DPP v Rogers, Luke [TASCCA]

• Jurisdiction: Tasmania
• Judge: Evans J,Porter J,Wood J
• Judgment Date: 09 November 2011
• Date: 09 November 2011
• Court: Court of Criminal Appeal
• Docket Number: 162/2011

[2011] TASCCA 17

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Evans, Porter and Wood JJ

162/2011

Director of Public Prosecutions

and

Rogers, Luke

DPP v Blyth [2010] TASCCA 10 , referred to.

Aust Dig Criminal Law [3521]

Criminal Law — Appeal and new trial — Appeal against sentence — Grounds for interference — Sentence manifestly excessive or inadequate — Crown appeal alleging manifest inadequacy — Course of conduct involving one count of committing an act intended to cause bodily harm and three counts of assault — Sentence of two years' imprisonment with parole eligibility after 18 months manifestly inadequate.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Evans J

1 The appellant, the Director of Public Prosecutions, contends that a global sentence imposed on the respondent of two years' imprisonment, subject to parole eligibility after serving 18 months of the sentence, is manifestly inadequate. The sentence was imposed by Tennent J upon the respondent's plea of guilty to the following charges in respect of his conduct on a night in September 2010:

• •Count 1 – assault by punching and/or kneeing Mark Siggins to the head and body.

• •Count 2 – committing an unlawful act intended to cause bodily harm in that, with intent to disable or do grievous bodily harm to Mark Siggins, he caused actual bodily harm to him by stabbing him with a knife to the neck and back.

• •Count 3 – assault by way of a threatening gesture in that he waved a knife in the direction of Maddison Cave and said words to the effect of, ‘You're next’.

• •Count 4 – assault by punching Levette Reynolds to the face.

Facts

2 On 16 September 2010 one of the complainants, Mark Siggins, and his daughter, Roxanne, then aged 14, were residing in a unit in a complex of units at Bridgewater. Michelle Cave and her children were staying with Mr Siggins. The respondent's brother, Jonathon Rogers, resided in the same complex. Mr Siggins and Jonathon Rogers were friends. On the night of 16 September 2010 Jonathon Rogers and Mr Siggins were drinking together in Mr Siggins' unit. They had also been drinking together at a hotel earlier that day. At about 11pm, they were joined in Mr Siggins' unit by the respondent. Others present included Mr Siggins' daughter, Roxanne, Michelle Cave and Levette Reynolds, who resided in a unit in the same complex. Something Levette Reynolds said to Jonathon Rogers precipitated an argument that involved Roxanne. When Jonathon Rogers screamed at Roxanne, her father, Mr Siggins, intervened. Jonathon Rogers turned on Mr Siggins verbally and punched Roxanne in the face. The respondent scruffed Mr Siggins and he and his brother Jonathon punched and kneed Mr Siggins to the face and upper body causing his face to bleed. Jonathon Rogers at times tried to restrain the respondent, only to join in again when he was unsuccessful. This conduct is the basis of the respondent's conviction on count 1.

3 The respondent moved away from Mr Siggins, went to a kitchen drawer in the unit and returned armed with a knife. Whilst holding the knife the respondent punched Mr Siggins causing five wounds. Jonathon Rogers restrained the respondent, and Mr Siggins fled from his unit. Roxanne Siggins witnessed some of the incident before fleeing the unit. The entire incident was witnessed by Michelle Cave. It is this conduct that is the subject of the respondent's conviction on count 2 for committing an unlawful act intended to cause bodily harm.

4 After fleeing from his unit Mr Siggins found Roxanne and together they walked to a nearby home. He was having difficulty breathing and an ambulance was called.

5 As the respondent and his brother departed from Mr Siggins' unit, the respondent waved the knife he was holding in the direction of Michelle Cave's daughter Maddison, then aged 12, and said, ‘You're next’. This conduct is the basis of the respondent's conviction on count 3 for assault by a threatening gesture.

6 After leaving Mr Siggins' unit, the respondent went straight to the unit of Levette Reynolds. She heard banging on the front door of her unit and a male voice asking for her flatmate. She opened the door and was surprised to find that it was the respondent. He entered the unit and asked where her flatmate was before punching her twice to the face. She sustained a minimally depressed fracture of the anterior right maxilla. She ran and hid in her room. This conduct is the basis of the respondent's conviction on count 4 for assault.

7 When police arrived at the complex, the respondent and his brother were located in his brother's unit and a broken knife was located on the floor. The respondent was intoxicated.

Submissions on the sentencing hearing

8 In the course of the sentencing hearing the submissions made by the respondent's counsel to the learned sentencing judge included the following. The respondent had no recall whatsoever of the events of the night in question, but accepted that he was criminally responsible for that which had occurred. He did not know why it had happened. He was intoxicated, having consumed alcohol throughout that day. The alcohol included beer, whisky and ‘some fruit wine’. He had not knowingly consumed any drugs of an illicit nature. He considered Mr Siggins to be a good bloke and was deeply remorseful for what he had done to him. The respondent had not been violent prior to the altercation precipitated by his brother shouting at Roxanne. The threat made to Maddison Cave, as the respondent and his brother were leaving, was of the nature of an aside. This threat was the only violence she was subjected to. The respondent had indicated that he would plead guilty at the earliest opportunity.

9 The learned sentencing judge was told that for a number of months prior to the crimes in question, the respondent had attended counselling in relation to his abuse of drugs, and psychological problems. Initially he had attended the counselling pursuant to a term of his bail and, subsequent to 2 July 2010, he attended pursuant to the terms of a drug treatment order that had been imposed on him. During this period the respondent attended every appointment and had passed every random drug test. He had found this structured arrangement to be beneficial. He was now fully aware of the benefit of the counselling opportunities and resources available to someone in his circumstances and he intended to take advantage of them upon his release. Her Honour was also told that the respondent was essentially functionally illiterate.

10 Counsel for the respondent requested that the learned sentencing judge grant the respondent early parole eligibility and submitted that it was desirable that the respondent be subject to the supervision of a parole officer when released. Counsel submitted that this support would be vital to the respondent overcoming his problems and made the point that prior to the respondent's last lapse he had been on the road to rehabilitating himself. Counsel submitted that the respondent was not beyond redemption.

Prior record

11 As observed by the learned sentencing judge, the respondent has an appalling record which began when he was 14 years of age. It contains many traffic-related offences, including ten convictions for...