R v Hogan - [2021] NSWDC 747

District Court

New South Wales

Medium Neutral Citation: R v Hogan [2021] NSWDC 747
Hearing dates: 26 November 2021; 13 December 2021
Date of orders: 13 December 2021
Decision date: 13 December 2021
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
A term of imprisonment of three years and ten months with a non-parole period of 17 months: at [84].

Catchwords: SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — Establishing relevant matters— Maximum penalty — Moral culpability — Objective seriousness — Purposes of sentencing — Quasi custody
SENTENCING — Subjective considerations on sentence — Extra curial punishment — Mental illness — Special circumstances
Legislation Cited:
Crimes(SentencingProcedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Kelly v R [2018] NSWCCA 44
R v Burns [2007] NSWCCA 228
R v Chami; R v Hassoun; R v Halloum [2021] NSWDC 519
R v Naghdi [2021] NSWDC 635
R v Pham [2015] HCA 39
R v Wran [2016] NSWSC 1015
R v Wu [2021] NSWDC 634

Category: Sentence
Parties:
Regina (Office of the Director of Public Prosecutions)
Danielle Hogan (Offender)
Representation:
Mr D Robinson (Crown Prosecutor)
Ms J Ghabrial (Counsel for the offender)

File Number(s): 2019/351396
Publication restriction: NON-PUBLICATION ORDERS APPLY
Non-publication orders made pursuant to Court Suppression and Non-Publication Orders Act 2010. Please refer to court file for details

Judgment

Danielle Hogan, aged 26, has pleaded guilty to one count of supplying a prohibited drug in excess of the commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years.
The maximum penalty and the standard non-parole period are both important yardsticks in the sentencing process, which much take into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. The purposes outlined by that provision include ensuring that the offender is adequately punished for the offence, to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for her actions, to denounce her conduct and to recognise the harm done to the victims of the crimes and to the community.
The plea of guilty was entered in circumstances justifying a 25% discount on any term of imprisonment.
The offender has served 13 days in custody after her arrest on 7 November 2019 and any term of imprisonment will take that period into account.
The facts surrounding the offending are for the most part common to those involving a number of other people who have already been sentenced in relation to a drug supply operation.
I have previously sentenced the co- offenders as follows:

Mohammad Chami…

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 [2021] NSWDC 747
Case: [2021] NSWDC 747
Decision Date: 13 December 2021

CaseChat Overview and Summary

The case of R v Hogan involved the defendant, Hogan, who was sentenced by the court following a plea of guilty to various criminal charges. The nature of the dispute centred on the appropriate term of imprisonment and the non-parole period to be imposed, taking into account various mitigating and aggravating factors. The court had to navigate a complex web of legal issues, including the consideration of Hogan's plea of guilty, the extent of his rehabilitation efforts, his display of remorse, and the broader objectives of sentencing such as deterrence, denunciation, and rehabilitation. The court also needed to evaluate the subjective and objective circumstances surrounding the offence, including the defendant's mental health and the impact of extra-curial punishment.

The legal issues before the court included determining the appropriate weight to be given to the defendant's plea of guilty, his demonstrated remorse, and efforts at rehabilitation. The court was required to consider the maximum penalty available for the offences, Hogan's moral culpability, and the objective seriousness of the crimes. Additionally, the court had to balance the purposes of sentencing, such as deterrence and denunciation, with the need for rehabilitation and the consideration of any special circumstances that might warrant a lesser sentence. The court also needed to establish the relevant matters that should inform the sentence, including the defendant's mental health and any extra-curial punishment already endured.

In delivering its reasoning, the court emphasised the importance of Hogan's plea of guilty as a mitigating factor, noting that it demonstrated an acceptance of responsibility. However, the court also acknowledged the objective seriousness of the offences, which necessitated a substantial term of imprisonment. The court took into account Hogan's efforts at rehabilitation and his display of remorse, but balanced these against the need for deterrence and the protection of the community. The court considered the maximum penalty available, Hogan's moral culpability, and the purposes of sentencing, ultimately determining that a term of imprisonment of three years and ten months, with a non-parole period of 17 months, was appropriate. This sentence reflected the court's consideration of all relevant factors, including Hogan's mental health and the extra-curial punishment already faced.

The final orders of the court were that Hogan be sentenced to a term of imprisonment of three years and ten months, with a non-parole period of 17 months. This sentence was intended to reflect a balance between the need for punishment and deterrence, the objectives of sentencing, and the mitigating factors presented by the defendant.

Orders

Orders of the court

A term of imprisonment of three years and ten months with a non-parole period of 17 months: at [84].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Hogan [2021] NSWDC 747
Hearing dates:	26 November 2021; 13 December 2021
Date of orders:	13 December 2021
Decision date:	13 December 2021
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	A term of imprisonment of three years and ten months with a non-parole period of 17 months: at [84].
Catchwords:	SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — Establishing relevant matters— Maximum penalty — Moral culpability — Objective seriousness — Purposes of sentencing — Quasi custody SENTENCING — Subjective considerations on sentence — Extra curial punishment — Mental illness — Special circumstances
Legislation Cited:	Crimes(SentencingProcedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Kelly v R [2018] NSWCCA 44 R v Burns [2007] NSWCCA 228 R v Chami; R v Hassoun; R v Halloum [2021] NSWDC 519 R v Naghdi [2021] NSWDC 635 R v Pham [2015] HCA 39 R v Wran [2016] NSWSC 1015 R v Wu [2021] NSWDC 634
Category:	Sentence
Parties:	Regina (Office of the Director of Public Prosecutions) Danielle Hogan (Offender)
Representation:	Mr D Robinson (Crown Prosecutor) Ms J Ghabrial (Counsel for the offender)
File Number(s):	2019/351396
Publication restriction:	NON-PUBLICATION ORDERS APPLY Non-publication orders made pursuant to Court Suppression and Non-Publication Orders Act 2010. Please refer to court file for details