R v Hogan
[2008] VSCA 279
•19 December 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 130 of 2007
| THE QUEEN |
| v |
| MICHAEL MARTIN HOGAN |
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JUDGES: | MAXWELL P, REDLICH JA and ROBSON AJA | |
WHERE HELD: | SHEPPARTON | |
DATE OF HEARING: | 20 October 2008 | |
DATE OF JUDGMENT: | 19 December 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 279 | |
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CRIMINAL LAW – Appeal against sentence – Aggravated burglary, intentionally causing injury, theft, threatening to inflict serious injury – Whether sentencing judge gave proper weight to the appellant’s prospects of rehabilitation – Cumulation – Full cumulation on one count and no order for cumulation on others – Intention to fix longer than normal parole period – Failure to do so – Sentencing discretion re-opened.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J D McArdle QC and Dr S B McNicol | Mr S Ward, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr P F Tehan QC | Mr Greg Duncan, Solicitor |
MAXWELL P
REDLICH JA
ROBSON AJA:
(The judgment of the Court was delivered by Robson AJA)
Introduction
The appellant, Michael Martin Hogan, appeals against the sentences imposed on him upon his conviction in the County Court of Victoria on seven counts arising out of two home invasions. The appellant pleaded guilty to all counts.
On 12 September 2006, at approximately 11.00 pm, the appellant went to the home of Mr James Batson at 11 Gilbert Street, Wodonga. The appellant had been drinking heavily and was drunk. He met Mr Batson at the door and asked him for pills. The type of pills was not identified. Mr Batson denied having any pills. The appellant shouted at him and left. A short time later, he returned carrying a baseball bat. He forced his way into the house and searched it. This conduct constituted the first count, aggravated burglary, for which the appellant was sentenced to three years’ imprisonment.
The appellant asked Mr Batson to come outside and when Mr Batson did so, he struck him from behind three or four times with a baseball bat he was carrying, causing Mr Batson injuries. That conduct constitutes the third count, intentionally causing injury, for which the appellant was sentenced to two years’ imprisonment.
The appellant forced his way back into the house as Mr Batson was trying to ring the police. Mr Batson moved to the bedroom, apparently for self-protection, whereupon the appellant hit the bedroom door with the baseball bat. Whilst the appellant was in the house, he stole a Silver Max wrist watch. That theft constituted the second count, for which the appellant was sentenced to six months’ imprisonment.
A short time later on the same evening, the appellant, still armed with the baseball bat, went to another house at 7 McGaffin Court, Wodonga, where Mr Alan Mitchell lived. The appellant entered this house, without the permission of Mr Mitchell, carrying the baseball bat. He demanded $20 cash from Mr Mitchell.
Mr Mitchell said he didn’t have the money. The appellant threatened to assault him with the bat. Mr Mitchell retreated into his house. The appellant followed him, forcing Mr Mitchell to hand him his son’s softball bat. The appellant also demanded cigarettes from Mr Mitchell. Mr Mitchell tried to get into his bedroom for protection. The appellant kicked the door open and hit the door with the baseball bat, denting the door. That conduct constitutes the fourth count, aggravated burglary, for which the appellant was sentenced to three years’ imprisonment.
The appellant stole the softball bat, and also stole a Play Station II belonging to Mr Mitchell’s son. The appellant subsequently sold the Play Station II. Those thefts constitute the fifth count, for which the appellant was sentenced to six months’ imprisonment.
The appellant whilst swinging the baseball bat said to Mr Mitchell, ‘I’m going to kill someone tonight. I want to kill somebody. If you say anything to anybody, even the jacks, I’ll kneecap you and I’ll skull fuck you.’ Those threats constitute the sixth count, threatening to inflict serious injury, for which the appellant was sentenced to six months’ imprisonment.
After Mr Mitchell told the appellant he would not tell anyone, the appellant struck him with the baseball bat, hitting Mr Mitchell’s right leg, and then punched Mr Mitchell to his right eye causing injury to his right eye, his cheek bone and his brow. These two incidents constitute the seventh count, intentionally causing injury, for which the appellant was sentenced to one year imprisonment.
The sentencing judge ordered that three months of the sentences for counts 2, 3, 4, 5, and the whole of the sentence for count 7, be served cumulatively on the sentence on count 1, making a total effective sentence of five years’ imprisonment. A period of three years was fixed before the appellant would be eligible for parole.
The appellant has 26 convictions arising from eight court appearances. The appellant’s prior offences included theft, a bomb hoax, being drunk in a public place, possession of a controlled weapon, failing to answer bail and drug possession.
Both of the appellant’s victims filed Victim Impact Statements. Mr Batson said he was too frightened to leave his house in case of another attack. A door and an adjacent wall of his house had been damaged by the appellant. Mr Batson had suffered from multiple bruises on his back, chest and thigh, which caused him considerable pain. Mr Mitchell, who was on a single parent’s pension, was injured around the side of his face and his right knee. He had to use a walking frame because he had a sore hip. He was so disturbed by the attack that he wanted to move to live in another area.
The appellant had no reason for committing the crimes, and told investigating police he was ‘just drunk and stupid.’
The appellant relied upon four grounds of appeal:
Grounds 1 and 2:
The individual sentences, the total effective sentence and the non-parole period are manifestly excessive as the sentences passed upon the appellant fail to properly reflect sufficient weight being attached to the following matters:
(i) the appellant’s plea of guilty;
(ii) the deprived background of the appellant;
(iii) the relatively less serious prior convictions of the appellant;
(iv) the appellant’s youth; and
(v) the rehabilitative steps undertaken by the appellant including:
(a) his expressions of remorse in writing and on oath;
(b)his recognition of his alcoholic status and its impact upon his life;
(c) his undertaking of courses including attendance at Alcoholics Anonymous (AA) whilst in prison for over seven months;
(d)the prospect of training and work as a boilermaker upon his return to Melbourne to live with his father;
(e)the fact that he had in the past rid himself of heroin addiction, worked and not offended whilst living with his father; and
(f)his determination to rehabilitate himself and not to re-offend.
Ground 3:
The learned sentencing judge erred in finding that ‘apart from a relatively short period when you lived with your father after your parents separated you have consistently over the years been taking illicit drugs and alcohol, and that is for the major part of your teenage years’ (sentence, paragraph [12]) whereas in fact, as put on the plea, “There is, however, a gap in his history of some three years between 2003 and 2006. They were periods that he lived with his father where his father supervised him, assisted him to get off heroin and he wasn’t offending at that stage and he was working,” (Transcript p23), thereby underestimating the appellant’s prospects for rehabilitation.
Ground 4:
The learned sentencing judge erred in ordering the appellant serve the whole of the sentence imposed upon count seven cumulatively with the sentence imposed upon count one.
During oral submissions, counsel for the appellant made four principal submissions. First, he submitted that the upper end of the range of sentences open to the sentencing judge was a total effective sentence of four years with a minimum of two.
Secondly, counsel submitted that the learned sentencing judge failed to give sufficient weight to the appellant’s prospects of rehabilitation by returning to Melbourne to live with his father.
Thirdly, he submitted that the learned sentencing judge erred in cumulating the whole of the one year sentence imposed on count seven for intentionally causing injury.
Finally, he submitted that the sentencing judge erred in fixing the non-parole period. The sentencing judge had intended to fix a longer than usual parole period, to assist the appellant’s rehabilitation, but the parole period imposed was no longer than is usual.
The Crown conceded that two sentencing errors had been made. The first was to order cumulation of the whole of the sentence imposed on count 7. Secondly, the Crown conceded that the non-parole period of three years did not achieve the sentencing judge’s intention, which was to provide for a longer than usual parole period. The Crown accepted that if there was error in either of these respects, the sentencing discretion should be reopened, but disputed that the overall sentence was manifestly excessive or that insufficient weight had been give to the appellant’s prospects of rehabilitation.
Were the appellant’s prospects of rehabilitation given proper weight?
The appellant was born on 23 February 1984. Prior to 2003, he had been before the Children’s Court at Wodonga on three occasions on various charges including theft, handling stolen goods and possession of heroin. In 2002, he appeared before the Local Court at Albury, New South Wales, and the Magistrates’ Court at Wodonga. In December 2003, he had been convicted at the Magistrates’ Court at Heidelberg on two charges of theft, bomb hoax, being drunk in a public place and failing to answer bail (two charges). On 16 December 2003, he was convicted at the Magistrates’ Court at Elizabeth, South Australia, of estreatment of bail. On 21 June 2006, he was convicted at the Magistrates’ Court, Melbourne of eight charges of theft, failing to answer bail (six charges) and possessing a controlled weapon. He was given an effective two months sentence of imprisonment, which he served at Barwon Prison.
Thus, the appellant was out of court for some two and half years from the beginning of 2004 to mid-way through 2006. However, he had only been released from Barwon Prison a few weeks before he committed the offences the subject of the present appeal. The appellant submitted during the plea hearing that his father assisted him getting off his addiction to heroin. But his substances of choice had been cannabis and large quantities of alcohol. It appears the appellant’s term of imprisonment in Barwon Prison had little or no effect deterring him from his criminal ways. Nevertheless, the sentencing judge said as follows about his prospects of rehabilitation:
11. You started drinking at 14 or 15 years of age and commenced thereafter using other drugs including heroin when you were aged 17. It is apparent that you have had a very hard start in your life and you have had limited education, which is something, of course, a disadvantage you are going to carry with you all your life.
12. Apart from a relatively short period when you lived with your father after your parents separated, you have consistently, over the years, been taking illicit drugs and alcohol, and that is for the major part of your teenage years. You are still, and I say ‘still’ you are just in the category of a youthful offender, so that rehabilitation should loom as a significant sentencing factor, but you have an entrenched history of a youthful recidivist offender. You have of the order of 25 prior convictions for theft and other dishonesty offences as well as offences for drug use and assault. In my view having regard to the seriousness of your offending, I have no option to sentence you to a not insignificant period of immediate imprisonment and, indeed, that was conceded by your counsel.
13. You have told me and I was quite impressed by what you said when you got into the witness box, that you are anxious to reform your ways and I encourage you to do that. There are many slips in attempting to reform yourself. You have got a long way to go and I encourage you to persevere but you will find it a steep hill to climb. I have no alternative but to sentence you to a significant term of imprisonment, having regard to the seriousness of the offending and to the fact that you have a large number of prior offences.
14. Because of your relative youth and your apparent wish to become a law abiding citizen, I will give you more opportunity to serve a significant proportion of the sentence on parole, however that is not a free ride. If you are on parole and you re-offend you go straight back in to serve the balance of the sentence and you should always remember that.
In our view, the sentencing judge gave full and proper consideration to the prospects of rehabilitation. The particular complaint made by the appellant is that the sentencing judge had said that the period when the appellant lived with his father and had not been offending was a relatively short period, whereas in fact it was a gap of some three years between court appearances. As the above analysis shows, there was a gap of, at most, two and a half years. Further, although it may have been during this period that the appellant managed to rid himself of his heroin addiction, it is apparent he still remained addicted to alcohol. We do not agree that the sentencing judge gave insufficient attention to the mitigating factors put before him. We reject the submission that the mitigating factors were not properly reflected in the actual sentences passed and, in particular, the total sentence of five years.
Did the sentencing judge err in ordering that the whole of the sentence imposed on count 7 be cumulative upon the sentence imposed on count 1?
As mentioned, the Crown conceded this was an error.
The Court of Appeal dealt in DPP v Grabovac[1] with the proper principles of sentencing and cumulation where there was a large number of separate counts. The leading judgment was delivered by Ormiston JA (with whom Winneke P and Hedigan AJA agreed). The sentencing judge had fixed manifestly inadequate sentences on the individual counts in order that, when cumulated, they would not exceed what the sentencing judge considered to be an appropriate sentence in totality. Ormiston JA found that the sentencing judge ought to have imposed appropriate individual sentences for each offence before considering the issues of cumulation or concurrency. In particular, the sentencing judge ought as far as possible to have accommodated the totality principle and the need to avoid a crushing sentence by appropriate adjustments of cumulation orders. Ormiston JA stated that accumulation should reflect the criminality of each episode of offending. He said:
What the judge should have done was to fix the appropriate term for each offence, then to direct such accumulation and concurrency as would likewise reflect the criminality of each episode of offending and finally to look at the end result to see if the principle of totality had been breached and to see otherwise whether it was a crushing head sentence. I would not suggest that this should be a mechanical process. Obviously a judge could fairly fix on a degree of concurrency and cumulation with an eye to what would not offend against the principle of totality; after all that is the object of the rules relating to both concurrency and cumulation. But the starting point should be sentences which are proportionate to and appropriate for each offence.[2]
[1][1998] 1 VR 664, 680–1 (Ormiston JA).
[2]Ibid 683 (Ormiston JA).
The view that accumulation should reflect the criminality of the relevant offence and the episode to which it relates was again discussed in R v Izzard.[3] There Callaway JA (with whom Winneke P and Vincent JA agreed) dealt with a sentence appeal where the sentencing judge had imposed sentence on several counts which related to at least two separate incidents involving theft, armed robbery and intentionally causing injury. The sentencing judge imposed five years on the most serious count of armed robbery and lesser sentences on the others but without any cumulation. Thus, the sentence on the base count stood as the effective sentence. Callaway JA referred to R v McCorriston,[4] where his Honour had earlier said (with the agreement of Winneke P and Buchanan JA) that where cumulation is open and appropriate it should be adopted.
[3](2003) 7 VR 480.
[4][2000] VSCA 200.
In McCorriston, Callaway JA said it was erroneous for a judge to impose a particularly heavy sentence on one count and then allow the sentences imposed on all other counts to be served concurrently, if in the circumstances some accumulation would be justified.[5] His Honour stated that judges would sometimes be well advised to moderate the sentences they imposed on each count and to direct a measure of total, or more often partial, accumulation. That was especially so, his Honour said, when offences were committed on separate occasions or against different victims.[6] He justified what he called the moderate cumulative approach on three grounds. First, moderation is a virtue in itself. Secondly, other victims are not left to feel that the offences committed against them are meaningless statistics. Thirdly, a sentence structured in this way is less vulnerable on appeal.[7] These reasons are similar to those put forward in DPP v Grabovac[8] by Ormiston JA.
[5]Ibid [13].
[6]Ibid.
[7](2003) 7 VR 480, [23].
[8][1998] 1 VR 664, 680-1.
In our opinion, the sentencing approach discussed in both R v Izzard and DPP v Grabovac means that, where there are a number of counts each of which should properly be the subject of partial cumulation, full cumulation should not be arbitrarily ordered on only one count to produce a total effective sentence which satisfies the totality principle. There should ordinarily be partial cumulation where discrete episodes are involved in the various counts. The extent of the cumulation on a particular count may have to be tailored, bearing in mind the need for cumulation on other counts, so as to ensure that the totality principle is observed and a crushing effective sentence is not imposed.
There can be no inflexible rules as to how this is done. What is important is that whether or not cumulation is imposed must reflect the criminality of the offences and episodes involved, subject always to the due observance of the totality principle. In R v Coukoulis[9] Ormiston JA (with whom Charles JA and Cummins AJA agreed) said:
One might enquire why, if this court were to conclude that the cumulation of the whole four years on count 1 was manifestly excessive, the overall total effective sentence of nine years should be maintained. If only one or two years should be added to the five years imposed for the theft counts, why, it may be asked, should the total effective sentence still be nine years rather than the apparently resulting six or seven years? In my opinion the answer can be easily deduced from the method adopted by his Honour to produce that total effective sentence. In effect, the judge was seeking to apply Grabovac in a case where there were so many terms of imprisonment that it would have been in breach of the principle of totality to cumulate appropriately many of those terms. The solution preferred in Grabovac is to impose the correct sentence for each count and then to work out, having regard to the principle of totality, the proper total effective sentence, making such limited orders for cumulation as are fair in order to reach an overall sentence which is not in breach of that principle of totality or of any other relevant sentencing principle. There will necessarily be some ad hoc reasoning and arbitrary conclusions if that process is to be carried out effectively when numerous counts have to be dealt with in the course of sentencing. It should be the final result, the total effective sentence, and any minimum term, with which the sentencing judge should be primarily concerned. I am not suggesting (nor should this court countenance) that quite inappropriate orders for cumulation be made, but some cumulations will seem possibly inadequate and others a little too much in what is an otherwise acceptable exercise of discretion as to the period appropriately to be cumulated and what is to be left concurrent.[10]
[9](2003) 7 VR 45.
[10]Ibid [32]. See also R v GJ [2008] VSCA 222 [75] (Nettle and Weinberg JJA and Hargrave AJA).
The discretion to order cumulation between counts is a very broad one. It should not be unnecessarily circumscribed. Reasonable minds will differ as to whether cumulation should be ordered and if so in what amount. Despite the concession by the Crown, we find it unnecessary to determine whether or not the learned sentencing judge erred in his approach to cumulation as the sentencing discretion is to be re-exercised in any event.
Were the individual sentences and effective sentence manifestly excessive?
Nor do we accept that the individual sentences were manifestly excessive. The offences were serious and particularly malicious and had significant adverse effects on the two unfortunate victims. The sentences imposed were within range.
Resentencing
As already observed, the sentencing judge intended to fix a significant portion of the sentence to be served on parole. The Crown concedes that the sentencing discretion is reopened because this did not eventuate.
The appellant is a relatively youthful offender. He obviously has a significant problem with alcohol abuse. He was able to wean himself off heroin, which is commendable. During the plea submissions, counsel for the Crown indicated that a ‘longish’ period of parole would be appropriate rather than a suspended sentence. The sentencing judge properly indicated a lengthy parole period would assist the appellant’s rehabilitation. We agree. We consider a minimum sentence of two years and six months to be appropriate in the circumstances.
Conclusion
We would allow the appeal and resentence the appellant as follows:
Count 1, 3 years’ imprisonment.
Count 2, 6 months’ imprisonment.
Count 3, 1 year and 6 months’ imprisonment.
Count 4, 3 years’ imprisonment.
Count 5, 6 months’ imprisonment.
Count 6, 6 months’ imprisonment.
Count 7, 1 year and 6 months’ imprisonment.
We would order that 6 months of the sentence imposed on count 3, 1 year of the sentence imposed on count 4 and 6 months of the sentence imposed on count 7 be served cumulatively on each other and, on the sentence imposed on count 1, making a total effective sentence of 5 years. We would fix a non-parole period of 2 years and 6 months.
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