Director of Public Prosecutions v Hogan

[2015] VCC 86

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-01655

DIRECTOR OF PUBLIC PROSECUTIONS

v

LIAM HOGAN

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	18 November 2014, and 2 February 2015
DATE OF SENTENCE:	2 February 2015
CASE MAY BE CITED AS:	DPP v Hogan
MEDIUM NEUTRAL CITATION:	[2015] VCC 86

REASONS FOR SENTENCE
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Subject:   CRIMINAL LAW

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

Legislation Cited:     Sentencing Act 1991 (Vic)
Cases Cited:

Sentence:Convicted and sentenced to a Community Corrections Order for a period of 30 months

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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr D. Care	James Dowsley and Associates
For the Director of Public Prosecutions	Ms N. Burnett	Solicitors for the Office of Public Prosecutions
For Corrections Victoria	Ms K. Summers

HIS HONOUR:

1These matters are always difficult for a sentencing judge; if the original sentence was not difficult enough - which was a very serious breach of s.45(1) of the Crimes Act involving the sexual abuse of a young person of only 12 years of age, for which a considerable maximum period of imprisonment was imposed as a sentence by the legislation.  That is, that offence bought with it a maximum penalty of ten years gaol.

2Given that seriousness one would understand - and I hope it is clearly set out in my sentencing remarks - why in the particular circumstances surrounding Mr Hogan, given his depression and his problems in handling life, generally, that I set out in that sentence of 18 December 2013 - that I gave him a second chance.

3The original breach proceedings came before me again on 18 December - I think it was, of last year, Madam Prosecutor, was it not?

4MS BURNETT:  Yes, that's right, Your Honour.

5HIS HONOUR:  Because there were matters to be dealt with - which are the offences referred to in Exhibit C - the matter was further adjourned to today.  Again, it was hoped that with the good grace of the Community Corrections department Mr Hogan could re-attend and hopefully not commit any further offences.

6Both of those hopes proved negative.  The usual consequence of that is that a sentence of immediate gaol must be imposed.

7Today - pursuant to s.83AD - Mr Hogan has pleaded guilty to the contravention for which the sentence otherwise prescribed - unless the Court takes any other step - is three months imprisonment.  But in addition s.83AS applies, which allows the Court a number of alternatives, but the most usual order made in circumstances such as this is to cancel the order and therefore deal with the offender, and that means the imposition of a significant gaol offence.

8I must say, I am reminded of a very experienced youth worked who used to come before this Court when I was somewhat younger in judicial years, and he always used to say to me that dealing with young people is a bit like climbing Mount Everest; you get your ups and you get many downs, and it is not realistic to accept that you are going to have all ups.  You are going to have downs.  The problem with you, Mr Hogan, is all I seem to be getting is downs despite the opportunities made for you.

9However, given the matters that have been referred to in my sentencing remarks and given the circumstances that continue of difficulty with the family - in particular the state of the child born last year - and again, taking into account the substantial matters raised in the report of Carla Lechner, which I referred to last time, and formally for this breach hearing I will have tendered as Exhibit D.

10#EXHIBIT D -   Report of Dr Carla Lechner dated 08/12/13.

11That is the report of Carla Lechner, clinical forensic psychologist, dated 8 December 2013, which essentially set out the psychological and psychiatric makeup of Mr Hogan, which essentially has not changed since that time.

12Given those circumstances it seems that every step should be taken to avoid placing Mr Hogan in gaol.  I do not think he is going to enjoy gaol if he goes to gaol; if he does not understand that already.

13The particular alternatives allow me to vary the order, or confirm the order originally made.  The order originally made was for a period, I think, of 30 months.  However, a substantial period of that time the failure of the matters set out has occurred because - albeit that he has had some form of treatment, which he has given evidence of today, it is important that that treatment be supervised and that the rehabilitation take place under the auspices of the Community Corrections department.

14What I would intend to do, Madam Prosecutor, is to extend that order for another 24 months.

15MS BURNETT:  Yes, Your Honour.

16HIS HONOUR:  Make all the provisions that were there applicable.  That is, he has got to attend within two working days, and the mandatory terms still apply.  The obligation not to commit any more offences applies.  He is required to comply with any obligation or requirement, he has to report and receive visits from the Secretary, and a report to Community Corrections, as I said.  The unpaid community work - well, he has not done any so that can be completely reimposed.  Supervision is imposed and treatment and rehabilitation - what I will set out, Ms Summers, is that those programs must be drug, alcohol and anti-depression and non-offending advice.

17In making such an order I should make it clear that I do not in any way disregard the very valuable reports - Exhibit A and B - that I have received from the Department, nor do I disregard what seems to me quite appropriate determinations that Mr Hogan should not be subject to a further order.

18We have, in our community, limited resources.  We have a lot of people in dire trouble, and if people are going to be silly enough not to take the opportunity that is offered then the consequences are clear, and I appreciate fully the views expressed.  However, it seems to me the consequences - not only for Mr Hogan but for the community - of putting Mr Hogan in gaol might be catastrophic.  In my view the community is well served by giving Mr Hogan one further chance.

19Mr Hogan, I want you to understand if you muck up again there will be no further chances.  Do you understand that?

20OFFENDER:  Yes, Your Honour.

21HIS HONOUR:  That means you go to Community Corrections when you're supposed to go unless you've got a proper reason - and you will be subject to their supervision - but most importantly you do, hopefully now, the rehabilitation programs that are arranged for you, and equally, no committing any criminal offence, and that includes traffic offences.

22OFFENDER:  Yes, Your Honour.

23HIS HONOUR:  Have you got a licence yet?

24OFFENDER:  No, Your Honour.

25HIS HONOUR:  How long were you knocked off for?

26OFFENDER:  Four months.

27HIS HONOUR:  Right.  Well, it's pretty important for you not to drive again during that time, albeit that you need a job, because if you do drive it's automatic gaol.

28OFFENDER:  Yes, Your Honour.

29HIS HONOUR:  I would've thought, as you said, you've got enough problems in your life.  You need to get some assistance in getting on with your partner.  You've got two children to look after who'll hopefully get back into your care one day, the last thing you want in your life is to go to gaol for four years.  So you understand the consequences?

30OFFENDER:  Yes, Your Honour.

31HIS HONOUR:  You mess up again and come back.  You've had two significant chances now; this is probably the third you're getting today.  In fact, it is.  You had the sentence, you had the last breach, I let you go back and you didn't do that again.  Third chance and last, all right?  Now, this is being recorded, next time you come you know what's going to happen.

32Madam Prosecutor and Ms Summers, what do I need to make sure of those matters?  Do I need to pronounce anything more than I've said?

33MS BURNETT:  Your Honour, just in respect of the breach.

34HIS HONOUR:  Yes?

35MS BURNETT:  Did Your Honour intend to ‑ ‑ ‑ 

36HIS HONOUR:  Yes, sorry.  I will convict on the breach.  And what do I do?  There's a provision in the Act rather than imposing punishment I just make it - impose a community corrections order to be served concurrently and the same terms and conditions?

37MS BURNETT:  Yes.  Thank you, Your Honour.

38HIS HONOUR:  Yes.  Ms Summers, do I need anything more direct than I've said for psychiatric, drug, alcohol advice and non-offending advice?

39MS SUMMERS:  Your Honour may wish to vary the order to make his intentions more clear?

40HIS HONOUR:  Yes.

41MS SUMMERS:  In that you can have specific conditions for mental health, psychological and offending behaviour programs.  That is ‑ ‑ ‑ 

42HIS HONOUR:  Yes.  Well, last time it was a bit general, I just said "subject to what Corrections said," but now I'm going to say that he undergo those programs.  Is that what you want?

43MS SUMMERS:  Yes, Your Honour, that would be very useful.  Even if the comments can be written onto the order?

44HIS HONOUR:  Yes.

45MS SUMMERS:  Underneath the current condition as it stands.

46HIS HONOUR:  Right.

47MS SUMMERS:  Just so that the supervising office is very well aware of His Honour's intentions.

48HIS HONOUR:  Would it assist if we attach to the order a copy of the report of the psychologist, Lechner?

49MS SUMMERS:  I believe we should have that on file already, Your Honour.

50HIS HONOUR:  Yes, we do.  All right, we'll make it as specific as we can.

51MS SUMMERS:  Thank you, Your Honour.

52HIS HONOUR:  Mr Care, you'll point out to Mr Hogan that he's been very lucky today, all right?

53MR CARE:  Unequivocally, Your Honour.  Yes.

54HIS HONOUR:  There'll be no more luck.  Take a seat, Mr Hogan.  You'll have to sign this document.  I think I simply vary the order, don't I?

55MS BURNETT:  Yes, I think that's ‑ ‑ ‑ 

56HIS HONOUR:  Vary the order to now make the order for 12 months from today's date?

57MS BURNETT:  That's right, Your Honour.

58HIS HONOUR:  And then impose all of the conditions that were there, and then specific conditions in regard to treatment for mental health issues, for drug issues, alcohol issues, and for re-offending issues?

59MS BURNETT:  Yes, that's appropriate.  Thank you, Your Honour.

60HIS HONOUR:  And then 200 hours over 12 months, is that - what's that work out at?  That's four hours a week, that shouldn't be too onerous.  Even if he gets a job that's not too onerous, he'll just do that on the weekends.  There has to be some form of imposition of a penalty given the serious nature of the original crime.

61MR CARE:  Yes, Your Honour.

62HIS HONOUR:  All right, we'll prepare that now and we'll have each counsel look at it before we ask your client, Mr Care, to sign the document.

63MR CARE:  Yes, Your Honour.

64HIS HONOUR:  And could we order a transcript of those reasons so that if Mr Hogan comes back before me I've got a copy of the warning that I gave him?  (To tipstaff.)

65I might stand down, Mr Care, while you have a good talk to your client before I come back and ask him to sign the undertaking, because if he's not serious about it he may as well go to gaol now.

66MR CARE:  Yes, Your Honour.

67HIS HONOUR:  Stop mucking around with us and messing us around - and the Department.  It's only if he's serious that he should sign this document.

68MR CARE:  Yes, Your Honour.

69HIS HONOUR:  Because if he messes up again he knows the consequences.

70TIPSTAFF:  Ms Summers?

71HIS HONOUR:  Keep Ms Summers here until we finalise - is that all right?  Can you stay and help us?

72MS SUMMERS:  Yes, Your Honour.

73HIS HONOUR:  Thank you.

74(Short adjournment.)

75I'm sorry, we've had some - must be the new legal year - problems with printing.  Mr Care, if you'd have your client sign the document please?  I take it in the mean time you've fully explained all the circumstances that I set out?

76MR CARE:  I have, Your Honour.

77HIS HONOUR:  Mr Care, I don't know there's always community issues and health issues for children, however the issue of being banned, as such with this matter, from seeing your own kids concerns me a bit.  No doubt you'll have a look at that?

78MR CARE:  Yes, Your Honour.  I don't think ‑ ‑ ‑ 

79HIS HONOUR:  And if there are other issues then that's another matter.

80MR CARE:  Yes, Your Honour.

81HIS HONOUR:  I'll make the orders that I pronounced.  Mr Hogan, I'm not going to go into it again.  You've had this explained to you, all right?  Don't mess up again.

82OFFENDER:  Yes, Your Honour.

83HIS HONOUR:  You've got two kids and a partner dependent on you.  All right?

84OFFENDER:  Yep.

85HIS HONOUR:  If you are going to make it.  I make those orders in the terms set out.  Can I thank very much Ms Summers for her assistance, and the Corrections department for both reports.  If you convey my thanks, Ms Summers?

86MS SUMMERS:  I will do.

87HIS HONOUR:  Both were very much taken into account.  Let's hope we can be of much better assistance in the next 12 months, we hope.  Twenty-four months, I mean.  And also, Ms Burnett, thank you for your professional assistance as well, much appreciated, and Mr Care.

88MS BURNETT:  Thank you, Your Honour.

89MR CARE:  Thank you, Your Honour.

90HIS HONOUR:  Yes, Madam Associate I'll - I think I've signed it, have I?  Yes.

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