Hogan v Sanderson
[2020] NTSC 27
•28 May 2020
CITATION:Hogan v Sanderson [2020] NTSC 27
PARTIES:HOGAN, Gavin
v
SANDERSON, Melissa Deborah
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:LCA 4 of 2020 (21905144)
DELIVERED: 28 May 2020
HEARING DATES: 27 May 2020
JUDGMENT OF: Hiley J
CATCHWORDS:
CRIME – Appeals – Appeal against sentence – Whether and how the sentencing judge should take into account an appeal lodged by the offender in an unrelated matter where that appeal has not been heard and decided
Sentencing Act 1995 (NT)
Hogan v Rigby [2020] NTSC 25, referred to
REPRESENTATION:
Counsel:
Appellant:L Nguyen
Respondent: N Loudon
Solicitors:
Appellant:-
Respondent: Director of Public Prosecutions
Judgment category classification: C
Judgment ID Number: Hil2006
Number of pages: 6
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINHogan v Sanderson [2020] NTSC 27
No. LCA 4 of 2020 (21905144)
BETWEEN:
GAVIN HOGAN
Appellant
AND:
MELISSA DEBORAH SANDERSON
Respondent
CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered 28 May 2020)
On 23 September 2019 the appellant was convicted and sentenced in relation to two counts, the subject of file 21825347. He was sentenced to nine months’ imprisonment on count 1, which was an aggravated assault on Shaun Evans, and three months’ imprisonment on count 2, which was an aggravated assault on Annalita Riley. The two sentences were ordered to be served concurrently, and were to commence on 11 September 2019, the date when the appellant was arrested. The total sentence was to be suspended after he had served five months imprisonment. Consequently, he was due to be released from prison on 10 February 2020.
On 15 October 2019 the appellant appealed against his conviction on count 1 on file 21825347.[1]
On 29 January 2020 the appellant pleaded guilty to an aggravated assault on Dale Mulholland, the subject of file 21905144. The sentence imposed for that offending is the subject of this appeal (LCA 4/20).
During sentencing submissions, the appellant’s lawyer informed the judge that the appellant had filed a notice of appeal in relation to count 1 on file 21825347. She asked the judge to backdate the commencement of the appellant’s sentence on the current matter (file 21905144) to 11 September 2019, the same date as the commencement date of the sentences on file 21825347. That would have meant that any sentence imposed on file 21905144 would have been totally concurrent with the sentences already ordered on file 21825347, irrespective of the outcome of the appeal against the nine month sentence for count 1 on file 21825347.
The sentencing judge considered that total concurrence was not appropriate. He sentenced the appellant to three months’ imprisonment and structured the sentence in such a way that six weeks of that sentence would be served after he was to be released from prison on the suspended sentence on file 21825347. Accordingly, the appellant would not be released on the suspended sentence until 23 March 2020, that is six weeks after he would have been released but for his sentence on file 21905144.
After the judge pronounced the sentence counsel for the appellant queried “how that would work” if the appeal on file 21825347 was successful. His Honour asked counsel what he could do about that, and said: “I cannot construct it any other way, can I?” Counsel was not able to offer any suggestion except that the whole sentence be backdated to 11 September 2019.
The ground of appeal is that:
The learned judge erred in law in failing to take into account the practical consequences of the sentencing order made.
In her written submissions, counsel identified two consequences said to be the practical consequences referred to:
(a)If the appeal on file 21825347 was allowed the appellant would have served “dead time”;
(b)There was uncertainty as to the commencement of the operational period.
The submissions made in relation to the second point were that:
(a)the judge’s “failure to take into account the practical consequences of the sentencing structure, gave rise to lack of certainty as to when his sentence on file 21905144 would start and end, having regard to an unknown outcome on the appellant’s appeal against conviction on file 21825347”; and
(b)“a prisoner has a right to expectation of certainty as to the length of his incarceration, and the way the sentence was structured did not give effect to any such certainty.”
I reject those contentions. It was clear that his sentence on file 21905144 would end six weeks beyond 10 February 2020, namely on 23 March 2020, and would begin three months before that. He would be released from prison on 23 March 2020, with the remaining four months of his nine month sentence on file 21825347 suspended for an operational period of 12 months from the date of his release from prison.
As to the “dead time” contention, it is relevant to note that this is often a consequence of a successful appeal against a conviction.
As counsel for the respondent pointed out a sentence imposed by a court is the final sentence until an appellate court orders otherwise. It would have been artificial and inappropriate for the sentencing judge to attempt to prejudge the outcome of the appeal on file 21825347.
Counsel for the appellant was unable to suggest, either to the sentencing judge, or to me, how the three month sentence on file 21905144 could have been structured differently, in a way that would ensure that six weeks of that sentence would be served on top of the sentence to be served on file 21825347. Unless that could be achieved, the sentence on file 21905144 would have been manifestly inadequate as it would have been totally concurrent with the other sentence on file 21825347 for aggravated assaults involving three different victims on three different occasions.
Counsel did not offer any authority in support of her contentions. At the end of the day counsel’s contention was that:
It was incumbent on the sentencing judge to sentence the appellant to a sentence that was fair and just to him, in all the circumstances in accordance with the Sentencing Act - including taking into account the circumstances he presented with, namely, an impending appeal, of which the outcome was uncertain.
Counsel agreed that she could have requested the judge to adjourn the matter until after the appeal on file 21825347 was heard and determined. Counsel could also have applied for bail on both matters pending the outcome of the appeal. Having said that I understand that the appellant did apply for bail in the Local Court on 13 February 2020 but that application was refused. The appellant could have approached this court and sought a review of that decision.
The ground of appeal is not made out. His Honour was clearly aware of, and did take into account, the practical consequences of the pending appeal on file 21825347 including the possibility of that appeal succeeding. There was no error of law.
The appeal is dismissed.
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[1] LCA 41/2019. That appeal was allowed on 22 May 2019. See Hogan v Rigby [2020] NTSC 25.
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