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Court of Criminal Appeal 4 February 2005

Regina v Rogerson

[2005] NSWCCA 12

Theft & property

Citation: Regina v Rogerson [2005] NSWCCA 12
Court: New South Wales Court of Criminal Appeal
Date: 4 February 2005
Judge(s): Bell J; Dunford J (agreeing)

Background

The applicant pleaded guilty in the District Court at Campbelltown to aggravated breaking, entering and stealing at a dwelling house, committed in the company of a co-offender on 17 June 2003. The victim was at home during the offence, witnessed the break-in, and was in a highly distressed state. The applicant was arrested inside the premises and a Form 1 offence of possessing housebreaking implements was also taken into account at sentencing.

The applicant had an extensive criminal history dating to 1988, including prior convictions for breaking, entering and stealing, and a long history of drug abuse. At sentencing in the District Court, Judge Maguire imposed a sentence that the applicant argued was excessive. He sought leave to appeal against the severity of that sentence.

The co-offender, David Kelly, had been dealt with separately and received a more lenient sentence, in circumstances that included full admissions in a police interview and a plea entered at the first opportunity. The disparity between the two sentences was a central consideration on appeal.

  • Whether the sentence imposed by the District Court was manifestly excessive
  • How the standard non-parole period of five years (applicable to offences in the middle range of objective seriousness under s 112(2) of the Crimes Act 1900) should inform the sentence
  • Whether the parity principle required the applicant's sentence to bear appropriate proportion to the sentence imposed on his co-offender
  • What credit should be given for the applicant's guilty plea, given it was not entered at the first available opportunity
  • Whether special circumstances justified a departure from the statutory ratio between the non-parole period and the balance of the sentence

Decision

The Court of Criminal Appeal granted leave to appeal and found that resentencing was warranted. Bell J identified that the mitigating factors present in the co-offender Kelly's case, including full admissions and an early guilty plea, were either absent or present to a lesser degree in the applicant's case. This justified a sentence of considerably greater severity for the applicant, reflecting his criminal history and the ongoing relevance of personal deterrence.

The Court adopted a starting point of five years' imprisonment before applying a 15 per cent discount for the utilitarian value of the guilty plea, resulting in a head sentence of four years and three months. The plea was not entered at the first opportunity, which was expressly noted as a point of differentiation from Kelly's position and a reason for the lesser discount.

The sentencing judge's finding of special circumstances was accepted, justifying a departure from the standard statutory proportion between the non-parole period and the balance of term. The Court set a non-parole period of 26 months (commencing 17 June 2003) and a balance of term of 25 months.

Bell J also noted the applicant's progress in custody, including consistent employment, completion of courses, engagement with drug rehabilitation, and maintenance of family contact, as matters properly taken into account alongside the parity principle.

Orders Made

  • Leave to bring the appeal granted
  • Appeal allowed; sentence imposed in the District Court quashed
  • In lieu thereof (taking into account the Form 1 offence): non-parole period of 26 months commencing 17 June 2003, expiring 16 August 2005; balance of term of 25 months, expiring 16 September 2007; total sentence of four years and three months imprisonment

Key Takeaways

  • The Court of Criminal Appeal confirmed that the parity principle requires a co-offender's sentence to bear appropriate proportion to sentences imposed on others involved in the same offence, but differences in criminal history, plea timing, and cooperation justify significant variation.
  • A guilty plea not entered at the first available opportunity attracts a reduced utilitarian discount; the Court here applied 15 per cent rather than the higher discount available for early pleas.
  • Under s 112(2) of the Crimes Act 1900, the standard non-parole period of five years applies to offences in the middle range of objective seriousness, providing a benchmark from which the sentencing court works upward or downward.
  • Special circumstances, as found by the original sentencing judge, may justify departing from the standard statutory proportion between the non-parole period and the balance of term under the Crimes (Sentencing Procedure) Act 1999.
  • Positive conduct in custody, including employment, rehabilitation efforts, and family engagement, constitutes a relevant matter on resentencing, though it does not displace considerations of personal deterrence for an offender with a lengthy criminal history.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2) (aggravated breaking, entering and stealing); s 558 (recognizances)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspended sentences); s 21A (aggravating and mitigating factors); s 33 (Form 1 offences); Div 1A of Pt 4 (standard non-parole periods)

Cases
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- Regina v Brett [2004] NSWCCA 372
- 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