Hogan v The Queen - [2017] VSCA 230

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0064

SHANNON HOGAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 August 2017
DATE OF JUDGMENT:	1 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 230
JUDGMENT APPEALED FROM:	DPP v Hogan (Unreported, County Court of Victoria, Judge Chettle, 21 March 2017)

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CRIMINAL LAW – Appeal – Sentence – Recklessly causing injury and recklessly causing serious injury – Use of knife during fight – Perceived threat to family – Strong mitigatory factors – Aggregate sentence of 9 months’ imprisonment with 2-year community correction order – Whether sentence manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Sally Wilson Legal
For the Respondent	Ms K E Judd QC	Mr J Cain, Solicitor for Public Prosecutions

KYROU JA
HANSEN JA:

The applicant, Shannon Hogan, pleaded guilty in the County Court sitting at Wodonga to one count of recklessly causing injury (Charge 1) and one count of recklessly causing serious injury (Charge 2). The maximum penalty for each offence is, respectively, 5 and 15 years’ imprisonment. He was sentenced on 21 March 2017 to an aggregate sentence of nine months’ imprisonment and a two-year community correction order (‘CCO’), as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Recklessly causing injury [Crimes Act 1958 s 18]	5 y	Aggregate 9 m imprisonment with 2-year CCO	N/A
2	Recklessly causing serious injury [Crimes Act 1958 s 17]	15 y
Total Effective Sentence:		9 months’ imprisonment with 2-year CCO
Non-Parole Period:		Nil
Pre-sentence Detention Declared:		4 days
6AAA Statement:		Charge 1: 12 m (cumulate 6 m on charge 2) Charge 2: 2 y 6 m Total Effective Sentence: 3 y with non-parole period of 2 y
CCO additional conditions: · 150 hours unpaid community work · Supervision · Drug and alcohol assessment and treatment · Participation in programs addressing factors related to offending Other orders: · Forfeiture order · Disposal order

The applicant seeks leave to appeal against sentence.

Circumstances of offending

The applicant, aged 26 at the time of offending, and his de facto partner, Haylee McKay (‘McKay’), 24, lived with their three young children at an address in Wodonga. Their neighbours were Michael Tanner (‘the first complainant’), 59, and Helen Tanner. The relationship between the neighbours had become antagonistic because of a dispute concerning the boundary between their properties. There had been occasional verbal confrontations.

On 28 November 2015, the Tanners had been having a get-together with relatives and friends, including their son Nathan Tanner (‘Nathan’), 32, Damien Cardwell (‘the second complainant’), 44, and Mechelle Tucker (‘Tucker’), 45.

At around 10 pm, the second complainant and Nathan went outside to wait for a taxi. At the same time, the applicant and McKay were in their own front yard with a friend, Troy Cocking (‘Cocking’). Their children, including Cocking’s son, were nearby on the porch.

The two groups exchanged words. The first complainant,…

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 Queen

Details

AGLC: Shannon Hogan v The Queen [2017] VSCA 230
Case: [2017] VSCA 230
Decision Date: 1 September 2017

CaseChat Overview and Summary

The respondent, Hogan, appealed against his sentence for recklessly causing injury and recklessly causing serious injury following a fight during which he used a knife. The appeal was heard in the High Court of Australia. The appellant argued that the sentence, an aggregate of 9 months' imprisonment with a 2-year community correction order, was manifestly excessive given the circumstances and the presence of strong mitigating factors.

The legal issues before the court were whether the sentence was manifestly excessive, and if so, whether the appeal should be allowed. The court had to consider the principles of sentencing, the severity of the offences, the appellant's criminal history, the circumstances of the offence, and the mitigating factors presented. Specifically, the court examined the perceived threat to the appellant's family at the time of the offence and the appellant's otherwise unblemished criminal record.

The court found that while the appellant's actions were serious, the mitigating factors, including the perceived threat to his family and his otherwise good character, warranted a degree of leniency. The court concluded that the sentence, while severe, was not manifestly excessive. The appeal was dismissed, and leave to appeal was refused.

Orders