Citation: R v Rogerson; R v McNamara (No 57) [2016] NSWSC 1207
Court: Supreme Court of New South Wales
Date: 2 September 2016
Judge: Bellew J
Background
Two former NSW police officers stood for sentencing following a four-and-a-half month jury trial. The jury found both men guilty of murdering a 20-year-old university student and of supplying 2.78 kilograms of methylamphetamine, an amount not less than the large commercial quantity under NSW law.
The Crown case was that the two offenders had planned and executed a joint criminal enterprise to kill the deceased and steal a large quantity of drugs from him for profit. The planning included acquiring an untraceable motor vehicle and arranging access to a boat capable of disposing of the deceased's body at sea.
At trial, each offender presented a version that effectively blamed the other. One offender argued he had acted under duress after the other shot the deceased. The jury rejected both accounts and returned verdicts of guilty on both counts.
Legal Issues
- Whether the murder offending fell within the worst category of cases, justifying the imposition of a life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether the court could treat duress as a mitigating factor on sentence, where the jury had convicted and in doing so rejected a duress defence at trial
- What findings of fact were open to the sentencing judge regarding the circumstances of the offending, consistent with the jury's verdicts
- The relevance and weight to be given to subjective mitigating circumstances in light of the gravity of the offending
- The significance of the offenders' former status as police officers for the purposes of general deterrence
Decision
Bellew J found that the murder fell into the worst category of cases warranting a life sentence. The judge identified a combination of features: extensive premeditation, the acquisition of an untraceable vehicle, access to a boat for disposal of the body, the deliberate targeting of the deceased to steal drugs for profit, and the vulnerability of the deceased in the circumstances. No meaningful distinction could be drawn between the roles of the two offenders.
On the duress question, his Honour held that where a jury has rejected a duress defence and returned a verdict of guilty, it is not open to the offender to rely on duress as a mitigating factor at sentence. The basis for the jury's rejection of that defence is unknown, but the verdict itself forecloses the factual foundation necessary to support duress in mitigation.
Both offenders had limited subjective features that might otherwise weigh in their favour. His Honour accepted the principle that where offending is of sufficient gravity, mitigating circumstances may be of such limited significance that they should effectively be disregarded. The court concluded that this was such a case.
The fact that both offenders were former police officers did not aggravate the offending as such. However, Bellew J found it relevant to general deterrence that the offenders had used knowledge and skills acquired during their police careers to plan and conceal the crimes. A strong deterrent sentence was warranted to address the particular risk of persons in similar positions misusing law enforcement experience.
Orders Made
- Glen Patrick McNamara: convicted of supplying a prohibited drug, sentenced to a non-parole period of 9 years commencing 25 May 2014, expiring 24 May 2023, with an additional term of 3 years expiring 24 May 2026
- Glen Patrick McNamara: convicted of the murder of the deceased, sentenced to life imprisonment commencing 25 May 2014
- Roger Caleb Rogerson: convicted of supplying a prohibited drug, sentenced to a non-parole period of 9 years commencing 27 May 2014, expiring 26 May 2023, with an additional term of 3 years expiring 26 May 2026
- Roger Caleb Rogerson: convicted of the murder of the deceased, sentenced to life imprisonment commencing 27 May 2014
Key Takeaways
- Under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a life sentence is warranted where the totality of the circumstances places the offending in the worst category of murder cases; extensive premeditation, planning for concealment, and killing for financial gain all pointed strongly in that direction here.
- Where a jury rejects a defence of duress and convicts, the factual premise necessary to support duress as a mitigating factor on sentence is foreclosed, and the sentencing court cannot treat it as a matter in the offender's favour.
- Sufficient gravity of offending can render subjective mitigating circumstances of such limited weight that they are effectively disregarded in the sentencing exercise.
- Former police status does not automatically aggravate an offence, but the Supreme Court found it directly relevant to general deterrence where the offenders demonstrably deployed law enforcement knowledge and experience in the commission of the crimes.
- In making findings of fact for sentence, the court is bound to proceed consistently with the jury's verdicts and must not resolve factual issues in a manner that contradicts what those verdicts necessarily establish.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 61(1)
Cases
- Adanguidi v R (2006) 167 A Crim R 295; [2006] NSWCCA 404
- Burrell v R (2007) 190 A Crim R 148; [2007] NSWCCA 65
- R v Arthurell (NSWSC, 3 October 1997, Hunt CJ at CL, unreported)
- R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469
- Knight v R (2006) 164 A Crim R 126; [2006] NSWCCA 292
- R v Isaacs (1997) 41 NSWLR 374
- R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19
- R v Olbach (2005) 65 NSWLR 75; [2005] NSWCCA 440
- R v Previtera (1997) 94 A Crim R 76
- R v Twala (NSWCCA, 4 November 1994, unreported)
- Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215