R v Hogan [2004] NSWSC 959

New South Wales Supreme Court

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 S C Kavanagh SOLICITORS : Watsons

- 6 - 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 was decided that she should go to a hostel until she began behaving herself again. Before she left the house she consumed Diazepam, though it is not known how much. She and the offender left the house to go to the hostel before 10 o'clock in the morning. 6 At about 11:30am the offender arrived at the casualty section of Wollongong Hospital. The deceased was in the back of the car, apparently in a coma. She was unconscious and her breathing was shallow. She was treated in emergency surgery, where her brain was found to be grossly swollen. The staff did what they could for her but she could not be revived. She remained on life support for two days, but then the equipment was turned off. 7 When he reported to the hospital the offender told a false story, namely that the deceased had jumped out of the car while it was travelling at about 100 km per hour. He repeated that story a few days later in his first interview with the police. Medical staff were sceptical whether the deceased's injuries could have come about in that way. 8 Later on, the offender went to the police station a second time and told a different story. He said that by 27 June 2001 he had not slept for five days and that the story he had told did not ring true. Since then some of his memory had come back to him. He had driven the car towards Unanderra and the deceased had told him at a certain point to stop the car. He had done so and she had got out. He had asked her to get back into the car and she had. He had driven a little farther along the road and she had simply stepped out. His speed at the time was between 50 and 60 km per hour. 9 There is support from an independent witness for the joint position the parties now take on the manner in which the deceased received her injuries. As I have said, the offender and the deceased left home before 10am. Not long after that time Mrs Beth Donovan was driving in Corrimal Street, Wollongong at about 40 km per hour. She was following a car which the parties accept was that driven by the offender. The deceased was in the front passenger's seat. As the car travelled along the street the passenger's door opened, but not far and not for long. The vehicle continued on and Mrs Donovan continued to follow it. It stopped at a red traffic light in Burelli Street. In her evidence in the Local Court Mrs Donovan said that she saw the passenger's door flung open and believed that the passenger was trying to jump out of the car - It was as though she had kicked the door open, sort of leaned over, tried to open the door, tried to kick the door open to get out. Sort of leaned to the right as though she was kicking the door. 10 Mrs Donovan saw the driver take hold of the passenger around her top half near her chest to stop her getting out. She did not see the driver hitting the passenger or vice versa. 11 Mrs Donovan was asked how the door closed on this second occasion and said - It looked like when the car was taking off quickly at the traffic lights, the car took off quickly but then slowed down to the normal speed limit. 12 From all that she had seen, Mrs Donovan formed the opinion that it was the high rate of acceleration of the car that had closed the door. She thought that she had been witnessing a domestic argument and thought nothing more about the matter until she saw a report in the press, which prompted her to contact the police. 13 The offender's second version was given to the police before he was charged and before he could have known that Mrs Donovan was a witness to the events in Corrimal Street and Burelli Street. 14 The injuries received by the deceased are consistent with having been caused in a fall from a vehicle moving at a speed significantly lower than 100km per hour. 15 Accordingly, it is agreed that the Court ought to sentence the offender on the following bases - 1. The Offender and Deceased were together in the vehicle which was stationary at the side of the road. The Deceased was in a distraught state. 2. In circumstances strikingly similar to her behaviour in Corrimal and Burelli Streets (as observed by Mrs Beth Donovan), the Deceased threw open the passenger's side door and attempted to leave the vehicle. 3. The Offender was on notice as to the possibility of her behaving in this manner in light of her earlier conduct. Instead of immediately attempting to stop the vehicle and properly taking hold of her to stop her leaving, he decided to take off at some speed in the hope that this sudden forward motion would cause the door to shut (as it did before). 4. At the very same time as he began to accelerate away, the Deceased was in such a position in the vehicle that this sudden forward motion caused her to fall onto the roadway causing the injury resulting in her death. 5. At the time the Deceased fell from the vehicle it was not moving at any great speed but was in the process of accelerating. 6. The Offender did not act with the intention to kill, or cause grievous bodily harm, or with reckless indifference to human life. 7. The Offender acknowledges that his deliberate act in commencing to accelerate the vehicle was conduct carrying with it an appreciable risk of serious injury. 8. The plea to Manslaughter is an acknowledgment that the death of the Deceased did not result from an accident, and that the act causing death was deliberate in the relevant legal sense and that it constituted an unlawful and dangerous act. See Meissner (1995) 184 CLR 132 at 141. 16 The offender was born on 30 December 1956. In 1975 he committed some traffic offences, including fraudulently using a licence. In 1978 he was convicted of two counts of breaking, entering and stealing and was put on a two-year bond. Otherwise he has not offended except in the course of his uneasy relationship with the deceased. He has been in custody for this offence since his arrest on 19 September 2002. 17 Mr Dalton, for the offender, drew the attention of the Court to a number of sentences imposed in this Court for manslaughter. However, such is the breadth of criminality in manslaughter cases that they do not point to any particular sentence as appropriate on the facts of this unusual case. I regard the criminality of the offender as very low. 18 The offender's early plea of guilty entitles him to a substantial discount for saving the State the time and effort of trying him. It is also evidence of his remorse. I accept, as he said in his statement on 19 August 2004, tendered on sentence, that he is sorry that he told the untruthful story to the police. I accept that his intention was not to hurt the deceased but to get her treatment if he could. I accept that even though their relationship was not an easy one, it was one that he valued and that he is suffering from the consequences of his actions. 19 The offender has done remarkably well since he was taken into custody. He is highly regarded by those who have the oversight of him and has been given special responsibilities on account of that. 20 Because this is the offender's first significant sentence of imprisonment and because he is suffering from the loss of the deceased in such tragic circumstances, I think that he will need an extended period of assistance on parole to help him adjust to life in the community. 21 Phillip Raymond Hogan you are sentenced to imprisonment for four years. Your sentence will be taken to have commenced on 19 September 2002 and will end on 18 September 2006. I fix a non-parole period of two years and three months which will expire on 18 December 2004. You will become eligible for release on parole on that day.