Hogan v The Queen
[2017] VSCA 230
•1 September 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0064
| SHANNON HOGAN | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| 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) |
---
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.
---
| 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) 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, Tanner, joined the second complainant, Cardwell, and Nathan. The first complainant threw a can of beer near the applicant, hitting the applicant’s car. Both complainants and Nathan then approached the applicant and Cocking in their front yard, and a fight ensued.
McKay moved to the porch and rang ‘000’ as the children tried to get into the house. The recording of the call was played at the plea hearing. In it, Tucker could be heard swearing and shouting threats at McKay. The phone was then knocked out of McKay’s hand as Tucker pushed her. It appears that one of McKay’s children was also knocked over. McKay ran inside her house, obtained a knife, went back outside and passed the knife to the applicant, who was grappling with the first complainant on the ground.
Using the knife, the applicant struck the first complainant once in the upper left arm (Charge 1). The first complainant retreated to his driveway and collapsed. He had sustained a puncture wound to his upper left tricep, a brachial artery laceration and significant blood loss. He was later airlifted to the Royal Melbourne Hospital where he stayed for a week and underwent two surgeries. He was left with protracted and possibly permanent loss of mobility and nerve damage.
The second complainant was grappling with Cocking on the ground when he felt a whack to his chest. He turned and saw the applicant standing beside him and McKay striking him with a vacuum cleaner pole. At some point, the applicant had slashed or stabbed the second complainant with the knife (Charge 2). The second complainant suffered a bilateral haematoma and extensive bruising to his cheekbone, a right-sided laceration to his chest wall of approximately 15 centimetres in length which perforated his pectoral muscles, split his right rib and perforated his lung cavity, as well as a collapsed lung and bruising. He underwent emergency surgery that night at the Albury Wodonga Hospital. He spent six days in hospital including time in the Intensive Care Unit.
The applicant then retreated, being chased by Nathan until the applicant reached the front door of his house.
As Tucker attempted to assist the second complainant, McKay struck her with the vacuum cleaner pole, before being pushed away by Nathan. The fighting ended and everyone returned to their respective houses.
When police arrived, the applicant said that he had stabbed two males from the neighbouring house and produced the knife. He was arrested and taken to Wodonga Police Station. In his police interview, he admitted to stabbing both complainants, stating that he was scared and felt as though he had no other option.
Paramedics also arrived at the scene and attended to the injured. Both complainants were transported to hospital.
In the aftermath, the complainants, Nathan and Cocking were charged with and pleaded guilty to affray in the Wodonga Magistrates’ Court. Haylee McKay was charged, as the applicant’s co-accused, with affray for fighting with Tucker. She pleaded guilty and was sentenced on the same day as the applicant to an 18-month good behaviour bond. Mechelle Tucker was not charged in relation to the incident.
Sentencing remarks
When sentencing the applicant, the judge noted that both complainants had ‘suffered dreadful and significant injuries with long-term consequences.’ He referred to their victim impact statements, noting how the first complainant had suffered physically, mentally and financially as a result of the applicant’s actions. The second complainant had become paranoid and suffered from depression. The stabbing had taken an emotional and financial toll on him as well as those around him.
When considering the personal circumstances of the applicant, the judge recorded that the applicant had grown up in a dysfunctional family marred by drugs, alcohol and physical abuse. His parents’ relationship was highly unstable, and his education was disrupted due to frequent moves.
His Honour noted that the applicant had a consistent work history, several construction licences and a positive reference from his current employer. He noted that the applicant now had four children with McKay, one of whom, R, had recently been diagnosed with autism spectrum disorder. He referred to a report from the diagnosing psychologist, which outlined the deleterious impact that the applicant’s incarceration would have on his family:
At p.18, under ‘Family Recommendations’ the report states: ‘It is very stressful for young families to have a special needs child and Haylee and Shannon are trying to get the right supports for [R] so they can assist him as best as they can. It should be noted that Haylee is a young mother, with no functional family support, who will be living in Melbourne, a new city for her, on her own with four young children to look after, once she does not have the support of her partner in the coming future. There will be a high level of demands on her. The support of the children’s father has been very important for this family to maintain its independence in these circumstances. She has presented as a very competent parent and both parents have been very committed to their role of supporting the children’s needs.’
At p.19, under the heading ‘Psychosocial Issues and Concerns’ the report states: ‘It is important to note that the family is facing incarceration for Shannon. The children have suffered trauma from the family events and witnessing of violence. [R] himself witnessed the alleged assault and was reportedly knocked over by one of the neighbours who allegedly had come across from next door intoxicated and looking for a fight. He has become increasingly anxious and his enuresis has returned. The two older children, in particular, are very vulnerable to a stress breakdown, this has been very clear in their behavioural shifts and their extreme anxiety in the past few weeks.
In dealing with Haylee they say: ‘Her mental state is very fragile under the current stress and this family will require considerable support in the following months. Despite the complex social disadvantage the parents have faced throughout their lives, as per reports, they are continuing to provide a cohesive, stable and loving environment to the children.’
His Honour remarked that, despite the applicant’s disadvantaged upbringing, he was a hardworking and dedicated family man who worked with his partner to provide for his children, and that ‘to some extent it was [the applicant’s] fierce protection of [his] children that contributed to [his] committing the offences’.
The judge acknowledged that the applicant’s incarceration would cause major hardship to his partner and children, but concluded that it was not exceptional hardship according to the authorities. His Honour did accept that concern over his family’s hardship meant that gaol would be more burdensome for the applicant.
His Honour then said:
It is apparent, from what I have just said, that I have reached the view that a term of imprisonment must be imposed for your offending. I am of the view that the purposes of sentencing cannot be achieved by the imposition of a Community Corrections Order alone. Your offending is simply too serious for such a disposition, using a knife in the way you did, exposing your victims to significant injury and even risk of death. Both of your victims are lucky to be alive. Each of them could have died, each of them struggle to live with the consequences of your actions.
Although I accept that your crimes occurred against a background of your defending yourself and your family, the use of a weapon, the knife, and the infliction of the injuries you caused requires this court to express strong community denunciation of your conduct. Principles of general deterrence and specific deterrence are important in this case. Others need to understand, and you need to understand, that the use of weapons to inflict injury and serious injury to others simply cannot be condoned.
Imprisonment is always the sentencing option of last resort. I recognise that imprisonment can have significant detrimental effects on offenders, particularly young offenders. The law requires this court to carefully consider the imposition of a Community Corrections Order as an alternative to imprisonment. I have done so and have concluded that the principles of proportionality and just punishment require this court to impose a term of imprisonment.
I propose to impose a combination sentence, that is, a relatively short term of imprisonment combined with a Community Corrections Order. Such a disposition will, in my view, enable me to properly recognise the strong mitigatory factors in your case.
The judge took into account as factors in mitigation the applicant’s guilty pleas, admissions to police, evident remorse, limited criminal history, lack of subsequent offending and demonstrated steps taken toward reformation by attending a course run by the Salvation Army. His Honour described the applicant’s prospects of rehabilitation as good, having regard to his solid work history, stable and loving family and prospects of employment. He considered that support offered by a CCO would further advance the applicant’s rehabilitation.
Ground of appeal
The applicant seeks leave to appeal on the following ground, namely that
the sentencing judge erred by:
(a)concluding that the purposes of sentencing could not be achieved through the imposition of a community correction order; and consequently
(b)imposing an aggregate sentence that was manifestly excessive.
It is to be observed that, contrary to paragraph (a), the judge did not conclude that the ‘purposes of sentencing could not be achieved through the imposition of a community correction order’. Had his Honour so concluded, and then proceeded to impose a sentence including a CCO component, as he did, doubtless an error would have been made. But, importantly, what the judge said was:
I have reached the view that a term of imprisonment must be imposed for your offending. I am of the view that the purposes of sentencing cannot be achieved by the imposition of a Community Corrections Order alone [emphasis added].’
The judge then gave his reasons for concluding that an immediate term of imprisonment was required, and why it should be combined with a CCO, having regard to the purposes of sentencing.
The applicant’s real complaint was to be found in his written case — that the sentencing judge was, in the circumstances of the case, bound to impose a non-custodial sentence. Paragraph (a), in the terms stated on the leave application notice, did not adequately address that issue. Probably, the word ‘alone’ should have been included. So stated, it formed a particular to paragraph (b) alleging manifest excess.
Submissions
The applicant submits that it was open to the sentencing judge to impose a wholly non-custodial sentence in the circumstances, and that the sentence of imprisonment was manifestly excessive. He relies on the principle of parsimony, which requires that a sentence be no more severe than is necessary to meet the purposes of sentencing.[1] Relevantly, s 5(4C) of the Sentencing Act 1991 gives expression to that principle by requiring a court to consider whether the purposes of sentencing may be met by an appropriately conditioned CCO before imposing a sentence that involves the confinement of an offender. He cited the Court of Appeal’s guideline judgment for CCOs in Boulton v The Queen.[2]
[1]At common law and Sentencing Act 1991.
[2](2014) 46 VR 308, 311, 330–3, 335, 337–8.
The applicant relies on the following factors:
(a) the offending occurred in circumstances where the applicant was confronted by the complainants at his own property and protection of his children contributed to his offending;
(b) the prosecutor acknowledged at the plea that a trial ‘would not be without its problems’ for the prosecution;
(c) the injuries sustained by the complainants were significant and relevant to the gravity of the offending but were to be considered together with the other factors; and
(d) the combination of mitigating circumstances, including the applicant’s good prospects of rehabilitation.
The Crown relies upon the objective gravity of the offending and the severe injuries suffered by the complainants. It was submitted that, in the circumstances, a sentence of imprisonment was warranted and the sentence imposed was within the permissible range.
It was noted that at the Wodonga Magistrates’ Court on 12 August 2013, on two charges of recklessly causing injury and throw missile, the applicant had been sentenced without conviction to a CCO of nine months with a condition to perform 80 hours of unpaid community work. There were also two earlier Children’s Court matters in 2006 and 2007.
The Crown submits that the substantial mitigating factors — dysfunctional background, pleas of guilty, remorse, good prospects of rehabilitation and concern for his family whilst in custody — were reflected in the modest term of imprisonment imposed.
Consideration
The question on a sentence appeal alleging manifest excess is whether the sentence imposed, taking all relevant matters into account, was wholly outside the range of sentencing options available to the sentencing judge.
In Winch v The Queen,[3] the Court of Appeal, in the course of dealing specifically with recklessly causing serious injury by ‘glassing’, considered, generally, that cases involving the use of a dangerous weapon likely to produce serious injury ‘will usually require a term of immediate imprisonment’.[4] Maxwell P and Redlich JA said:
It is important to recall that [recklessly causing serious injury] is a very serious offence. It carries a maximum penalty of 15 years. An examination of the elements of the offence reveals why this is so. First, the offence involves the causing of serious injury to the victim. Secondly, the mental element of the offence — recklessness — means that the offender has consciously disregarded a known risk.
The offence of [recklessly causing serious injury] is only committed if the offender foresaw the probability that his/her action would cause serious injury to the victim, and went ahead regardless of that probability. This is not mere carelessness, where the offender fails to appreciate the risk of injury. This is conscious disregard of a risk of serious injury which the offender knows to exist.
As this Court pointed out in Ashe v R, the court’s assessment of the seriousness of a particular instance of [recklessly causing serious injury] will involve considering both the degree of probability that serious injury will result, and the degree of seriousness of the injury thus foreseen.[5]
[3](2010) 27 VR 658.
[4]Ibid 669 [53]-[54] (Maxwell P and Redlich JA), 672 [71] (Ashley JA).
[5]Ibid [34]–[36] (citations omitted).
What was said by their Honours above in relation to the mental element of the offence also applies to the offence of recklessly causing injury.
In our view, considering the relevant factors and circumstances and the seriousness of the offending, the sentence was well within the range of sentencing options available to the judge.[6] Indeed, the sentence can be described as very modest. It fully reflects all the mitigating circumstances upon which the applicant relied. His contention of manifest excess is not made out.
[6]Melnikas v The Queen [2016] VSCA 112 [62]-[63].
The application for leave to appeal is refused.
---
4
2
0