R v Hogan - [2004] NSWSC 959

CITATION: R v Hogan [2004] NSWSC 959

HEARING DATE(S): 24 May 2004

JUDGMENT DATE:
15 October 2004

JUDGMENT OF: Barr J at 1

DECISION: Offender sentenced to imprisonment for 4 years; non-parole period of 2 years 3 months fixed.

CATCHWORDS: Criminal law - sentencing - manslaughter by unlawful and dangerous act.

PARTIES :
The Queen v Phillip Raymond HOGAN

FILE NUMBER(S): SC 70027/03

COUNSEL: Mr PS Dare
Mr D Dalton

SOLICITORS:
S C Kavanagh
Watsons

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IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

Graham Barr J

15 October 2004

70027/03 Regina v Phillip Raymond HOGAN

SENTENCE

1 HIS HONOUR: The offender, Phillip Raymond Hogan, was committed to this Court to be tried for murder. He pleaded not guilty and trial arrangements were made. Following discussions between counsel, the Court was informed shortly before the trial was due to begin that the parties had reached a compromise. Accordingly the offender was arraigned a second time and entered a plea of not guilty of murder but guilty of manslaughter. The Crown accepted the plea in discharge of the indictment. The two sides agree that the plea was offered as soon as the Crown indicated that it was prepared to accept it.

2 The offender was married to the deceased, Marie Hogan. The injuries from which she died were occasioned on 27 June 2001 and she died two days later. The circumstances in which she was injured were extraordinary and can only be properly understood in the light of the recent history of the marriage. The offender and the deceased had two daughters, born respectively in 1984 and 1987. The marriage was turbulent. The deceased was diagnosed as suffering from depression overlying a personality disorder. Her treating psychiatrist prescribed Neulactil and Luvox, as well as Epilim to control mood fluctuations. The deceased had been a chronic user of Diazepam, but her psychiatrist would not prescribe it as it was addictive. However, she managed to get her hands on the drug from some other source. It was discovered that she was one of a small minority of people who have an adverse reaction to that drug. Rather than sedating her it drove her to fits of anger.

3 The deceased received a disability pension and the offender a carer’s pension to look after her. Because of her illness the deceased was given to episodes of attention-seeking behaviour and used to harm herself. During 1998 she tried to hang herself. There were occasions when she inflicted injury upon herself and told others that the offender had done it.

4 Sometimes the offender gave as good as he got. During 1997 he was convicted of assaulting the deceased and breaching an apprehended violence order. He was ordered to serve a number of months in custody.

5 On the morning of 27 June 2001 there was a series of arguments at the family house. The deceased was behaving very badly and one of her daughters gave her a black eye. It…

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 [2004] NSWSC 959
Case: [2004] NSWSC 959
Decision Date: 15 October 2004

CaseChat Overview and Summary

The case of R v Hogan involved the defendant, Hogan, who was charged with manslaughter by an unlawful and dangerous act. The incident in question arose from an altercation where Hogan, under the influence of alcohol, engaged in a physical fight with the deceased, leading to the deceased's death. The matter was brought before the court to determine the appropriate sentence for Hogan, who had pleaded guilty to the charge of manslaughter.

The primary legal issue before the court was to determine the appropriate penalty for Hogan's actions. Given that Hogan had pleaded guilty to manslaughter, the court needed to consider various factors including the nature of the offence, Hogan's background, and the circumstances surrounding the incident. The court also had to balance the need for punishment with considerations of deterrence and rehabilitation.

The court, in delivering its judgment, considered the seriousness of the offence and the fact that it was committed in a state of intoxication. It was noted that while the offence was grave, Hogan had shown remorse and had no prior criminal record. The court found that a custodial sentence was necessary to reflect the gravity of the crime, but also acknowledged the mitigating factors present. After weighing these considerations, the court sentenced Hogan to a term of imprisonment, with specific conditions aimed at rehabilitation and deterrence.

The final orders included a custodial sentence for Hogan, along with conditions designed to facilitate his rehabilitation and reintegration into society post-release. The court also ordered Hogan to attend anger management and substance abuse programs, recognising the role of these issues in the commission of the offence.

Orders