Director of Public Prosecutions v Hogan

[2016] VCC 81

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-13-01655

DIRECTOR OF PUBLIC PROSECUTIONS

v

LIAM HOGAN

---

JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	5 February 2016
DATE OF SENTENCE:	5 February 2016
CASE MAY BE CITED AS:	DPP v Hogan
MEDIUM NEUTRAL CITATION:	[2016] VCC 81

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:             Sentence - sexual penetration of a child under 16 years - contravention of Community Corrections Order

Legislation Cited:     Sentencing Act 1991 (Vic)

Sentence:CCO cancelled and resentenced on the original charge to 18 months imprisonment with a non-parole period of 9 months

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S.J. Holmes	Solicitor for the Office of Public Prosecutions
For the Offender	Mr D. Care	James Dowsley and Associates

HIS HONOUR:

1Mr Hogan, if you would stand please?  What I am about to do does not thrill me because I am going to put you in gaol.  So it is something I have tried to avoid, but you have consistently failed to comply with the terms of the Community Corrections Order, and as I said originally, this was a very serious offence.

2You came back before me on 2 February 2015 and breached the conditions, and I gave you a chance and unfortunately you have again done almost exactly the same. So as I said, on the basis of the admitted breach as set out in Exhibit 1, you will be convicted, and for both the breach and in regard to the original offence, of which there was only one offence, I will sentence you to a period of imprisonment of 18 months, which is an order under s.83AS of the Sentencing Act.

3That is I cancel the order and deal with the offender as I could have done. Pursuant to the provisions of s.11 of the Sentencing Act where a Court sentences an offender to be imprisoned in respect of an offence for a term of less than two years, but not less than one year, it may fix a period during which the offender is not eligible for parole.

4It must be at least six months, so I am going to set the period as being eligible for parole as being nine months.  So the end result of that, Mr Hogan, is that you will be taken today to serve a period of imprisonment of 18 months, of which you will need to serve nine months before you are eligible for parole.

5As part of your sentence we will attach all of the certifications we have got.  Madam Associate, what have you got there by way of the exhibits?

6ASSOCIATE:  The exhibits from the first breach are on file, which includes the Carla Lechner report and then the exhibit from (indistinct).

7HIS HONOUR:  I think we will put all the psychological reports we have and it probably will not hurt to even put the reports of breach on too.

8MR CARE:  Yes, Your Honour, and there is also some pre-sentence detention that wasn't declared.

9HIS HONOUR:  Yes, it was ten days, was it not?

10MS HOLMES:  Six.

11HIS HONOUR:  Six?

12MS HOLMES:  Yes.

13HIS HONOUR: And I will order pursuant to s.18 of the Sentencing Act that the six days that you served originally, which was not taken into account, will be deemed as service of part of your nine months.

14MS HOLMES:  Your Honour, can I just raise one matter?

15HIS HONOUR:  Yes.

16MS HOLMES:  The maximum penalty for a breach under s.83 is three months.

17HIS HONOUR:  Three months.

18MS HOLMES:  Yes.

19HIS HONOUR:  Yes.  I was just going to make that as part of an aggregate penalty.  Maybe I will do the 18 months and nine months and give him a month on the breach and not make an order as to cumulation.

20MS HOLMES:  Yes, thank you, Your Honour.

21HIS HONOUR: So on the breach it will be a month, and on the original offence, resentenced to 18 months imprisonment with a minimum of nine months. I think in the circumstances s.6AAA of the Sentencing Act does not need to be worried about.  I think it is quite obvious what I would have done or what I did do originally when he pleaded guilty.

22MS HOLMES:  Yes.

23HIS HONOUR:  And what I would have done otherwise.  Unfortunately I have now had to give him gaol.  Is that all I am required to do?

24MS HOLMES:  Yes, Your Honour.

25HIS HONOUR:  Thank you both.  Mr Hogan, good luck and if you get into any issues make sure you seek assistance in there, because we tried to keep you out of there and I am certain it is not going to suit you too well, but there is not much we can do about it, so make sure you seek some assistance.

26We will make sure all these reports go with you.  Officer, if you could just make some indications?  There are some tender psychological issues as far as Mr Hogan is concerned and we want the reports to go with him when he is assessed.  Thank you, Madam Associate.  Yes, you can take the prisoner.

‑ ‑ ‑