Supreme Court New South Wales Medium Neutral Citation: R v Rogers (No 9) [2019] NSWSC 1622 Hearing dates: 2 August 2019 Date of orders: 21 November 2019 Decision date: 21 November 2019 Jurisdiction: Common Law Before: Lonergan J Decision: Sentenced to imprisonment for 18 years commencing on 14 September 2016 expiring on 13 September 2034 with a non-parole period of 12 years expiring on 13 September 2028. You are eligible for release to parole on 13 September 2028. Catchwords: CRIMINAL LAW – sentence – offender found guilty of murder after trial by jury – offender relied upon partial defence of substantial impairment – jury rejected partial defence – diminution for culpability for murder by reason of mental state still available – discussion of objective and subjective features – sentence imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1) Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Quinn v R [2018] NSWCCA 297 R v Bell (1985) 2 NSWLR 466 R v Cadman [2019] NSWSC 634 R v Cheatham [2002] NSWCCA 360 R v Fraser [2005] NSWCCA 77 R v Mammone [2006] NSWCCA 138 R v Wood [2015] NSWCCA 231 Woodward v R [2017] NSWCCA 44 Category: Principal judgment Parties: Regina (Crown) Warren Francis Rogers (Offender) Representation: Counsel: M Hobart SC/C Young (Crown) R Pontello SC (Offender) Solicitors: Director of Public Prosecutions (Crown) Ross Hill & Associates (Offender) File Number(s): 2016/276529 Publication restriction: Nil Judgment 1. On 6 May 2019 Warren Francis Rogers, the offender, was arraigned on an indictment before a jury panel and me. The indictment contained a single count, alleging that between 12 and 13 September 2016, the offender murdered his wife, Anne Rogers. 2. The offender pleaded that he was not guilty of murder, but guilty of the lesser form of homicide, manslaughter. The Crown did not accept that plea, with the result that a jury was empanelled and the trial proceeded. 3. The offender relied on the partial defence of substantial impairment in support of a manslaughter verdict on the basis that at the time of the killing, he was suffering from an abnormality of the mind. 4. On 26 May 2019 the jury returned a verdict of murder. Evidence was taken and submissions provided on sentence on 2 August 2019, and it falls to me to sentence the offender today. 5. At face value, this is yet another domestic murder of a wife by her husband, but there is much more to this tragic story. Why did a 68 year old man who was by all accounts a solid and decent person, in a seemingly happy marriage, suffocate to death with a pillow in their own home – this healthy, beautiful and kind woman – a daughter, sister, mother, grandmother and much loved friend? Principles 1. In accordance with well-established sentencing principles, I have approached my task on the basis that all findings of fact to be made by me must be consistent with the jury verdict. Within that framework, aggravating features alleged by the Crown need to be proven beyond reasonable doubt; in contrast, matters in mitigation need only to be proven by the offender on the balance of probabilities. 2. I am required to bear in mind two important legislative guideposts: the standard non-parole period of 20 years and the maximum penalty for murder of life imprisonment. The Crown did not submit to me that this is a case that calls for life imprisonment, nor do I consider that the statutory criteria for life imprisonment have been met. 3. Having said that, I am conscious that given the age and ill health of the offender, and his conviction for murder, any sentence that I impose may well have the effect of him not living to be released on parole. However, as made clear in the case of Woodward v R [2017] NSWCCA 44 at [88], age and ill health cannot justify the imposition of a sentence that fails to have due regard to the objective gravity of the offence. 4. I also bear in mind that as stated in R v Bell (1985) 2 NSWLR 466 at 485C; R v Cheatham [2002] NSWCCA 360 at [134] and R v Fraser [2005] NSWCCA 77 at [25], diminution in culpability for murder, by reason of mental state, is not incompatible with the jury verdict that the mental state, as assessed by them, did not reduce culpability from murder to manslaughter. Facts 1. The offender was born in September 1947. He was 68 years old at the time of the offence. 2. Anne Rogers was born in December 1954. She was 61 years old at the time of the offence. 3. They married on 4 October 1975. 24 Links Avenue, Milperra was their family home for a number of years. 4. There were two children of the marriage, Olivia and Grant. They were adults and had married and moved out of the family home. 5. In 2005 the offender was diagnosed with prostate cancer and underwent removal of his prostate on 6 August 2005. 6. The offender was given Lucrin Depot injections from June 2015. Lucrin is known to have various potential side effects which include depression. 7. In about July 2013, Anne had begun communicating with an old boyfriend from school days through Facebook. His name was Jeff Langham. In February and May 2016, Anne visited him in Tasmania in the context of a romantic relationship with him. 8. On 11 July 2016 the offender discovered a phone and iPad hidden by Anne which led to him finding out about the affair with Mr Langham. The offender told her to leave. Anne left and went to stay with a friend, Chris McCormack. 9. On 18 July 2016 the offender went to see his GP Dr Liew complaining of insomnia and stress, relating to domestic issues. Dr Liew questioned him about these issues. Amongst other things he said that on 11 July during the altercation with his wife he had been "very angry because she's lying to me". Dr Liew prescribed temazepam to help him with insomnia. 10. On 22 July 2016 the offender again consulted Dr Liew and asked her to prepare a mental health care treatment plan for referral to a psychologist for counselling. Dr Liew completed a K10 form that included scoring of various parameters regarding mental health. Based on that scoring, Dr Liew concluded that the offender probably had a moderately severe mixed depression and anxiety. 11. On 29 July 2016 Dr Liew completed the referral material to the psychologist Ms Shaw. Dr Liew noted the offender's thinking, mood and sleep were not normal. She also noted that he had not much energy and was very anxious. Dr Liew noted a mixed anxiety and depression plus adjustment issues relating to the relationship breakdown, causing insomnia. She also noted that he had "a lot of mistrust and underlying anger". 12. I found Dr Liew to be an impressive, careful and considered general practitioner. I appreciate that Dr Liew is not a psychiatrist and reached her conclusion after a relatively limited assessment, however she had been the offender's general practitioner since 1986. I accept her professional assessment of the offender within that context. 13. There was a reconciliation and Anne moved back into the family home at the end of July or the start of August. 14. Both the offender and Anne consulted with the psychologist Ms Shaw on 29 July, 10 August, and 17 August and 31 August. 15. At some time in August, the offender asked Anne to "swear on her mother's grave" that she would not contact Jeff Langham again. She agreed. On 22 August 2016 there was a further argument because of email contact between Anne and Jeff Langham. In the context of that altercation Anne took a large number of temazepam tablets and was taken to hospital by ambulance. 16. On 26 August 2016 the offender told Dr Liew that he had found another email and was "very angry and furious" which Dr Liew interpreted to be because he thought she was interested in somebody else. 17. On 31 August 2016, Anne and the offender participated in another counselling session with Ms Shaw in which strategies for better understanding and relating to each other were discussed. 18. There was further contact between Anne and Jeff Langham regarding a plan to go to Vietnam with him and also liaising with him about a friend, Ronald Walker, who was travelling to Tasmania to buy a motorbike. 19. On 12 September 2016 there was a family barbecue at the home of Anne and the offender. 20. At about 7pm on that day, Anne messaged the partner of Mr Walker saying "Is Ron still going to Launceston. If so, Jeff said that he would come down and pick him up". 21. The offender discovered that Anne was still in contact with Jeff Langham and they argued about this and there was then a physical fight. 22. The fight, or part of it, occurred on the bed in the second bedroom at the Links Avenue house. 23. Anne sustained an injury to the top of her head which was consistent with a strike from a blunt object or having hit her head against the bed headrest. 24. There was bruising on Anne's arms and legs observed on autopsy that Dr Burger the forensic pathologist said was consistent with Anne having been held down by the offender. 25. There is no doubt that the offender took a pillow from the bed and used it to smother Anne to death. I also conclude that given the injuries observed on autopsy fitted in with Anne trying to get the pillow off her face, scraping her own face in that process, that there was a struggle in which Anne fought back. In reaching that conclusion I accept the evidence of Dr Burger that the petechial haemorrhages observed were consistent with possible release and reapplication of the pillow. 26. Dr Burger said that whilst no studies have been performed to prove this, it would take between 30 seconds to 120 seconds before a person will lose consciousness if their airways are blocked, and if the brain is completely deprived of oxygen for between 4 and 6 minutes, brain death results. 27. I conclude that the offender held the pillow over Anne's nose and mouth long enough so that she lost consciousness and that unconsciousness was so severe and deep, that she did not recover. 28. After this the offender wrote a note which read: "Sorry kids but she has fucked me around for the last time tonight. Sorry I have to go but I have been hurt enough and tonight she broke her promise again. With my health I am glad I am gone. Love you all. So sorry it is to end this way". 1. The offender took a number of blood thinning tablets and cut his arms and legs with razor blades and sat in the bath, in an apparent suicide attempt. At some point he also turned on both cars in the garage in an apparent attempt to gas himself. It is unclear in what order these things occurred, but there were blood spatters in multiple locations in the garage and the kitchen. 2. At approximately 2pm on 13 September 2016, a welfare check was conducted by police because Anne had not arrived at her father's house as expected. The house was locked and police had to force their way in. Anne was located deceased on the bed. The offender was in the bath, still alive, but his condition was life threatening and required emergency treatment and blood transfusions. 3. The offender was asked by a paramedic at the scene what happened and he replied: "I just found out she cheated on me for a fourth time. Let me die". 4. During his transport to hospital the offender told ambulance staff on three separate occasions that he wanted to die. At some point on 13 September the offender was scheduled under the Mental Health Act 2007 (NSW) as mentally disordered. He expressed the wish to die to hospital staff and attending police officers during 13 and 14 September 2016. 5. On 15 September 2016 the schedule was lifted by Dr Manambrakkat. He lifted the schedule because the offender was no longer suicidal and was willing to accept treatment. He concluded that the offender will need a comprehensive psychiatric assessment after he is medically stable and in a position to provide more information. Objective gravity 1. I am required to make an assessment of the gravity of what the offender has done, leaving aside the question of how and why he came to do it, although in this case, as in others, those matters can coalesce to an extent. 2. As observed by Button J in R v Cadman [2019] NSWSC 634 at [14]: "Of course, every murder is an offence of the utmost gravity, featuring as it does the criminal taking of human life in the most serious circumstances known to law. Nevertheless, the criminal law calls upon me to make some assessment of where this murder fits into the spectrum of all murders generally, not least so that I can sensibly take into account the maximum penalty and the standard non-parole period pronounced by Parliament." 1. The Crown submitted that I would be satisfied that the offender had the intention to kill Anne when he smothered her with a pillow and that this fact increases the objective seriousness of the offending. The Crown submitted that her death was not immediate, and that the evidence supports a conclusion that smothering by pillow while resisting, would have been a sustained and terrifying way to die, and that the offence was motivated by anger and resentment at Anne's continued contact with Mr Langham. These things militate towards the offending falling within the mid-range of objective seriousness. 2. On behalf of the offender it was submitted that the following matters bear upon an assessment of the objective seriousness: first, that the act causing death was completely spontaneous and unplanned; second, that the offence occurred in a highly charged emotional situation against a background of the offender having done everything he possibly could within his power to reconcile with his wife; third, that the offence occurred during a heated physical altercation on the bed which involved the offender probably being kicked a number of times; fourth, the manner in which the act causing death was committed, that is, using a readily available item of soft bedding; and fifth, that the death of Anne may have occurred quite quickly. Taking these matters into account it was submitted that the offence falls below the mid-range of objective seriousness 3. I find that the circumstances of the murder indicate nothing less than an intention to kill. The evidence demonstrates that the offender, who was clearly bigger and stronger than Anne, must have used a significant amount of force and will to hold her still and hold a pillow over her face long enough to cause her death. The fact that he may have been kicked during the altercation I find to be irrelevant. I accept that the act was completely spontaneous and unplanned and I accept that the offence occurred in a highly charged emotional situation, however it was still a murder of an innocent woman at the hands of her husband. I conclude that the offending falls within the mid-range of objective seriousness. Subjective features 1. As stated at the outset of these sentencing remarks, the jury's rejection of the partial defence of substantial impairment does not mean that the offender cannot get the benefit, as a mitigating factor, of the factual basis upon which it rested. I accept that the offender's diminished culpability operates to permit leniency in sentencing for this murder. Psychiatric Evidence 1. In November 2016, two months after the killing of Anne, the offender was reviewed by Dr Allnutt. He concluded that at the time the offender killed her, it is more likely than not that he was suffering from an undiagnosed major depressive disorder in the mild to moderate range. 2. Dr Allnutt explained persuasively that this would have increased the offender's vulnerability to overreact to highly emotive circumstances. He identified the emotional triggers of one's partner having an affair, being diagnosed with a terminal medical condition, losing one's libido in that context and then discussion about the marital relationship meant that if one has a depression, one is more likely to react emotionally and more prone to react impulsively and aggressively. Dr Allnutt said that it was his opinion that the underlying condition affected the offender's capacity to control himself when he smothered Anne, because it would have "diminished his, or caused an increase in his vulnerability to overreact with what was happening with his wife at the time." 3. Dr Martin assessed the offender in August 2017. He did not find much objective evidence in the time leading up to the offending of the offender being severely impaired, but took the view that he probably had a depressive condition of some type, specifically diagnosing an adjustment disorder. 4. Dr Martin accepted as a reasonable proposition Dr Allnutt's belief that the underlying condition made a more than insignificant contribution to the offending. 5. I have concluded that the offender's mental abnormality – which I accept based on Dr Allnutt's assessment was likely a major depressive disorder of mild to moderate severity – contributed to the offence in a material way and thus the offender's moral culpability for the offending is reduced. [1] 6. I accept the submissions made on behalf of the offender that in the context of this case, his mental impairment reduces the significance of general deterrence, notwithstanding the weight the criminal law gives to the principle of general deterrence when sentencing an offender who takes the life of his or her partner. [2] I do not accept the submission that it eliminates the significance of specific deterrence, but it certainly reduces it to a very large degree. 7. I have made a significant reduction in the sentence to be imposed given the offender's mental abnormality that I have concluded was present at the time of his offending. 8. I take into account as an aggravating factor that the offence was committed in Anne's home. 9. There was no evidence at all of premeditation by the offender. He has no criminal history and was a person of good character. 10. The offender is now 71 years old and I accept that the evidence demonstrates that he was, before the events immediately leading up to this offence, a good and kind man, moral, caring and ethical, not violent, aggressive or abusive, a good father and a good provider, with a solid employment history, having worked for the same company for 47 years. 11. It is without question that this offence was extremely out of character. All of these matters underpin some amelioration of the penalty I impose. 12. Notwithstanding the plea of not guilty to the offence of murder, there is plentiful evidence of the offender taking responsibility for taking his wife's life. I accept that he is genuinely remorseful. The Crown accepted that the offender has demonstrated some remorse but submitted that there are instances where the offender sought to minimise what had occurred, for example suggesting that Anne had asked him to kill her, which the Crown submitted indicated a lack of insight into his crime. I consider that the statements of that nature simply convey the more complicated background to the relationship between the offender and Anne as it was at that time, rather than indicating a lack of insight into what he had done, or in any way demonstrating a lack of remorse. 13. I find that the offender has very good prospects of rehabilitation. He has strong family support, including, importantly, the ongoing love and support of his adult children. I consider it entirely unlikely that he would reoffend. 14. In my view general deterrence has a more limited role to play despite this being a domestic murder by a husband of his wife in the context of an argument about her relationship with another man. 15. I am required to ensure a just sentence is passed and it must accord due recognition to the dignity of Anne who is here a victim of domestic violence. [3] However a just sentence in the context of this case, must also take into account the presence and effect of the offender's major depressive disorder that I have found was present on the day that the offender took the life of his wife. 16. It is now over three years since the offence was committed. I accept that none of the delay in the case proceeding to this time is attributable to any conduct on the part of the offender or his legal representatives. Part of the delay resulted from the first jury being unable to reach a verdict. I have observed the apparent physical effect of the trial upon the offender and I accept that even in the absence of direct evidence, I can safely infer that the trial process has been extraordinarily stressful. 17. It was submitted on behalf of the offender that his shortened life expectancy and poor health should be taken into account in eliminating the need for specific deterrence and supporting a conclusion that imprisonment will be a greater burden on the offender by reason of his poor state of health. [4] 18. Statistics provided in a report from Professor Stockler suggest that without any treatment for prostate cancer, the median survival time of men in the offender's situation would be about three years and with standard treatments, a probable survival time of between 18 months and six years. It was also noted that the offender was refusing treatment due to side effects. Professor Stockler noted that progressive metastatic prostate cancer symptoms commonly include fatigue, lack of energy, difficulty passing urine, bone pain and weight loss and closer to death, renal failure. 19. The offender has additional health problems that could significantly shorten his survival time including intermittent atrial fibrillation and asymptomatic pulmonary embolism. I take all these matters into account. 20. The Crown accepts that given the offender's health, incarceration is likely to be more onerous and that this can establish special circumstances. I have borne in mind that any reduction in the non-parole period must not result in a non-parole period that fails to reflect the objective seriousness and need for deterrence. [5] 21. I conclude these matters support a finding of special circumstances and the non-parole period I prescribe will reflect that finding. Victim impact statements 1. Finally, at the proceedings on sentence, Anne's sister Julie, a serving police officer, read a statement she wrote and also that of her brother Gregory, describing the impact Anne's death in this way that has had such a terrible effect upon their family. Both Julie and her brother were required to give evidence at the trial which must have been extremely difficult for them. Julie spoke of the horrible way she found out what had happened, and that she had to go to her father's house on the day of his 86th birthday, to tell him that his beloved daughter Anne was dead and would never be visiting him again. She spoke of her disbelief, her overwhelming sadness and her distress at not being able to save her sister. 2. Gregory's statement spoke of his distress and the devastation of his wife and daughter at this terrible event and that their father Walter who died in 2018 "died a broken man" with the knowledge that his daughter had predeceased him and above all that she was murdered. He would say to Gregory – "lucky your mother is not alive to see this". 3. The dignity of Julie and Gregory during these proceedings was remarkable. 4. A numbers of Anne's friends and other family members attended both trials and observed proceedings with a respectful attitude and demeanour which honours Anne's life and the gentle, much loved person she clearly was. 5. The children of the offender and Anne, Olivia and Grant, also gave evidence at trial. That must have been overwhelming and devastating for both of them. Both behaved in an honourable fashion and displayed an attitude of containment and dignity which was touching and appropriate. 6. A heartrending statement of Olivia, the adult daughter of Anne and the offender, captures in a very complete way the devastation she and her brother Grant have felt, trying to make sense of what happened between two people that she held on a pedestal, her loving and devoted parents, whom she looked up to with admiration and hope. She described a background of a generous and happy upbringing with present, available, kind parents who loved them and had endless time for them and, later, their children. She spoke of her internal battle of pain and distress at the loss of both her parents as a result of this crime and the "inner storm that rages in her heart every day". 7. All of these statements illustrate the emotional carnage caused by this very sad crime. 8. I extend my condolences to all of you. I hope with the conclusion of the legal proceedings today that some small degree of closure can be given but I know that the loss and sadness will continue to be experienced in a profound way, by all of you, every day. Crimes (High Risk Offenders) Act 2006 (NSW) 1. Because the offence for which the offender is to be sentenced is a serious violence offence for the purposes of the Crimes (High Risk Offenders) Act 2006 (NSW), I am required by s 25C(1) of that Act to warn the offender of the existence of the Act and its potential application to him. It seems to me in all the circumstances most unlikely any such application would ever be made however I am required by law to mention it. Conviction and imposition of sentence 1. Warren Francis Rogers, for the offence of murder of Anne Rogers you are convicted. I sentence you to imprisonment for 18 years commencing on 14 September 2016 expiring on 13 September 2034 with a non-parole period of 12 years expiring on 13 September 2028. You are eligible for release to parole on 13 September 2028. ********** Endnotes 1. Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. 2. Quinn v R [2018] NSWCCA 297 at [243] per Hoeben CJ at CL. 3. Quinn v R [2018] NSWCCA 297 at [243] per Hoeben CJ at CL. 4. R v Mammone [2006] NSWCCA 138 at [45]. 5. R v Wood [2015] NSWCCA 231. Amendments 28 November 2019 - Typographical error in paragraph 1 amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2019