Director of Public Prosecutions v Hogan
[2024] ACTSC 245
•1 August 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Hogan |
Citation: | [2024] ACTSC 245 |
Hearing Date: | 25 July 2024 |
Decision Date: | 1 August 2024 |
Before: | Hopkins AJ |
Decision: | See [119]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order Assessment – family violence offences – choking and strangulation – impersonating territory official – contravention of family violence order – coercion and controlling behaviour viewed in context – where the Court is not satisfied that substance dependency substantially contributed to part of offences sought to be incorporated into a Treatment Order – history of non-compliance with community based orders and family violence orders – childhood trauma and complex history of disadvantage – Bugmy principles – Drug and Alcohol Treatment Order not imposed – rehabilitation through parole |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 34B, 35, 46K, 72, 80S Crimes Act 1900 (ACT) ss 28, 30 Criminal Code 2002 (ACT) ss 44, 362 Family Violence Act 2016 (ACT) Preamble, ss 8, 43 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 |
Texts Cited: | Vanessa Edwige and Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, June 2021) |
Parties: | Director of Public Prosecutions ( Crown) Maxwell Monaro Hogan ( Offender) |
Representation: | Counsel C Daly ( Crown) S Lynch ( Offender) |
| Solicitors ACT Director of Public Prosecutions Aboriginal Legal Service (NSW/ACT) ( Offender) | |
File Number: | SCC 134 of 2024 SCC 135 of 2024 |
HOPKINS AJ:
Introduction
1․Max Hogan, today you are to be sentenced for a significant number of offences, including family violence offences committed against the mother of your child. These are serious family violence offences. For this reason, a substantial term of imprisonment must be imposed upon you.
2․Because you are dependent on illicit substances and this dependency substantially contributed to your offending, you have asked that I make a Drug and Alcohol Treatment Order (Treatment Order).
3․I have decided not to make a Treatment Order. This is because I am not satisfied that your dependency on alcohol or a controlled drug substantially contributed to the offences you committed whilst you were imprisoned at the Alexander Maconochie Centre (AMC). I am also not satisfied that you have demonstrated that you are ready to comply with the strict supervision regime that would be imposed on you under a Treatment Order.
4․You will be sentenced to a total of 3 years imprisonment commencing from 6 February 2024 and ending on 5 February 2027. I will set a nonparole period of 14 months commencing on 6 February 2024 and ending on 5 April 2025.
5․I know that this will be disappointing for you. I hope that you will use the further time that you must spend in prison to strengthen your commitment to rehabilitation and create a foundation for a future that looks different to your past. This will enable you to become the stable loving father that you want to be.
6․I will now explain the reasons for the sentence I will impose and why I have not made a Treatment Order.
The offences
7․You are to be sentenced for a total of eight offences:
(a)One offence of aggravated intentional threat to kill (CAN 1475/2024), with a maximum penalty of 13 years imprisonment: s 30 of the Crimes Act 1900 (ACT) (Crimes Act);
(b)One offence of aggravated choke/suffocate/strangle (CAN 1470/2024) with a maximum penalty of 7 years imprisonment: s 28(2)(a) of the Crimes Act;
(c)Three offences of contravening a family violence order (CAN 1473/2024; CAN 1825/2024; CAN 3681/2024), each with a maximum penalty of 5 years imprisonment: s 43(2) of the Family Violence Act 2016 (ACT) (Family Violence Act);
(d)Two offences of attempting to contravene a family violence order (CAN 2349/2024; CAN 3680/2024), each with a maximum penalty of 5 years imprisonment: s 43(2) of the Family Violence Act and s 44 of the Criminal Code 2002 (ACT) (Criminal Code); and
(e)One offence of impersonating a police officer (CAN 2512/2024) with a maximum penalty of 6 months imprisonment: s 362(2) of the Criminal Code.
8․For each offence where a term of imprisonment can be imposed, a fine can also be imposed in addition to or instead of imprisonment.
9․The facts relating to these offences can be summarised as follows.
25 January 2024 offences – CAN 1475/2024; CAN 1470/2024 and CAN 1473/2024
10․On 25 January 2024, you were in an intimate relationship with the victim of these offences, with whom I will identify by the pseudonym “Olivia Nathans”. You have an infant son together.
11․On 21 July 2023, the ACT Magistrates Court issued a family violence order (FVO) which listed you as the respondent and Ms Nathans as the protected person. This order was intended to protect Ms Nathans. It did not prevent you from having contact and spending time with her. It did prohibit you from engaging in family violence towards her.
12․On the night of 24 January 2024, at around 9pm, you arrived at the house where Ms Nathans was staying. You were heavily intoxicated by alcohol. You had two bottles of alcohol with you and a number of nitrous oxide capsules. You and Ms Nathans ate dinner together. I do not know how much more alcohol you consumed or the extent of your use of nitrous oxide that night.
13․At around 1:00am on 25 January 2024, Ms Nathans was in her bedroom. You came in, walked over and jumped on her. You grabbed her throat with both hands and began choking her. She struggled, attempting to break free. You stayed on top of her and continued to apply pressure to her throat, stopping her from breathing, including for one period of approximately 15 seconds (CAN 1470/2024).
14․During the time that you choked her, you said words to the effect of, “I’m going to kill you, you fat slut, I don’t want our son” (CAN 1475/2024).
15․You and Ms Nathans fell from the bed onto the floor. You released your hands from her neck.
16․You then went to the kitchen and grabbed a pair of scissors. You returned to the doorway of the bedroom, where you held the scissors to your own throat and told Ms Nathans you were going to “end it like [your] brother”.
17․You then grabbed a knife from the kitchen and returned to the bedroom. You held the knife against Ms Nathan’s throat and again said words to the effect of “I’m going to kill you, you fat slut, I don’t want our son” (CAN 1475/2024).
18․Ms Nathans managed to talk you down. Both of you left the house. Once outside, Ms Nathans ran off and hid in some grass. You paced around looking for her, shouting words to the effect of “come out [redacted], I’m going to kill you”.
19․At 1:17am Ms Nathans called 000. Police arrived at about 1:22am. When they found Ms Nathans, she was visibly shaking and crying. You could not be located. Ms Nathans was transported to hospital where she was treated for grazes to her left shoulder, bruising to her upper left arm and abrasions to her lower left arm.
6-14 February 2024 offences – CAN 1825/2024; CAN 2512/2024 and CAN 2349/2024
20․On 2 February 2024, the FVO was amended to prohibit you from contacting Ms Nathans.
21․You were arrested on 6 February 2024. The amended FVO was served on you whilst you were in custody. Bail was refused on 7 February 2024. You were remanded in custody and taken to the AMC.
22․During the intake process at the AMC, you asked to add Ms Nathans as a contact person. At 2:55pm that same day, an ACT Corrective Services (ACTCS) staff member contacted Ms Nathans for you and asked her if she wished to speak with you. She said that she did. The ACTCS staff member asked Ms Nathans if there were any court orders that prohibited contact. Ms Nathans confirmed that there were no such court orders. You then spoke with Ms Nathans for about 10 minutes in breach of the FVO (CAN 1825/2024).
23․I have read the transcript of the call. You were clearly in distress. It is apparent that you were talking about ending your life. It is also clear that you were fearful that Ms Nathans would see other people, ending your relationship. There are parts of this call in which you suggested Ms Nathans was responsible for the fact that you were in custody.
24․On 10 February 2024, you called Access Canberra from the AMC, claiming to be a police officer. This is the offence of impersonating a police officer (CAN 2512/2024). You asked if infringement and speeding fines issued to Maxwell Hogan had been paid. No information was provided to you. You asked for the call to be transferred. The call-taker told you this was not possible.
25․On 11 February 2024 at 11:18am, you called the National Australia Bank (NAB) from the AMC. You claimed to have dementia and requested a conference call with your “support worker”. After repeated requests you were eventually transferred to Ms Nathans’s number. She did not pick up the call. This is one of the offences of attempting to contravene a FVO (CAN239/2024).
26․At 2:05pm on 11 February 2024, you called the National Australia Bank (NAB) from the AMC. You again claimed to have dementia and requested a conference call with your “support worker”. After repeated requests you were transferred to a number which was answered by Ms Nathans. You spoke with her for 3 hours and 10 minutes in breach of the FVO (CAN 1825/2024 cont.). She was together with your infant son, and you spoke directly to him at times.
27․During the call you made repeated references to self-harming. You also repeatedly accused Ms Nathans of “cheating” on you. The call ended with you making a final threat of self-harm and screaming at Ms Nathans.
28․I have read the transcript of this call too. It is deeply distressing. At times you were despairing and full of self-hatred. At times you were jealous and fearful. For much of the call you were seeking assurance from Ms Nathans that she loved you and would not leave you. It is also clear that you were telling Ms Nathans that if she left you, you would end your life. There are other disturbing parts of the call in which you were seeking to exercise control over Ms Nathans’s appearance and capacity to engage with or have relationships with others.
29․I will not refer to the details. It is important for you to understand that these efforts to control Ms Nathans constitute family violence: s 8 of the Family Violence Act.
30․On 12 February 2024 at 9:04am, you again called NAB from the AMC, claiming to have dementia and asking for the called to be transferred to Ms Nathans. Your call was transferred, and you spoke with Ms Nathans for approximately 40 minutes in breach of the FVO (CAN 1825/2024 cont.).
31․Your conversation with Ms Nathans on this occasion began with you accusing her of cheating on you. You expressed self-hatred, fear and distrust. You demanded assurances that she would be faithful and asked that she prove this to you by recording herself on a daily basis whilst you were in custody. Again, it is apparent that through much of the call you were seeking to exercise control over Ms Nathans to make yourself feel more secure.
32․At 10:29am on 12 February 2024, you again called NAB from the AMC claiming to have dementia and asking for the call to be transferred. You were again transferred to Ms Nathans and you spoke together for approximately 1 hour in breach of the FVO (CAN 1825/2024 cont.).
33․Your conversation included you accusing her of being with someone else and not loving you. You also blamed her for your arrest.
23 February 2024-7 March 2024 offences – CAN 3680/2024 & CAN 3681/2024
34․On 24 February 2024, you made two calls to the NAB from the AMC at 2:03pm and 5:24pm. On both occasions, you claimed to have dementia and asked to be transferred to your “support worker”. On both occasions, the call-taker tried to transfer the call without success. These were attempts to contravene the FVO (CAN 3680/2024).
35․On 25 February 2024 at 11:15am you used an account of another detainee to call the NAB and requested your call be transferred to your “support worker”. The call was eventually transferred and you spoke with Ms Nathans for approximately 1 hour and 45 minutes in breach of the FVO (CAN 3681/2024). During this call both you and Ms Nathans accused one another of being unfaithful.
36․On 25 February 2024, you tried twice more to contact Ms Nathans via the NAB, at 3:24pm and 4:08pm, using the same method. On each occasion you were unsuccessful. These, too, were attempts to contravene the FVO (CAN 3680/2024).
37․On 27 February 2024 at 1:49pm, you used the account of another detainee at the AMC to contact Winnungah Nimmityjah Aboriginal Health and Community Services (Winnungah), requesting they transfer you to Ms Nathans. You again referred to Ms Nathans as your “support worker”, using a similar method of deception. Efforts to transfer you were unsuccessful. This was another attempt to contravene the FVO (CAN 3680/2024).
38․At 2:09pm on 27 February 2024, you called Winnungah again and succeeded in having your call transferred to Ms Nathans. You spoke with her over a period of nearly 50 minutes in breach of the FVO (CAN 3681/2024).
39․On 7 March 2024, you called Ainslie Village Argyle Housing from the AMC and arranged to have the call transferred to Ms Nathans. You spoke with Ms Nathans for approximately 20 minutes in breach of the FVO (CAN 3681/2024).
Impact on the victim
40․Ms Nathans has not provided a victim impact statement to the Court. She has also declined to participate in any interview with the police in relation the offences.
41․Despite this, there is no doubt that the offences you committed against her on 25 January 2024 caused her extreme fear. She will live with the memory of being unable to breathe as you choked her, of your threat to kill her at this time and later, as you held a knife to her throat. When police arrived, she was shaking and crying. She was later transported to the hospital suffering the injuries I have referred to above at [19].
42․It is more difficult to assess the impact of your repeated contraventions of the FVO by contacting Ms Nathans form the AMC. Despite some of the distressing content of the conversations, it does appear that she chose to have these conversations with you. This choice must be understood in the context of the relationship that you have had with her, which involves serious acts of family violence committed by you against her.
43․Ms Nathans did not experience harm as a consequence of your attempted breaches of the FVO. However, every time a person contravenes an FVO, the important protection that is provided by such orders is challenged. This harms the community.
Objective seriousness – family violence offences
44․An assessment of the seriousness of your offending on each occasion requires consideration of “the nature of family violence and the context of the offending”: s 34B(1) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
45․Family violence is unacceptable in any form. Freedom from family violence is a human right. This freedom must be respected and protected. Family violence is mostly committed by men against women and children and extends beyond physical violence. It involves exploitation of power imbalances and patterns of abuse, including coercive and controlling behaviour. Addressing family violence requires promoting accountability of perpetrators and appropriate intervention: Preamble of the Family Violence Act.
46․There are a number of features of your offending on 25 January 2024 which are relevant to assessing the seriousness of what you did: see DPP v Pardreny [2024] ACTCA 4 at [131]-[134]. You used two hands to choke Ms Nathans for a significant time, including for a period of 15 seconds when you prevented her from beathing. You are a strong man. She was weaker than you and in a vulnerable position, on a bed at home, in a place where she was entitled to feel safe. Your conduct was deliberate, though there is no evidence of premeditation or planning. Ms Nathans suffered injuries, but there is no evidence of any injury to her throat or neck.
47․At the time of choking Ms Nathans, you threatened to kill her. Because you issued the threat at a time when you had her life in your hands, this threat must have been particularly terrifying. The words you used were degrading and involved a rejection of your son. You then held a knife to Ms Nathans’ throat and again threatened to kill her. You made this second threat after threatening to take your own life. This was a clear indication of how distressed and unstable you were at the time. In that moment you had the capacity to kill her. I have no doubt that Ms Nathans feared she might die.
48․After Ms Nathans escaped from you, the threats continued until shortly before the police arrived. Your offending was committed over a period of approximately 20 minutes.
49․Assessing the objective seriousness of each offence cannot be undertaken without recognising that the violence involved in choking Ms Nathans overlapped with the violence involved in threatening to kill her. All of these acts of violence together constitute a serious breach of the FVO on this occasion and are aggravated because they were committed in breach of that order.
50․Assessing the objective seriousness of the repeated contraventions and attempted contraventions of the FVO that you committed whilst imprisoned at the AMC is difficult. It can be understood as an ongoing course of conduct until your behaviour was detected. Many of the offences were “rolled up” charges where a single charge reflects offending that could have been separately charged. “[T]he criminality encompassed in a rolled-up count is greater than that of an individual count”: Director of Public Prosecution (Cth) v Watson [2016] VSCA 73 at [82].
51․Your offending was planned and premeditated but it was relatively unsophisticated. It was highly unlikely that you would escape detection, and perhaps surprisingly, you were successful in your deception of so many call-takers who you managed to persuade to connect or attempt to connect you with Ms Nathans. You showed a significant degree of contempt for the FVO, which was an order of the Court designed to protect Ms Nathans.
52․On the other hand, the contraventions involved telephone calls that Ms Nathans accepted. On the first occasion, she did so after actively confirming that there was no FVO in place. This means that I must sentence you in circumstances where the “beneficiary of the order was not relying on the benefit of the order”: R v KAS [2021] ACTSC 109 at [12].
53․In considering the extent to which this reduces the seriousness of your offending, I note that Ms Nathans’ choice to accept your calls must be understood in the context of your previous violence towards her. This is not to deny her autonomy. Rather, it is to recognise the complexity of behaviour in the context of family violence.
54․That said, compliance with your obligations under the FVO was not in any way optional or dependent of the view Ms Nathans took in relation to the FVO from time to time.
55․Finally, it is critical to take into account that, at times during the calls, what you said to Ms Nathans constituted family violence. It was coercive and controlling.
Plea of guilty
56․You pleaded guilty to each offence at an early opportunity. No briefs of evidence were prepared or provided to you. This has saved the community significant time and expense. It also means that Ms Nathans was not required to give evidence.
57․The prosecutor submitted I should not make any “significant reduction” for the fact that you pleaded guilty to the family violence offences you committed whilst in the AMC because on the “established facts”, the prosecution case against you, with respect to each of these offences, was “overwhelmingly strong”: s 35(4) of the Sentencing Act.
58․Your lawyer submitted that though the cases against you in relation to these offences were strong, the Court was not in a position to find that they were “overwhelmingly strong”.
59․Because you pleaded guilty at a very early opportunity, no brief of evidence was prepared. Ms Nathans declined to be interviewed by the police, as have the detainees whose accounts you used.
60․A successful prosecution would depend on identifying you and Ms Nathans as the people speaking to one another on the voice recordings. Though this may not have been particularly challenging in some instances, that is not the test. I must be satisfied, in respect of each offence, that the evidence against you was such as to “render opposition useless” or find that “acquittal is realistically unlikely”: R v Newby [2022] ACTCA 20 at [31].
61․Ultimately, I am not satisfied on the “established facts” that any of the cases against you were “overwhelmingly strong”. I will reduce each sentence by 25 percent to take account of your pleas of guilty.
Remorse
62․I have read your letter to the Court. It is important that you wrote this letter, particularly because you have explained that you want to become a “stable and loving father” and address your drug and alcohol use and offending behaviour. In it you also make clear that you “feel shame” for what you did.
63․Aside from this letter, there is little evidence that you are remorseful for your offending or that you have an understanding of the harm you caused to Ms Nathans and the impact of your family violence offending. At times you have blamed Ms Nathans. You have blamed the court.
64․To address your offending behaviour, and become the father that your son deserves, will require you to face and take responsibility for the fact that you have engaged in significant and serious acts of family violence. You will need to understand the causes of your behaviour. You will need to reach out for help and work hard to challenge and change this behaviour. Unless you do, you will continue to harm those who love and depend on you. You will also continue to harm yourself.
65․Your letter makes clear that you understand this. You write, “I am ready to improve my outcomes in life in a positive way and own my actions and behaviours as not to reoffend in the future”.
Conditional liberty and breach of good behaviour orders
66․A significant aggravating feature of your offending is the fact that you were released from custody on 12 January 2024 on a suspended sentence of imprisonment for offences of contravening a family violence order (CAN 8968/2023) and escaping from arrest or custody (CAN 8969/2023). The total sentence imposed for those offences was 7 months imprisonment. That sentence was suspended after you had served 4 months and 1 day on conditions including that you be of good behaviour for a period of 15 months.
67․Your offending 13 days after your undertaking to be of good behaviour and then whilst in custody is a serious betrayal of the trust that was placed in you by the Court, and of the opportunity you were given to pursue your rehabilitation: DPP v Deighan (No 2) [2023] ACTSC 295 at [93]; R v Tran [1999] NSWCCA 109 at [15].
68․For this reason, I will impose the outstanding term of imprisonment upon you.
Criminal history
69․Despite your youth, your history of past offending is significant and serious. You are not to be punished again for your past offences. However, this history demonstrates that your offending is not an aberration.
70․Most concerningly, you have a history of family violence convictions, demonstrating that there is a pattern of behaviour that must be firmly addressed: see s 34B of the Sentencing Act. This includes ten convictions for contravening an FVO and one conviction for choke/suffocate/strangle.
Time in custody
71․You have been in custody since the time of your arrest on 6 February 2024. I will backdate your sentence to that day to take account of this time that you have already served.
Subjective circumstances
72․Mr Hogan, I acknowledge you as a proud Wiradjuri man.
73․Strengthening your connection to community and culture may well be central to your long-term healing and rehabilitation: see Vanessa Edwige and Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, June 2021).
74․You are now 22 years of age. You are the third youngest child in a family of 10 children. You grew up in circumstance in which, to use your words “domestic violence was all around you”. Your parents frequently argued and there was physical violence between them. Your mother frequently used cannabis and drank alcohol, though she is now abstinent.
75․Your older brothers were heavy users of drugs and alcohol. They also engaged in criminal offending. Some were violent towards their partners. They were your role models. You have demonstrated insight in understanding that, in turn, you were a “bad role model” for your two younger siblings when it came to drug and alcohol use.
76․As a child you did not feel that you were a priority or that you were loved. I can only imagine that you felt unsafe and unprotected for much of your formative years. This has had a profound impact on you.
77․You commenced significant daily use of alcohol at around 13. At about this time you started smoking cannabis. You got involved with what you describe as “the wrong crowd”, stopped attending school, and spent most of your days “smoking and drinking” and committing offences.
78․Sadly, [redacted] when you were around 16 years old. From this point your drinking increased. You have explained that for a time you spent most of your days drinking with an older brother as a response to this grief and loss.
79․[redacted]
80․You have been diagnosed with complex trauma and generalised anxiety disorder. Canberra Health Service records also indicate that you have a “history of emotional dysregulation, maladaptive coping strategies and impulsivity”. These records also establish that [redacted]
81․From shortly after your release from custody on 12 January 2024 up until the time of your arrest in February 2024, you were consuming approximately two litres of spirits a day and experiencing frequent blackouts. You were using cannabis daily and methamphetamine every second day. In addition, you were regularly using nitrous oxide.
82․You have limited recollection of the offences you committed on 25 January 2024. At the time you were using methamphetamine, cannabis, alcohol and nitrous oxide. You have been assessed as likely to have been suffering “severe substance use disorder at the time of [your] offending”.
83․The High Court in the case of Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44] (Bugmy) has made clear that sentencing courts must give “full weight” to the impact of adverse childhood experience. This is to recognise that there are lines of force that shaped your life as a child that continue to impact you today, explaining your descent into addiction and a cycle of offending. In your case, each offence involves “emotional dysregulation, maladaptive coping strategies and impulsivity” born of that childhood. This reduces your “moral culpability” and the weight to be given to “punishment, denunciation and general deterrence”: see also R v Hagen [2022] ACTSC 362 at [40].
84․Further, your age and maturity at the time that you commenced drug and alcohol use, and the circumstances in which this commenced, with that behaviour being modelled for you, means that you did not have the capacity to consider the consequences of your actions in the same way as an adult: R v Henry [1999] NSWCCA 111; 46 NSWR 346 at [273] (Wood CJ), at [335]-[355] (Simpson J).
85․Your adverse childhood experience provides an explanation for your offending and for the ongoing challenges you have regulating your behaviour. However, you must take responsibility for what you have done and for changing your behaviour. Unfortunately, some of your behaviours in the AMC since 6 February 2024 do not reflect a commitment to change. From what I have read, there have been a number of occasions where you have failed to show respect to correctional services staff, including times when you have made threats to them. This behaviour must change.
86․On a more positive note, I have also read that you have been seeing a counsellor at the AMC and that you are working on reducing the impact of your negative thinking and controlling your behaviours. This is courageous work. I hope that you will continue with it.
87․Mr Hogan, your son is now around 7 months old. He is your motivation. For him to grow into being a strong, proud Wiradjuri man, he will need you to be in this world as a dependable, loving father and role model. For this to happen, you will need to reach out for help and find a way to heal your trauma, change your behaviour and grow into your own strength.
88․I know this is important to you because I have read about your goals. As you express them, your goals are to “get dry and be alcohol free”, “to keep crime free”, “to be happy without substances”, “to be ready to be a dad and not be impacted by drugs”, “to get [yourself] in rehab and engage in programs and not relapse” and stay “focused and healthy”.
89․You are young and these goals are well within your reach. I hope that you can maintain a commitment to them.
Comparative Sentences
90․I was directed to a number of cases in which offenders were sentenced for offences of making threats to kill or choke/suffocate/strangle: DPP v Jewell [2023] ACTSC 384; R v Loulanting [2015] ACTSC 172; R v Hoang [2020] ACTSC 262; Degioannis v Boxx [2017] ACTSC 7; R v Day (No 2) [2022] ACTSC 352; R v Williams [2016] ACTSC 389; DPP v Moala (No 3) [2023] ACTSC 306; DPP v Dunn [2022] ACTSC 355. These cases have been of assistance to me. They have enabled me to consider current sentencing practice and compare the circumstances of your offending, and your personal circumstances, with those of other offenders who committed the same or a similar offence.
91․Comparable sentences illustrate, but do not define, the possible range of sentences available: R v Pham [2015] HCA 39; 256 CLR 550 at 560 [29]. Sentencing practice does not cap the upper nor lower ranges of a possible sentence: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at 445-6 [51]-[53].
Sentencing purposes and consideration
92․No sentence other than imprisonment is appropriate having regard to the seriousness of your offending: s 10 of the Sentencing Act.
93․In sentencing you today, I am required to consider the purposes of sentencing set out in s 7 of the Sentencing Act.
94․You must be adequately punished in a way that is just and appropriate. This requires consideration of the nature of your offending, the harm you caused, and your moral culpability, which is reduced by reason of your history of childhood disadvantage.
95․Your sentence must deter you and others from offending, though your disadvantaged background significantly moderates the extent to which you can be considered an appropriate vehicle for general deterrence. In plain speech, that means your experience as a child reduces the extent to which an example should be made of you to deter others from committing offences.
96․The sentence must recognise the harm you have caused to Ms Nathans. Your conduct must be strongly denounced. This is not to denounce you as a person. You are responsible for your offences, but they do not define you.
97․The sentence must be designed to protect the community as well as to promote your rehabilitation. These purposes can conflict. However, where rehabilitation can be achieved this will be the most durable guarantee of community protection: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 537 [32] (French CJ).
98․In your case, the challenges you have with emotion regulation and your history of impulsive family violence increase the risk of reoffending and increase the importance of ensuring that the sentence imposed upon you protects those with whom you have an intimate relationship: Bugmy at 595 [44].
99․As is made clear in the report of Dr Goodwin that was provided to the Court, men who kill their partners frequently have a history of having strangled them or made a threat to kill them. This is what you have done. This risk must be addressed.
100․Though your history of relapse and reoffending is reason to be concerned about your prospects for rehabilitation, there is reason to hope. You have an opportunity to realise that hope, to believe in yourself, and believe in your capacity to be the loving and dependable father your son needs you to be.
101․The fact that you are still a young man is another important reason why rehabilitation is an important sentencing consideration: KT v R [2008] NSWCCA 51; 182 A Crim R 571 at 577- 8 [22].
Drug and alcohol treatment order
102․Mr Hogan, it is important for me to explain why I have not imposed the Treatment Order you sought to address your drug dependence.
103․You were found suitable for a Treatment Order by the authors of the Canberra Health Services Drug and Alcohol Sentencing List Suitability Assessment Report. Based upon that report, I am satisfied that you have a severe substance use disorder. I also consider that addressing your substance use dependency will be critical to your rehabilitation and healing.
104․You were found unsuitable for a Treatment Order by the author of the ACT Corrective Services Drug and Alcohol Treatment Assessment because of your criminal record and your history of failing to comply with community-based orders: s 46K of the Sentencing Act. Your history of repeatedly and persistently failing to comply with FVOs is of particular concern.
105․Ultimately, I am not satisfied that a treatment order is suitable for you or appropriate in your circumstance: ss 12A(2)(b) and s 80S of the Sentencing Act. Compliance with the obligations imposed under a Treatment Order is very challenging. It requires deep commitment and strong determination. I am not satisfied that you are ready to meet this challenge. I might have been persuaded that you were ready if you had undertaken rehabilitation programs whilst in custody or otherwise demonstrated a change in behaviour.
106․There is another reason why I have not made a Treatment Order. Before making such an order, I must be satisfied on the balance of probabilities that your dependency on alcohol or a controlled drug substantially contributed to the commission of the offences to which the Treatment Order will apply: s 12A(2)(a)(ii) of the Sentencing Act.
107․I am satisfied that this is the case in relation to your offending on 25 January 2024. I am not satisfied that your dependency substantially contributed to your repeated offending in the AMC. I accept that alcohol and controlled drugs are available and frequently used by detainees. I also accept that you have consumed “home brew” from time to time whilst on remand. This is not evidence that you were affected by alcohol or a controlled drug on the occasions when you contacted Ms Nathans or attempted to contact her. In short, your substance dependency does not explain this offending.
Totality and legislation concerning offences committed in lawful custody
108․I am required to fix an appropriate sentence for each offence, consider the extent to which those sentences should be accumulated or made concurrent, and then step back and ensure that the total sentence imposed on you reflects the overall criminality of your offending, such that the aggregate sentence is just and appropriate for the offences: O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 at 249-250. The overall sentence must also “hold out a proper measure of hope for, and encouragement to, rehabilitation and reform”: Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 341.
109․I have already discussed the high degree of overlap between the offences you committed on 25 January 2024. Because of this, there must be a high degree of overlap in the sentences imposed for these offences.
110․Because a significant number of your offences were committed whilst you were in lawful custody at the AMC, the sentences I impose for these offences must be served consecutively, unless I give a direction to the contrary: s 72 of the Sentencing Act.
111․In your case, I have decided that serving these sentences one on-top of the other would be crushing for your prospects of rehabilitation and extend beyond an overall assessment of the criminality of your offending. I will direct that the sentences be served with the degree of concurrency and accumulation set out in the orders.
Nonparole period
112․A nonparole period must be fixed having regard to a number of considerations: see Taylor v The Queen [2014] ACTCA 9 at 19. These include the purposes of sentencing, the objective seriousness of your offending, and your personal circumstances. A nonparole period is the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 629.
113․Your prospects of rehabilitation are important, particularly given your age. It is also important to recognise that because of your age, you are likely to “suffer the effects of incarceration in an adult prison”: R v Foster-Jones (No 2) [2019] ACTSC 286 at [29]. A lengthy period of incarceration without hope of parole has the potential to harm your prospects of rehabilitation, and the long-term safety of the community.
114․I consider that you have reasonable prospects of rehabilitation. I consider that these prospects will be significantly increased if you successfully complete the Solaris Therapeutic Community Rehabilitation Program (Solaris TC) whilst in the AMC. I understand that you are reluctant to enter this program. I urge you to reconsider. Participation in the Solaris TC will enable you to develop a comprehensive and structured parole release plan that can be considered by the Sentence Administration Board. It will help you to achieve your goals.
115․For this reason, I will set a nonparole period that is just under 40 percent of your total sentence.
116․I have given consideration to making a recommendation that a residential drug rehabilitation program condition be made as a condition of your parole. I have decided against this. You will require support in a broad range of areas.
117․It will be critical for you to be supported to address your family violence behaviour and the underlying causes of this behaviour, including your childhood trauma and psychological vulnerability. It is also important that you be provided with the opportunity to engage in culturally appropriate programs with the capacity to strengthen your connection to community, culture and Country. This may include programs offered by the Ngunnawal Bush Healing Farm, Yeddung Mura, Winnungah or the Worldview Foundation. I urge you to consider all of these possibilities.
118․Ultimately, it will be a matter for the sentence administration board to determine the rehabilitation and support needs to be targeted upon and during parole.
Orders
119․For those reasons I will make the following orders:
(1)Maxwell Monaro Hogan be convicted of aggravated intentional threat to kill another person (Family Violence) (CAN 1475/2024) and he be sentenced to 24 months imprisonment, reduced from 32 months imprisonment on account of his plea of guilty, commencing on 6 February 2024 and ending on 5 February 2026.
(2)Maxwell Monaro Hogan be convicted of aggravated intentionally and unlawfully choke, suffocate or strangle another person (Family Violence) (CAN 1470/2024) and he be sentenced to 18 months imprisonment, reduced from 24 months imprisonment on account of his plea of guilty, commencing on 6 December 2024 and ending on 5 June 2026.
(3)Maxwell Monaro Hogan be convicted of contravention of family violence order (CAN 1473/2024) and he be sentenced to 12 months imprisonment, reduced from 16 months imprisonment on account of his plea of guilty, commencing 6 February 2024 and ending on 5 February 2025.
(4)Maxwell Monaro Hogan be convicted of contravention of family violence order (CAN 1825/2024) and he be sentenced to 6 months imprisonment, reduced from 8 months imprisonment on account of his plea of guilty, commencing 6 February 2026 and ending on 5 August 2026.
(5)Maxwell Monaro Hogan be convicted of contravention of family violence order (CAN 3681/2024) and he be sentenced to 6 months imprisonment, reduced from 8 months imprisonment on account of his plea of guilty, commencing on 6 April 2026 and ending on 5 October 2026.
(6)Maxwell Monaro Hogan be convicted of attempt to contravene family violence order (CAN 2349/2024) and he be sentenced to 3 months imprisonment, reduced from 4 months imprisonment on account of his plea of guilty, commencing on 6 February 2026 and ending on 5 May 2026.
(7)Maxwell Monaro Hogan be convicted of attempt to contravene family violence order (CAN 3680/2024) and he be sentenced to 3 months imprisonment, reduced from 4 months imprisonment on account of his plea of guilty, commencing on 6 September 2026 and ending on 5 December 2026.
(8)Maxwell Monaro Hogan be convicted of impersonating a police officer (CAN 2512/2024) and he be sentenced to the rising of the court.
(9)In the proceeding of CAN 8969/2023, the breach of the good behaviour order is proven and the good behaviour order is cancelled, with the outstanding suspended sentence of 2 months 30 days imprisonment imposed to commence on 7 November 2026 and end on 5 February 2027.
(10)In the proceeding of CAN 8968/2023, the breach of the good behaviour order is proven and the good behaviour order is cancelled, with the outstanding suspended sentence of 1 month 30 days imprisonment imposed to commence on 7 December 2026 and end on 5 February 2027.
(11)The total sentence imposed is 3 years imprisonment, commencing on 6 February 2024 and ending on 5 February 2027.
(12)A nonparole period of 14 months be imposed to commence on 6 February 2024 and end on 5 April 2025.
Final words
120․Mr Hogan, I am sure that you will be disappointed that I did not make a Treatment Order for you. I hope that you will find a way to turn this disappointment into a commitment to your rehabilitation and healing.
121․There is a mountain to climb. But each step you take up the mountain will give you a better view. If there are steps back along the way, then you will still remember that view. With courage you will continue to climb.
122․You have the strength to do this. The view from the top will be worth it. I hope that you can imagine being there with your son and then work hard to make what you imagine come true. I wish you luck.
| I certify that the preceding one-hundred-and-twenty-two [122] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Hopkins Associate: Date: |
25
4