Hogan v R

Case [2008] NSWCCA 150

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
HOGAN v Regina [2008] NSWCCA 150

FILE NUMBER(S):
2006/5089

HEARING DATE(S):
13 May 2008

JUDGMENT DATE:
2 July 2008

PARTIES:
John Barry Hogan (Appellant)
Regina (Respondent)

JUDGMENT OF:
Beazley JA Johnson J McCallum J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
05/31/0370

LOWER COURT JUDICIAL OFFICER:
Sweeney DCJ

LOWER COURT DATE OF DECISION:
23 August 2006

COUNSEL:
H Dhanji (Appellant)
N Noman (Respondent)

SOLICITORS:
Legal Aid Commission (Appellant)
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW – appeal against conviction of maliciously inflicting actual bodily harm with intent to have sexual intercourse – whether specification of a particular injury required – whether trial judge distinguished the need to find actual bodily harm inflicted maliciously as well as intent to have sexual intercourse
CRIMINAL LAW – appeal on directions to jury –  requirement that actual bodily harm be inflicted maliciously – adequate directions given regarding the need to find malice – full definition of malice given to jury – whether error
CRIMINAL LAW – appeal against sentence – whether trial judge erred on principles stated in De Simoni
CRIMINAL LAW – appeal against sentence – special circumstances where accumulative effect of sentencing produces a non-parole period in excess of statutory ratio

LEGISLATION CITED:
Crimes Act 1900; ss 5, 61K, 66C
Crimes (Sentencing Procedure) Act 1999, s 44(2)
Criminal Appeal Act 1912, s 6
Criminal Appeal Rules, r 4

CATEGORY:
Principal judgment

CASES CITED:
Barca v R [1975] HCA 42; (1975) 133 CLR 82
Dunn v R [2007] NSWCCA 312
Kippist v Parnell (1988) 36 A Crim R 18
Knight v R [1992] HCA 56; (1992) 175 CLR 495
Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367
Peacock v The King [1911] HCA 56; (1911) 13 CLR 619
Pengilley v R [2006] NSWCCA 163
Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234
R v Bakewell (Court of Criminal Appeal, Gleeson CJ, McInerney and Studdert JJ, 27 June 1996, unreported)
R v Coleman (1990) 19 NSWLR 467
R v Cunningham (1957) 2 QB 396
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Fajka [2004] NSWCCA 166
R v Grant [2002] NSWCCA 243; (2002) 55 NSWLR 80
R v Micalizzi [2004] NSWCCA 406
R v Safwan (1986) 8 NSWLR 97
R v Smith (1982) 1 NSWLR 1
R v Stokes and Difford (1990) 51 A Crim R 25
R v Stones (1956) 56 SR (NSW) 25
Storey v R (1985) 19 A Crim R 275
Thomas v The Queen (1960) 102 CLR 584

TEXTS CITED:
C S Kenny, Outlines of Criminal Law, 19th ed (1966) Cambridge University Press, at 211

DECISION:
1. Appeal against conviction in respect of count 4, dismissed;
2. Application for leave to appeal against sentence granted;
3. Appeal against sentence in respect of count 4, allowed;
4. Set aside the trial judge’s sentence in respect of count 4 and in lieu therefore, impose…

Continue reading Hogan v R

Sign in free to access the full text

Details
AGLC
Hogan v R [2008] NSWCCA 150
Case
[2008] NSWCCA 150
Decision Date

CaseChat Overview and Summary

In the matter of Hogan v R, the appellant brought an appeal against his conviction under s 61K(a) of the Criminal Code Act 1995 (Cth) for maliciously inflicting actual bodily harm with intent to have sexual intercourse. The appellant also sought leave to appeal against his sentence, arguing that the trial judge had erred in calculating the non-parole period. The conviction arose from an incident where the appellant, after drinking alcohol with the complainant, TD, and her friend, KS, engaged in a sexual act with TD without her consent, and subsequently assaulted her when she resisted his advances.

The legal issues before the court were whether the specification of a particular injury was required in the charge, whether the trial judge properly instructed the jury on the elements of the offence, and whether the trial judge erred in calculating the non-parole period. The court found that the charge did not need to specify a particular injury and that the trial judge had adequately instructed the jury on the need to find actual bodily harm inflicted maliciously and the intent to have sexual intercourse. The court also found that the trial judge had not erred in calculating the non-parole period, despite the cumulative effect of sentencing producing a period in excess of the statutory ratio.

The court upheld the conviction, finding that the evidence was sufficient to establish the elements of the offence. The court also found that the trial judge had given the jury a full definition of malice and that the jury had been adequately directed on the need to find malice. The court rejected the appellant's argument that the trial judge had erred in calculating the non-parole period, finding that the trial judge had followed the principles set out in De Simoni v The Queen. The appeal against conviction and sentence was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appellant also seeks leave to appeal against sentence. Factual background Although the appeal is only brought in respect of the s 61K(a) offence, it is useful to recount the facts in respect of both offences of which the appellant was convicted, as some of the evidence in respect of the s 66C offence explains some of the evidence in respect of the s 61K(a) offence. The facts in respect of the s 66C offence are also relevant should the Court grant leave to appeal against sentence.Evidence in respect of the s 66C offence In January 2001, during the Country Music Festival week in Tamworth, TD and two friends, KS and CG, went to a flat that was rented by JG. TD gave evidence that when she was alone with the appellant in a bedroom, he closed the door, took off TD’s underpants and had sexual intercourse with her. She told him to stop. Another person came into the room and then walked out. Immediately afterwards, TD went outside and told her friend, KS, what had happened. KS went back into the flat and later told TD that she, KS, had “abused” the appellant (presumably for what he had done to TD). TD said that she did not remember if she had drunk any alcohol that day and had a poor memory of the day. During the course of cross-examination, TD identified KS as being the person who had come into the room. In her evidence in chief, she had identified this person as JG. KS recalled being at the flat with TD in January 2001 and thought that it was during the Country Music Festival week. She said that she and TD had had a few drinks and that TD was “very very intoxicated, she was slurring”. KS remembered that the appellant and JG were at the flat and she also thought that CG was there. She recalled that TD went into a bedroom and that at one stage, she, KS, went in the bedroom to find her. She saw the appellant on top of TD with his pants down, on a single bed. KS recalled screaming at the appellant and may have pulled him off TD. KS agreed that she was also intoxicated at this time. JG gave evidence of having leased the flat and that whilst he lived there he met somebody called “Hoges”. He said that people used to come around to the flat all the time and that he remembered TD and KS doing so. He said that he didn’t know if they drank alcohol there and agreed that both the girls looked “about 12 or so … like kids”. In his statement to police, JG said the flat was like “a drop in centre where people would drink alcohol”.Evidence in respect of the s 61K(a) offence TD did not see the appellant after this incident until 3 April 2002, when she was living with KS in a caravan. On that date, a friend of KS’s, MR, visited the caravan. Around about lunchtime, JG and the appellant also arrived at the caravan. TD did not initially recognise the appellant because his appearance had changed from when she had seen him at the Tamworth flat, over a year previously. MR, JG and the appellant stayed at the caravan for a number of hours, playing cards and drinking alcohol. At some stage KS and MR left. JG also left and the appellant and TD were alone in the caravan.

Evidence

Evidence Before The Court

JG gave evidence of having leased the flat and that whilst he lived there he met somebody called “Hoges”. He said that people used to come around to the flat all the time and that he remembered TD and KS doing so. He said that he didn’t know if they drank alcohol there and agreed that both the girls looked “about 12 or so … like kids”. In his statement to police, JG said the flat was like “a drop in centre where people would drink alcohol”.Evidence in respect of the s 61K(a) offence TD did not see the appellant after this incident until 3 April 2002, when she was living with KS in a caravan. On that date, a friend of KS’s, MR, visited the caravan. Around about lunchtime, JG and the appellant also arrived at the caravan. TD did not initially recognise the appellant because his appearance had changed from when she had seen him at the Tamworth flat, over a year previously. MR, JG and the appellant stayed at the caravan for a number of hours, playing cards and drinking alcohol. At some stage KS and MR left. JG also left and the appellant and TD were alone in the caravan. The appellant tried to kiss TD and she pushed him away. The appellant then pulled his pants down and masturbated. The appellant tried to take TD’s clothes off and “tried to have sex with [her]”. The appellant said to TD that he was “going to fuck [her] right or wrong”. TD could not remember at what stage the appellant said this to her. TD said that whilst the appellant was trying to have sex with her, she scratched him on the arm. TD did not recall how the incident stopped, but she did remember that the appellant rang a taxi and left. TD locked the door of the caravan. She said that she was scared and had scratches on her back, a split lip and marks around her neck. She remembered that it was about 2 or 3 am when the taxi arrived. KS returned at about 7 am the next morning. TD went home to her mother’s house that evening and her mother made her ring the police. During the course of cross-examination in respect of this incident, it was suggested to TD that the scratches on her back had occurred because she had slipped and fallen on the steps of the caravan. TD denied this. The cross-examination was as follows:“Q:Did you at some stage when you were in the van that night – I’m sorry, when you were at the van in the annexe did you slip and fall on the steps of the van?A: Me?Q: Yes?A: No, [the appellant] did.Q:I’m suggesting you missed the step and fell on your left-hand side in the van. Do you agree or disagree with that?A: I disagree.Q:And [the appellant] said to you, ‘Are you okay?’ and you said you were. Do you agree or disagree with that?A: I disagree.Q:You say it was [the appellant] who fell on the steps of the van, is it?A: Yes.Q: Did you see how that happened?A:On the one that didn’t have the steps coming down, I had a little footstool thing there and he went on it and it collapsed under him and he fell and injured himself.Q: So that was the back door, was it?A:They both led into the annexe, but there was only one door to get in and out of the caravan that was in the annexe. It was like a sliding door.Q:Is it possible that you did slip and fall near or on the step of the van and you just don’t remember it now?A: No, I did not slip and – trip or fall.Q:You specifically remember you didn’t – that didn’t happen, do you?A: Yes.Q:See, I’m suggesting to you that [the appellant] didn’t cause the scratches to your back that night, did he?A: He did.Q: He didn’t cause any injury to you that night?A: He did.” (Emphasis added)

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.