R v Cogley

[2000] VSC 307

SUPREME COURT OF VICTORIA	Do not Send for Reporting
CRIMINAL JURISDICTION	Not Restricted

No.1451 of 1998

THE QUEEN

v

SHANE ALEXANDER COGLEY

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JUDGE:	Hampel J
WHERE HELD:	Melbourne
DATE OF SENTENCE:	30 May 2000
MEDIUM NEUTRAL CITATION:	[2000] VSC 307

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Criminal law – Murder – Retrial – Sentence - Non-parole period – Predetention time served – Effect of sentence imposed after arrest – Delay.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr. Horgan	Office of Public Prosecution
For the Accused	Mr. Dane	Valos Black & Associates

HIS HONOUR:

1. Shane Alexander Cogley, on 13 May this year you were convicted by the jury of the crime of murder.  This was a retrial following your successful appeal from a conviction for murder and another offence before Ashley, J. in December of 1998.  You were then sentenced, on 22 December, to a total of 21 years' imprisonment with a non-parole period of 16 years.  Eighteen years of that sentence was the sentence for murder for which you were again convicted by the jury before me.

1. Your victim was your friend Kevin Hitchens.  You shot him at point-blank range in the head in King Street on 28 June 1997.  I find, as did Ashley, J., that this was done in anger.  After the shooting you fled and you were finally arrested in Queensland on 15 August 1997.

1. The full account of the circumstances of this killing, your record and some details about your personal position appear in the sentencing remarks of Ashley, J. They need not be repeated.  I agree with what His Honour found and adopt what he said.

1. It was common ground during the plea before me between counsel representing you, Mr Dane, and Mr Horgan for the Crown, that I should impose the same sentence for the murder as was imposed by Ashley, J.  I see no reason in this particular case to disagree with that approach.

1. The two issues which have arisen in sentencing you are, first, what should now be the non-parole period and, second what, if any time, should be declared as having been served pursuant to the sentence. I heard submissions from Mr Dane and Mr Horgan about the non-parole period but I reserved for further argument the question of pre-sentence detention. It is now common ground that the correct approach, given the law as it stands, is that there is no pre-sentence detention to which you are entitled. This is because after your arrest and remand in custody you were sentenced on 15 September 1998 to 3 years and 6 months' imprisonment by Judge O'Shea with a non-parole period of 2 years. His Honour declared pre-sentence detention which covered all the past time you had spent. The sentence by Judge O'Shea does not lapse until 10 July this year. Because of the operation of the Sentencing Act in strict terms that means that the non-parole period, although it lapsed in early 1999, is treated as part of the sentence and the sentence does not finish until July. Therefore I think it is rightly conceded before me this morning that the correct approach technically is that you have no pre-sentence detention.

1. I mention that matter first because it has, in my view, some bearing on the question of the non-parole period.  Although technically you are not entitled to have any pre-sentence detention time declared as having been served, I think it would be unjust to ignore the fact that since the expiration of the 2 year non-parole period some time early 1999, that is the non-parole period fixed by Judge O'Shea, you would have been entitled to apply for and get parole, although your chances, of course, of getting it would not have been high.  As to the non-parole period issue, Mr Dane put it that the period should be 14 years, Mr Horgan submitted that it should be 15 years.  In exercising my sentencing discretion I have chosen the lesser period in order to minimize the possible injustice which the strict interpretation of the law may have produced, and also to reflect the fact that you have, through no fault of your own, have had to undergo two trials and a significant delay.  This approach in the exercise of my discretion I hope will give you the opportunity for which Mr Dane contended.

1. The sentence of the court therefore is that you be sentenced to be imprisoned for 18 years.  I fix a period of 14 years before which you will not be eligible for parole.

1. I also make the order sought by the Crown for the provision of the blood sample.  I should tell you that, should you not consent to that, reasonable force may be used to obtain it.

MR HORGAN:  Would Your Honour also make a declaration that, or a note on the record that the prisoner is a serious violent offender?

HIS HONOUR:  Yes.  Ashley, J. Did that, did he not?

MR HORGAN:  Yes, Your Honour. 

HIS HONOUR:  I make the same note as part of my findings.

MR HORGAN:  If Your Honour pleases.

HIS HONOUR:  Thank you.

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