Director of Public Prosecutions v Hourigan

[2023] VCC 2449

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR 21-01628

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER HOURIGAN

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 December 2023
CASE MAY BE CITED AS:	DPP v Hourigan
MEDIUM NEUTRAL CITATION:	[2023] VCC 2449

REASONS FOR SENTENCE
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Catchwords: CCO Contravention; Failure to not commit further crime.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Atkinson
For the Accused	Mr T. Antos

HIS HONOUR:

1Mr Hourigan is now 32 now, having been born in December 1991.  And at the time of the offending, he was 29.  I note that present in Court is his father.

2

I sentenced him on 5 November 2021 to a combined aggregate sentence of

30 days and a CCO of two years.  I refer to my sentencing remarks as to that offending and they bear repeating.  I incorporate those sentencing remarks in this sentence.

3At [23] I remarked that Mr Hourigan had pleaded guilty to Charges 7 and 12 on the indictment, being two serious charges, both of which had a maximum penalty of 15 years.

4The first is Charge 8, an offence against 71A(c)(1) for which the maximum penalty prescribed is 15 years.  This was trafficking 1,4-Butanediol and in an amount of 2.3 K's.

5At paragraph [24], there was some discussion as to values at the time and where it was agreed that the street value of the drugs was between $11,000 and $20,000.  The drug itself is a precursor to the party drug GBH and it is noted that that trafficable quantity in fact, is 50 grams, commercial quantity was 2 kilos.  However, the amount pleaded to, albeit over the maximum threshold was pursuant to the agreement entered into between the parties.  The trafficking in particular being comprised by way of having a drug of possession, a drug of dependence in possession for sale.

6The second serious was charge 10, that was a charge under 72(b) to cultivate a narcotic plant.  In this instance cannabis.  The amount being found at the premises being 3.473 kilos, trafficable quantity being 250 grams.  The next threshold is 25 kilos for a commercial quantity, hence the amount found was very much within that threshold.  Again, as I have said, the maximum penalty was 15 years.

7Charges 7, 9, 11 and 12 are all charges of possession of drugs of dependence under s73.  The maximum penalty being five years and/or 400 penalty units.  Seven, was a possession of methamphetamine in the sum of 69 grams, agreed street value between $24,000 and $41,000.  Charge 9, cocaine was found was 50 grams, the trafficable quantity is 30 grams.  Street value is between 17,745 and 22,815.  I will not go into the matters of steroids, however counsel also pleaded guilty on that time to a breach under the Confiscation Act of a proceeds charge being found with the sum of $3,260.

8I also refer to my determination as to the seriousness of the objective criminality in the matter.  I noted of course, that the charges were associated with his own drug use, him being a heavy user of cannabis and GBH.  And I specifically said at [75] to Mr Hourigan, albeit that it may be seen by the community as a merciful sentence at the time, based upon his age, the fact that he had no priors, the particular circumstances of the plea, the efforts that were put to me then as to his rehabilitation, that it was a merciful sentence that he would not get again.  I warned him, 'You come back during the period of two years that I am going to impose in this community centre, and you bring your toothbrush.'

9The breach of the CCO Mr Antos, pleaded guilty to the breach of the CCO on Mr Hourigan's behalf.  The failure pleaded by way of breach of conditions was the failure to not commit further crime.  I point out that this failure occurred some three weeks and seven days from the end of the period that I'd imposed.  In regard to the breach report, it's noted that the offending and indeed the breach concerns similar matters.  On 7 October last year, he was found with proceeds of offending, he was in possession of cocaine and a further drug of dependence.  For that matter in the Magistrates' Court on 8 October 2023 he was given a Community Correction Order of 12 months.

10He is not charged with any further breaches, but it is of assistance to my determination to note that insofar as the conditions under the order, he had not completed the supervision aspects and indeed was not contactable for a period of two months during the period.  His rehabilitation insofar as drug services was satisfactory and had been completed.  He had apparently taken mental health sessions of his own, however the community correction service had not had confirmation insofar as that is concerned.  He had failed the only urine test he had been given, and unfortunately none further had been arranged.  And I note that the conclusion at p5 of such report of Mr Fadwa Carvee, the case officer, was to this effect. Mr Hourigan engaged politely and was forthcoming during supervision.  However, his attendance and commitment to his CCO was sporadic.  This is evident by his numerous periods of absconding and lack of engagement and commitment to his CCO.  Albeit the recommendation is at this stage something that now cannot be done, that the order be confirmed, because the order has now ceased.  The importance of that conclusion is not so much the facts themselves because they are not part of the breach.  However, they indicate because of the sporadic and lack of commitment why he breached the order and committed and further similar offending. The legislation which introduced Community Correction Orders was a substitute for suspended sentence.  The operation of Community Correction Orders was canvassed by the Court of Appeal generally in Boulton [2014] VSCA 342. They noted the major concern of the government when introducing the legislation and that the circumstances provided for that if such an order was not complied with, appropriate sentences should be applied.

11 In the plea, Mr Antos was at pains to ask the Court not to impose any further period of imprisonment.  He pointed to the observance of the order that had been in fact, effected by Mr Hourigan albeit described as sporadic.  In particular to the number of times he had attended on drug treatment.  Mr Antos also referred to the satisfactory report on the most recent CCO imposed in October.  Albeit, as is clear that report is of very limited context given that it was only imposed this year.

12Mr Antos also pointed out that getting over drug addiction is no easy task, with which the Court agrees.  The Court has ample experience of those circumstances, and indeed that is the very reason why I imposed a Community Correction Order which did not contain a work element, so he could concentrate on overcoming his drug difficulties.  The problem here unfortunately, is that despite being given that opportunity to not serve a term of imprisonment, Mr Hourigan has committed further offending in the period and unfortunately offending in regard to drugs.  The exact same offending that had been committed before.  Unfortunately in those circumstances, there is, in my view no alternative but to impose a period of gaol.  Would you stand please Mr Hourigan.

13In regard to the offence under s83AD, that is the breach of the

Community Correction Order, you will be convicted and discharged.

14In regard to the determination to be made by way of resentencing under s83AS, I take into account Mr Antos's submission as to resentencing.  I also take into account the particulars of s83AS(2) as to the extent to which you have complied with the order.  Taking into account all of those matters that I have detailed and the totality of the circumstances set out in my earlier sentencing remarks, I have determined that in regard to Charges 7, 8, 9, 10, 11 and 12 on the indictment and the summary charge you will be sentenced to an aggregate sentence of five months' imprisonment.

15As I understand it is agreed that the PSD in regard to such sentence is 35 days.

16MR ATKINSON:  Thirty-six Your Honour.

17MR ANTOS:  Thirty-six.

18HIS HONOUR:  Sorry, I apologise, 36.  And pursuant to s18 I declare the service of that period is to be deemed part service of the five month sentence of imprisonment imposed.

19In regard to 6AAA albeit in the circumstances on reflection in my view now, certainly not substantial enough, I do take into account that I am sentencing as at the time that I impose the sentence and therefore I take into account and make the same determination under 6AAA that had Mr Hourigan not pleaded guilty originally, that the period imposed would not have been five months, but a nine month straight gaol sentence.

20Mr Hourigan, all I can say, it does not give the Court any joy to send you to gaol at this time of the year, however the reason for that is totally your fault.  You are now no longer young.  You are 32, you have got your whole future ahead of you.  You have a good background.  It is time for you to grow up.  Next time you come back if you do, you will get a much higher sentence than that.  Yes, good luck.  Gentlemen, any matters that I need to attend to?

21COUNSEL:  No, Your Honour.

22HIS HONOUR:  Yes, you can take the prisoner away.  Yes, I thank counsel for their assistance.

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