R v Rosengren[2006] QSC 1

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

FRYBERG J

[2006] QSC 001

THE QUEEN

v.

JAMIE LEE ROSENGREN

BRISBANE

..DATE 06/01/2006

SENTENCE

HIS HONOUR:  Jamie Lee Rosengren, you have been convicted on your own plea of guilty of one count of unlawfully having possession of cannabis sativa. The offence was committed in prison, where you were serving a prison sentence. You were sentenced in June 2004 to imprisonment for 39 months, that is, three years and 3 months, for a batch of offences, the most serious of which was robbery with actual violence whilst armed.

For reasons which were, no doubt, valid, the sentencing judge recommended that you be eligible for post-prison community-based release after serving 13 months of that time. You had already served approximately 9 months, so that you could have applied for release at the expiration of approximately 4 months from the time when the sentence was pronounced. You made no such application. The sentence was pronounced in June 2004.

The offence which brings you before me today was committed in February 2005, some 3 months after you could have applied for post-prison community-based release. The result of the offence before me today was that you became ineligible whilst that offence was pending to apply for release. As a result, you have now served some 27 months of the 39-month sentence imposed upon you. On the face of things, it is the time which this offence has taken to get to be dealt with which is the most obvious cause for your not having made application since the offence was committed for release. I do not overlook the possibility that you may have considered waiting until you were eligible for release on remission, but it seems a little dubious that in your case remissions would have been granted. You have, therefore, reached a point in your sentence not only well past the date upon which you were entitled to the benefit of an early recommendation on the last occasion, but also past the point at which, under the Act, you may make application for post-prison community-based release when no recommendation has been made; that is, halfway through your sentence.

Your current offence involved possession of about 5.9 grams of cannabis. That was delivered to you in prison on the 18th of February 2005 by your girlfriend. There is no evidence that she acted on your instigation. On the contrary, she says it was her idea and apparently that you knew nothing about it. While that seems to me unlikely, I am prepared to act upon that basis. That brings me to the first unsatisfactory feature of the present case.

You have been charged with only one offence and are to be sentenced, of course, only for that offence. In fact, your girlfriend was before me yesterday and pleaded guilty to two offences (the one that results in your charge, being the second) of supplying cannabis to you. You declined to be interviewed about the matter, and your version of what happened on an earlier occasion has not been placed before me. You have, of course, had the opportunity to give evidence before me, but have not chosen to do so.

The Crown takes the view that I must ignore the fact that I know another offence was committed by reason of her plea of guilty and that I cannot take the true facts into account as part of the background in sentencing you. It seems to me that that is an incorrect view of the law. If you have committed a previous similar offence, how the fact that you have committed it is to be proved is variable from case to case. Proving your criminal history is only one way of proving the fact that you have committed a previous offence. It seems to me that it would be most material to take into account as part of the background the fact that you have committed two similar offences rather than one, if only by reason of the fact that one would be less inclined to mitigate the sentence than one would otherwise be by having that knowledge. However, in this case the Crown insists that I must ignore what I know to be the facts and proceed upon a fiction.

I deplore this approach. In my view, it is most undesirable in the public interest that judges should be denied access to the full facts. The reality, however, is that the material which is put before me on your sentence is in the control of the parties. Despite the fact that I know from sentencing your girlfriend yesterday that the other offence was committed, the Crown has chosen quite deliberately not to put that information before me on your sentence and submits that I, therefore, cannot act upon it. Given that that is the attitude of the Crown, I will proceed on the basis which the Crown suggests. It seems to me that that is not in the public interest.

There are a number of factors which mitigate the obvious aggravating factor that your offence was committed inside prison. You pleaded guilty at your committal, held on the 15th of July 2005, and although you initially refused an interview with the police, your plea of guilty is an early one and a timely one and, I think, demonstrates some willingness to cooperate in the administration of justice. You are presently aged 22 and were 21 at the time of the offence. You had a dysfunctional upbringing and were using heroin at the age of 13. Your criminal history, particularly in other States, is very substantial, although much of it relates to your time as a child. Whether anything can be done in the long term to assist you to throw off the drug habit, I do not know.

In principle, an offence committed in prison of this nature ought to attract a cumulative sentence of imprisonment, and the Crown's submission in the present case is that the appropriate sentence should be something in the range of 2 to 6 months' imprisonment to be imposed cumulatively. The Crown submits that I should recognise your cooperation with the administration of justice - as in circumstances such as the present I am bound by section 13 of the Penalties and Sentences Act 1992 to do - by making a recommendation for immediate eligibility for post-prison community-based release.

The fact is that pursuant to section 157 of the Act, I am obliged to make a fresh recommendation for post-prison community-based release. In the circumstances of this case, it is difficult to see what other recommendation might be made than the one which is suggested by the Crown. I rather doubt whether a recommendation for immediate release grants any great mitigation of sentence to you, simply because it is difficult to see on what basis a recommendation for later release could be made. But there is a more significant problem. You have now been in prison for over two years. To my knowledge you have committed one offence. I am also aware, of course, that there is another offence which you have committed, at least on the basis of what your girlfriend has admitted to, which I am being obliged by the Crown to ignore in the process of sentencing you. The consequence of that is that under section 139 of the Corrective Services Act, any board considering your release for post-prison community-based existence would have before it an offence committed in prison which is not before me. It would, therefore, under that section, not be bound by my recommendation.

That is one factor of which I know which would tend to make the recommendation useless. There may be other factors which would tend to make the recommendation useless: you may have committed other offences; you may have behaved in a way which would make it impossible to grant you post-prison community-based release; there may be factors in the guidelines operated by the Corrective Services Department which bear upon your case and which would make it impossible or improbable that you would be granted such release.

I have sought from the Crown an assurance that I have been informed of any and all such significant matters which may exist in relation to your case. It seems to me that if I am to take up the Crown's recommendation that your cooperation with the administration of justice be recognised by a recommendation, I must be assured that the recommendation will not be an empty one; otherwise, you will have received no mitigation of penalty at all, despite the provisions of section 13 of the Act. The Crown, despite an adjournment granted for the purpose, has been unable to place the matters before me which would be relevant to refusing any application for post-prison community-based release. I have been told this morning that some of those matters, namely, your record of offences in prison, and outcomes of courses undertaken or refusals to undertake rehabilitative courses, and perhaps professional reports, might be available in a week or so's time, but that it is unlikely that any assurance could be forthcoming that I had been told of all the significant factors presently known to the Corrective Services Department which would mitigate against the grant of such an application.

I protest at this approach to sentencing. In my view, the Crown is under an obligation to place before the Court all matters material to sentence which are known to the Crown at the time of sentencing. It is not good enough for the Crown to say to the Court: The matters are known, if they exist, to another department, and they are not willing to give us the information; or, It takes too long; or, It is too hard to get the information. The Court must be in possession of all relevant information at the time of sentencing, particularly in a case such as the present, where the Crown is urging that the Court comply with the obligation under section 13 to exercise its discretion by making a recommendation for post-prison community-based release.

In the circumstances, I am not satisfied that I would comply with that obligation by the process of making such a recommendation. The question then becomes how I should comply with that obligation. The only way, it seems to me, that that is possible is by some mitigation of the head sentence. When I take into account the amount of delay which has been imposed by reason of the time that you have been on remand for this offence, it seems to me that the best way to mitigate that head sentence is not by reducing the length - indeed, if I were inclined toward the lower end of the scale, as I am, it would be reducing it to very little at all - but by not reducing the amount of the head sentence, rather making it concurrent.

I appreciate that the net effect of that is that you will not serve any more imprisonment than you otherwise would have served. That, I think, is a very undesirable consequence. It is most unfortunate that I have not been given information which would be of assistance in adopting the recommendation which the Crown has made, particularly since, at your age and with your drug history, release under supervision would seem to be a very desirable outcome of your imprisonment. Desirable though that be, it is not possible.

I therefore sentence you to imprisonment for two months, such imprisonment to be concurrent with the existing imprisonment.

In accordance with my obligation under section 157 of the Penalties and Sentences Act, I recommend that you be eligible for post-prison community-based release forthwith.