51. Acting Judge Nash sentenced the appellant on 19 February 1998.
The offences involved repeated acts of indecent assault, including fondling and oral acts, committed in domestic and camp settings where the appellant held positions of trust over the victims. The sentencing judge also took into account a further eleven similar offences on a Form 2 (a document recording additional offences to be considered during sentencing without separate conviction). The appellant had prior convictions in New Zealand for similar offences in 1962, 1965, and 1996.
The appellant sought leave to appeal the sentences imposed. He had initially appeared unrepresented at an earlier hearing after being refused legal aid, but had the benefit of legal representation before the Court of Criminal Appeal on this occasion.
Legal Issues
- Whether the total sentence imposed, including the maximum penalty for count eleven, was appropriate given the objective seriousness of the offending and the application of the totality principle.
- Whether the sentencing judge properly applied the principle from Regina v Close concerning the availability of pre-sentence custody as a special circumstance.
- Whether the sentencing judge gave adequate consideration to the appellant's age and its relevance to special circumstances.
- Whether the sentencing judge erred in declining to depart from the usual minimum-to-additional-term ratio by finding special circumstances.
- As a subsidiary issue, whether an overlap between ss 81 and 61E of the Crimes Act 1900 (NSW), created by the operation of s 55 of the Interpretation Act, affected the applicable maximum penalty for certain counts.
Decision
The Court granted leave to appeal and allowed the appeal in respect of the sentence imposed for count eleven, which had attracted the maximum penalty of ten years penal servitude. The central basis for intervention was that the sentencing judge appeared to have imposed the maximum sentence while not finding the offending to be in the worst category of cases. Features that took the conduct below the worst category included the pleas of guilty, the appellant's voluntary disclosure of an offence against a victim where no other evidence existed, and the absence of anal intercourse.
The Court identified two further grounds for intervention. First, under principles established in Regina v Close, pre-sentence custody served by the appellant in New Zealand was capable of constituting special circumstances warranting a departure from the usual ratio between the minimum and additional terms. Second, while the sentencing judge had referred to the appellant's age, the Court considered it had not been given sufficient weight as a relevant factor in the context of special circumstances.
The Court declined to resolve the statutory construction question concerning the overlap between ss 81 and 61E during the period July 1981 to June 1984, and the resulting uncertainty about whether the applicable maximum for some counts was four years, five years, or six years. The Court considered that question did not need to be determined because the sentence for count eleven provided a practical vehicle for intervention that could accommodate the necessary adjustment.
Taking into account totality, the pre-sentence custody, the appellant's age, and the nature of the custody the appellant would be required to serve, the Court substituted a total sentence of eight years penal servitude for count eleven, structured as a minimum term of five years and six months and an additional term of two years and six months.
Orders Made
- The sentence imposed in relation to count eleven was quashed.
- In substitution, the appellant was sentenced to a minimum term of five years and six months, commencing 22 April 1997 and expiring 21 October 2002.
- An additional term of two years and six months was imposed, commencing 22 October 2002 and expiring 21 April 2005.
- The appellant's earliest eligible parole date was set at 21 October 2002.
Key Takeaways
- A maximum sentence is reserved for offences in the worst category of cases; imposing a maximum penalty while simultaneously finding the conduct does not reach that threshold constitutes a basis for appellate intervention.
- Pre-sentence custody served in another jurisdiction can constitute special circumstances, warranting a departure from the usual ratio between minimum and additional terms under the principles established in Regina v Close.
- An offender's age, while commonly noted at sentencing, must receive genuine weight when it bears on the conditions and impact of custody; a mere reference without substantive consideration may leave a sentence open to review.
- The Court of Criminal Appeal declined to resolve the statutory construction question arising from the overlap between ss 81 and 61E of the Crimes Act 1900 (NSW) during the 1981 to 1984 period, leaving that issue for a case where its resolution is determinative.
- In applying the totality principle to multiple serious sexual offences, courts must ensure the aggregate sentence reflects the overall criminality without producing an outcome that exceeds what that overall criminality warrants.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61D(1), 61E(1), 81
- Criminal Procedure Act 1986 (NSW), s 21
- Interpretation Act 1987 (NSW), s 55
Cases:
- Regina v Close (not further identified in the judgment)
- Regina v Sweeney (Court of Criminal Appeal, unreported, 14 July 1998)