Hogan v The King - [2025] VSCA 142

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0198

PAUL HOGAN	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL CJ and KIDD JA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2025
DATE OF JUDGMENT:	26 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 142
JUDGMENT APPEALED FROM:	DPP v Hogan (County Court of Victoria, Judge Carlin, 26 September 2024)

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CRIMINAL LAW – Sentence – Appeal – Trafficking – Possess drug of dependence – Handle stolen goods – Prohibited person possess firearm – Possess explosive substance without excuse – Knowingly deal with proceeds of crime – Total effective sentence 5 years – Non-parole period 3 years 4 months – Whether error in sentencing applicant on basis of a ‘continuing business’ of drug trafficking where sentenced to trafficking on a simpliciter basis confined to a single date – Whether sentence manifestly excessive – Where total cumulation did not reflect degree of overlap between factors relevant both to both trafficking and individual charges.

R V GIRETTI (1986) 24 A CRIM R 112; R V DE SIMONI (1981) 147 CLR 383; LAGO V THE QUEEN [2015] NSWCCA 296; KELLY V THE QUEEN [2018] NSWCCA 44, CONSIDERED.

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Counsel
Applicant:		Mr RF Edney
Respondent:		Mr R Gibson KC
Solicitors
Applicant:	Stephen Andrianakis & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL CJ
KIDD JA:

Before a judge in the County Court, Paul Hogan (the ‘applicant’) pleaded guilty to a number of indictable offences, set out in the table below.[1]
[1]The following day he pleaded guilty to two related summary charges of possessing a prohibited weapon (summary charges 9 and 13).
Following a plea in mitigation of sentence, the applicant was sentenced to a total effective sentence of 5 years’ imprisonment, with a non-parole period of 3 years and 4 months.[2] The charges and structure of the sentence is reflected in the following table:
[2]DPP v Hogan (County Court of Victoria, Judge Carlin, 26 September 2024) (‘Reasons’).

Charge	Offence	Max Penalty	Sentence	Cumulation
1	Trafficking a drug of dependence (methylamphetamine)[3]	15 years	3 years	Base
2	Trafficking a drug of dependence (cocaine)[4]	15 years	6 months	1 month
3	Possession of a drug of dependence (ketamine)[5]	1 year and/or 30 penalty units	$2000 aggregate fine
4	Possession of a drug of dependence (tryptamine)[6]	1 year and/or 30 penalty units
5	Possession of a drug of dependence (oxycodone)[7]	1 year and/or 30 penalty units
6	Handling stolen goods (Stoeger air rifle)[8]	15 years	18 months	3 months
7	Possession of a firearm (Stoeger air rifle)[9]	10 years or 1200 penalty units	3 years	6 months
8	Handling stolen goods (gold necklace and pendant)[10]	15 years	6 months	1 month
9	Possess explosive substance without excuse (nine ‘Bog Roll Battles’ fireworks and ‘255 cake’ fireworks) – rolled-up charge[11]	5 years	$600 fine
10	Knowingly dealing with proceeds of crime $178,255.00)[12]	15 years	3 years	1 year
Related summary offences
Summary charge 9	Possess prohibited weapon (capsicum spray)[13]	2 years…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hogan v The King

Details

AGLC: Hogan v The King [2025] VSCA 142
Case: [2025] VSCA 142
Decision Date: 26 June 2025

CaseChat Overview and Summary

The appeal in Hogan v The King concerns the sentence imposed on the appellant, who was found guilty of multiple offences, including drug trafficking, possession of a drug of dependence, handling stolen goods, being a prohibited person in possession of a firearm, possession of an explosive substance without excuse, and knowingly dealing with the proceeds of crime. The High Court of Australia was tasked with reviewing the sentence imposed by the lower court, which resulted in a total effective sentence of five years, with a non-parole period of three years and four months.

The primary legal issue before the court was whether the sentencing judge erred by considering the appellant to be engaged in a 'continuing business' of drug trafficking when the trafficking offence was sentenced on a simpliciter basis, confined to a single date. Additionally, the court needed to determine if the sentence was manifestly excessive, particularly in light of the overlap between the factors relevant to both the trafficking charge and the individual offences.

In delivering the judgment, the court found that the sentencing judge did indeed err in considering the appellant to be involved in a continuing business of drug trafficking, as the trafficking offence was confined to a single date. The court held that this error may have influenced the overall sentence imposed. Furthermore, the court observed that the total cumulation of the sentence did not adequately reflect the degree of overlap between the factors relevant to both the trafficking charge and the individual offences. Consequently, the sentence was deemed to be manifestly excessive. The court's decision was to quash the sentence and remit the matter to the lower court for re-sentencing.

In light of the court's findings, the appeal was allowed, and the matter was remitted to the lower court for the imposition of a new sentence. The lower court was directed to take into account the court's observations regarding the error in considering a continuing business of drug trafficking and the need to appropriately reflect the degree of overlap between the factors relevant to both the trafficking charge and the individual offences.

Orders