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Rodgerson v The Queen [No 2] [2022] VSCA 154

The offender was sentenced following pleas of guilty to 1 count of possessing a substance, equipment or instructions for the commercial manufacture of controlled drugs contrary to s 308.4(1) of the Commonwealth Criminal Code, 1 count of conducting a business of trafficking a marketable quantity of a controlled drug contrary to ss 302.3(1) and 311.2 of the Commonwealth Criminal Code, 1 count of possessing a controlled drug contrary to s 308.1(1) of the Commonwealth Criminal Code and 1 count of failing to comply with an order under s 3LA(2) of the Crimes Act 1914 (Cth). Original sentence imposed 6 years and 5 months imprisonment with a non-parole period of 3 years and 8 months. Offender appealed on grounds that the sentencing judge erred in assessing the gravity of offending, parity, manifest excess and hardship to family or dependants.

Family and Dependants: In Mohamed, the Court accepted that, in light of Totaan, it should revisit the question of family hardship. However, it stated that Totaan did not require reconsideration of the correctness of the common law principles relating to family hardship as set out in Markovic. This Court is content to follow the approach adopted in Mohamed and treat Totaan as correctly setting out how sentencing courts should apply family hardship in the context of Commonwealth offences. Although there is an error in the sentence imposed due to the inadvertent misapplication of s 16A(2)(p) of the Crimes Act (Cth), it is not satisfied that a different sentence should be imposed. The hardship suffered by Michael, the offender’s son, as a result of the offender’s incarceration warranted some weight in the sentencing discretion. This Court agrees with the sentencing judge’s assessment that the evidence on the plea did not establish that Michael’s emotional, educational and mental needs would suffer significantly. In the absence of any new evidence regarding Michael’s circumstances, it is not possible to depart from that assessment. Weight to be given to Michael’s hardship is, at best, very modest.

Nature and Circumstances: Offending was very serious and offender’s moral culpability was high. Offending was sophisticated, planned, extended over a period of many months, committed for financial gain and ceased only upon arrest. Offending involved detailed knowledge of the operation of dark net marketplaces, encrypted communications and Bitcoin for the purpose of undertaking clandestine criminality.

Leave to appeal allowed. Appeal dismissed. Total effective sentence should be at least 6 years and 5 months imprisonment with a non-parole period of 3 years and 8 months. A lesser sentence would not be of a severity appropriate in all the circumstances of the case.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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