HOGAN v Regina [2008] NSWCCA 150

New South Wales Court of Criminal Appeal

CITATION: HOGAN v Regina [2008] NSWCCA 150

HEARING DATE(S): 13 May 2008

JUDGMENT DATE: 2 July 2008

JUDGMENT OF: Beazley JA at 1; Johnson J at 85; McCallum J at 86

1. Appeal against conviction in respect of count 4, dismissed; DECISION: 2. Application for leave to appeal against sentence granted; 3. Appeal against sentence in respect of count 4, allowed; 4. Set aside the trial judge's sentence in respect of count 4 and in lieu therefore, impose a non-parole period of 4 years 3 months, commencing on 23 August 2007 and expiring on 22 November 2011 and a balance of term of 1 year 9 months expiring on 22 August 2013.

CATCHWORDS: CRIMINAL LAW – appeal against conviction of maliciously inflicting actual bodily harm with intent to have sexual intercourse – whether specification of a particular injury required – whether trial judge distinguished the need to find actual bodily harm inflicted maliciously as well as intent to have sexual intercourse - CRIMINAL LAW – appeal on directions to jury – requirement that actual bodily harm be inflicted maliciously – adequate directions given regarding the need to find malice – full definition of malice given to jury – whether error - CRIMINAL LAW – appeal against sentence – whether trial judge erred on principles stated in De Simoni - CRIMINAL LAW – appeal against sentence – special circumstances where accumulative effect of sentencing produces a non-parole period in excess of statutory ratio

Crimes Act 1900; ss 5, 61K, 66C LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s 44(2) Criminal Appeal Act 1912, s 6 Criminal Appeal Rules, r 4