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R v Hogan

R v Hogan

Case [2008] VSCA 279 19 December 2008

Appeal

Aggravated & Exemplary Damages

Sentencing

Cumulation

Criminal Law

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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…

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 R v Hogan

Details

AGLC: R v Hogan [2008] VSCA 279
Case: [2008] VSCA 279
Decision Date: 19 December 2008

CaseChat Overview and Summary

In the matter of the Crown versus Hogan, the appellant brought an appeal against his sentence before the court. The appellant had been convicted of several offences, including aggravated burglary, intentionally causing injury, theft, and threatening to inflict serious injury. The court was tasked with determining whether the sentencing judge appropriately considered the appellant's prospects for rehabilitation and the principles of cumulation in sentencing.

The primary legal issues before the court were whether the sentencing judge had appropriately assessed the appellant's potential for rehabilitation and the application of the principle of cumulation. The appellant argued that the sentencing judge did not sufficiently weigh his prospects of rehabilitation and that the cumulation principle was applied inconsistently across the different offences. The Crown contended that the sentencing judge had appropriately exercised their discretion and that the sentence was proportionate to the severity of the crimes committed.

The court held that the sentencing judge had failed to give proper weight to the appellant's prospects of rehabilitation and that the cumulation principle was not consistently applied. The court found that the judge had intended to fix a longer than normal parole period but had failed to do so, thereby reopening the sentencing discretion. Consequently, the court allowed the appeal, quashed the sentence, and remitted the matter to the sentencing judge for reconsideration. The court emphasised the importance of properly applying the principles of sentencing, particularly in relation to the appellant's prospects for rehabilitation and the consistent application of cumulation.

The final orders of the court were that the appeal be allowed, the sentence quashed, and the matter remitted to the sentencing judge for reconsideration in light of the court's findings. The court did not specify a new sentence but directed that the sentencing judge consider the appellant's prospects of rehabilitation and the principle of cumulation in a consistent and principled manner.

Orders