Director of Public Prosecutions v Hourigan
[2021] VCC 1770
•5 November 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01627
CR 21-01628
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW HOURIGAN CHRISTOPHER HOURIGAN |
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| JUDGE: | HIS HONOUR JUDGE McINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 October 2021 |
| DATE OF SENTENCE: | 5 November 2021 |
| CASE MAY BE CITED AS: | DPP v Hourigan |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 1770 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty –Trafficking in a drug of dependence – Possession of a drug of dependence – Cultivation of a narcotic plant – Trafficking operation – Financial reward – Addiction – Prior offences – Rehabilitation – Imprisonment – Community Correction Order – Time Served
Legislation Cited: s71AC(1), s72B, s73(1) Drugs, Poisons and Controlled Substances Act
Sentence:
Andrew Hourigan: Total effective sentence of 22 days imprisonment with 22 days of presentence detention declared as service of the sentence. Ordered to serve a community correction order for a period of 3 years with conditions.
Christopher Hourigan: Total effective sentence of 30 days imprisonment with 30 days presentence detention declared as service of the sentence. ordered to serve a community correction order for a period of 2 years with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Fallar | Office of Public Prosecutions |
| For Accused C. Hourigan | Mr C. Pearson | Marcevski Lawyers |
| For Accused A. Hourigan | Mr C. Farrington | Marcevski Lawyers |
HIS HONOUR:
1This plea took place on 20 October this year in regard to 12 charges in Indictment C2114216.
Andrew Hourigan
2In regard to the first six charges, Mr Andrew Hourigan pleaded guilty to those charges. At the time of the offending he was between 21 and 22. He was born on 16 October 1998, and is now 22. The prosecutor in the matter was Ms Fallar, and she appears today, and Mr Farrington appeared on the behalf of Mr Andrew Hourigan.
3The first and most serious charge that Mr Andrew Hourigan faces is the charge under s71AC of the Drugs,Poisons and Controlled Substances Act, which is a traffic simpliciter charge for which the maximum penalty imposed by Parliament is 15 years imprisonment. The period of trafficking is three months from 5 October 2020 to 13 January 2021. The amount involved is 155 grams, that being 50 times the threshold for a trafficable quantity, which actually involves six sales, then finally an offer for sale on 24 or 25 January, which was for the largest volume involved, but that planned sale in fact was not effected because Mr Andrew Hourigan was arrested.
4In regard to the sales, of cocaine, the purity varied in the six sales of between 62 per cent and 80 per cent, the value of between $450 up to $8,800 depending on the volume. The total receipts from effected sales to undercover agents was $15,000, and the last aspect of the charge, that is offering drugs of dependence for sale, involved a price of $34,000. It is to be pointed out that in regard to the definition of trafficking under s70(1)(c), one can traffic by both selling and offering.
5It also should be pointed out that four instances of trafficking occurred after bail had been entered into for other offences on 25 October 2020. It is also to be noted that a specific condition of that bail was not to possess illicit drugs. Section 16(3)(c) would normally be applicable to dictate that all of the sentences be cumulated, however given the type of charge that Charge 1 is, and the fact that it encompasses a period before and after entering into the bail, obviously it is not applicable to this charge.
6Section 16(3)(c) is however applicable to the rest of the charges, because Charges 2 to 6 all occurred after Andrew Hourigan entered into bail, and after a warrant was issued, and he was arrested on 27 January 2021.
7In regard to both the accused, who have pleaded guilty to all of these charges, I want to say firstly on behalf of the community, congratulations to the police officers involved. It apparently emanates out of their Moorabbin CIB or special unit there. The investigation began in September 2020, it involved the use of undercover operatives, and produced these pleas.
8Madam Prosecutor, I would like you to personally ensure that the Director's office advise the officers of the Court of my thanks to the operatives of the Moorabbin Police Station, or if I have gotten it wrong, the appropriate police station, for the work done on behalf of the community in this endeavour.
9MS FALLAR: Yes, Your Honour.
10HIS HONOUR: In addition, Mr Farrington, on behalf of Mr Andrew Hourigan, pleaded guilty to two summary charges. The first is Charge 7, a breach of bail, such breach was committed four days after entering into bail, a breach of s30B of the Bail Act for which a maximum penalty of 30 months imprisonment and/or three penalty units apply.
11The final summary charge is under s465AAA of the Crimes Act. It is a serious charge in itself, being a failure when requested by officers to provide access data, in this instance to an iPhone and a laptop when he was arrested. An indication of its relative seriousness is the fact that a maximum penalty of two years imprisonment is provided.
12If I can quickly detail the other charges which relate to drugs found in Mr Andrew Hourigan's possession at his parent's place, where he was living, at 57 Hughes Street, Malvern East. Charge 2 involves possession of Stanozolol which is a body building agent, apparently, a steroid, the amount was 9 grams, and it is noted that under 50 grams is a small quantity. Charge 3 was possession of 1,4 Butanediol, again a party drug, it is, as I understand it, a precursor to ‘GHB’, again a small quantity being 37.1 grams.
13Charge 4 involved possession of cannabis in his car. There were five bags, making up 96.5 grams, with an agreed value of between $1930 and $2865. The fifth charge involved possession of 0.15 grams of cocaine, it was 50 per cent purity, it was in the car and again the agreed value in that matter is between $52 and $67. The sixth charge was possession of MDMA of 3.8 grams valued at between $11.40 and $15.20. In regard to this type of offending Mr Andrew Hourigan in fact does have a prior charge, however that offence which was in June 2018 involved possession of drugs, and no conviction was recorded.
14Mr Andrew Hourigan does have a subsequent conviction for possession of cannabis, for which he was given a good behaviour bond. Prior to being bailed he had served 22 days on remand. A pecuniary penalty order is being sought by the prosecution as are disposal orders.
15HIS HONOUR: Madam Prosecutor, what is the position with the pecuniary penalty order.
16MS FALLAR: That has already been provided on the last occasion. That is by consent.
17HIS HONOUR: Okay, so in regard to that, Mr Farrington , you are happy for me to sign that as part of the agreement?
18MR FARRINGTON : Yes, Your Honour.
19HIS HONOUR: And also pursuant to me taking the view form our discussion, and it being agreed to by all parties, that I can take that pecuniary penalty order into account in sentencing?
20MR FARRINGTON : That is correct, Your Honour.
Christopher Hourigan
21HIS HONOUR: If I then come to Christopher Hourigan. At the time of his plea, he was aged 29, born on 4 December 1991. He was represented by Mr Pearson at the plea, and today. All of the charges occurred on 27 January 2021, when Christopher was arrested as a result of the investigation as to Andrew's activities. At the time Christopher was residing at 23 Mulberry Crescent, Frankston North. It is to be noted that in the instances of trafficking detailed in Charge 1 of Andrew's indictment, Andrew had used Christopher's car; that is in instances 1, 3, 4 and 5.
22However, I point out, they do not come before the Court as co-accused and there is no necessity for me to determine their joint culpability, I only have to determine their culpability in regard to the matters for which they have charged.
23As I have said, Mr Christopher Hourigan pleaded guilty to Charges 7 to 12 on the indictment. There are two serious charges amongst those by way of maximum penalty. The first is Charge 8 an offence against s71AC(1) for which the maximum penalty prescribed is 15 years, this was trafficking in 1,4 Butanediol, an amount of 2.32 kilograms.
24There has been some discussion this morning about values, and it would appear whether one takes the information provided by Mr Pearson, or by the informant, the value of 2 kilograms of this product is between $11,000 and $20,000, that is street value. It should be pointed out that this is essentially a precursor to making of what was described by Mr Pearson as the party drug ‘GHB’. It is to be noted that in Schedule 11, Part 3 a trafficable quantity is 50 grams, a commercial quantity is 2 kilos.
25Clearly the amount pleaded to is over the maximum threshold for a trafficable quantity in this drug, however the plea to s71AC(1), and therefore to the lesser maximum penalty was part of the agreement entered into by the parties prior to the plea. I point out that again, pursuant to the definition in s70(1) the trafficking here was comprised by way of having such drug of dependence in possession for sale.
26The second is Charge 10 under s72B, cultivate a narcotic plant, in this instance cannabis, the amount found at the premises comprised 3.473 kilograms, the trafficable quantity is 250 grams. The next threshold is 25 kilograms for a commercial quantity, hence the amount found was very much within the threshold of a trafficable quantity. The maximum sentence, as I have said, is 15 years. It was agreed that clearly the system utilised, compared to some of the systems that come before this Court, could be described as a somewhat unsophisticated growing system.
27Charges 7, 9, 11 and 12 are all charges of possession of a drug of dependence under s73 to which Mr Christopher Hourigan pleaded guilty. The maximum penalty being five years, and/or 400 penalty units. Again I will detail those charges. Charge 7 involved the possession of methamphetamine; the amount was 69.4 grams, the agreed street value is somewhere between $24,290 and $41,460. Charge 9, cocaine, Mr Hourigan was found with 50.7 grams, a trafficable quantity is 3 grams, the street value again was agreed at between $17,745 and $22,815.
28Charge 11 was the possession of what is described as a small quantity of MDMA/MDA both, given the definitions, were small quantities. Charge 12 involved six different anabolic steroids the total of those was 96.3 grams, a small quantity of anabolic steroids under Schedule 11(3) is 50 grams, hence without using the information from the informant as to the cost of a vial, clearly, it is a relatively minor amount by way of not only volume but value.
29Mr Pearson on behalf of Mr Christopher Hourigan also pleaded guilty to a proceeds charge under the Confiscation Act s195 in regard to the $3,260 found in Mr Christopher Hourigan's possession. The maximum penalty prescribed by Parliament for such offence is two years imprisonment.
30Disposal and forfeiture orders have been sought and it is agreed that the pre-sentence detention served by Mr Christopher Hourigan once arrested was a period of 30 days.
Objective Culpability of Andrew Hourigan
31I come then to assess the objective culpability of each of these accused. I assess Andrew's culpability, in particular in regard to Charge 1, as being high. The offence obviously, given its maximum penalty, is inherently serious. In my view it was sophisticated. It was advertised on digital platforms using pseudonyms, no doubt well known to the customers. The deals were entered into remotely, they were completed in designated different locations/streets. The dealings took place persistently over three months, and as I have said, as to four of those occasions they were committed after Mr Hourigan was placed on bail on 25 October 2020. Clearly Mr Andrew Hourigan was carrying out his own trafficking operation and doing so for financial reward.
32Mr Farrington put in submission that individually the amounts were relatively modest, however the totality of the trafficking here is not modest, it is 155 grams which is fifty times the threshold for trafficking quantity.
33The prosecution accepts that this criminality was associated with polysubstance drug abuse by Mr Andrew Hourigan. Such is as I understand it, related to his addiction to GHB at the time, and for two years prior to these offences, as set out in Mr MacKinnon's report at p9, which is Exhibit H2.
Objective Culpability of Mr Christopher Hourigan
34Coming then to the objective criminality of Mr Christopher Hourigan, the serious charges obviously are Charges 8 and 10 given the maximum penalty involved and the fact that such a penalty imposed by Parliament indicates its seriousness. In assessing this I do however accept Mr Pearson's point that while post Pidoto [2006] VSCA 185, [38] –[41], we are involved in assessing these crimes in a volume-based scheme, and there is no discrimination in so far as drugs and their effect and their danger to the community, it is appropriate for a Court to discriminate when assessing culpability between the value of individual drugs in regard to what they may return to a miscreant from trafficking.
35Here I accept that we are at the lower end of the potential value of drugs that can be marketed. I was referred by Mr Pearson to DPP (Cth) v Maxwell [2013] VSCA 50, [33] to [34], and the phrase used there, the reward differential. I should then add Charges 7 and 9 which are serious instances of possession, as I have said, by way of not only volume but value on the street.
36Again the prosecution accepts that these charges are associated with his own drug abuse, drug abuse in the sense of consuming of drugs. He was at the time, as set out in the statement to Ms Ferrari in particular, being Exhibit C2 at p8, a heavy user of cannabis and GHB.
Plea of Mr Andrew Hourigan
37I come then to the plea put by Mr Farrington in regard to Andrew Hourigan. Mr Farrington accepted the facts as detailed in Exhibit A of the Crown opening. He tendered his own written submissions as Exhibit H1 and spoke to those. Mr Farrington submitted that it would be appropriate, taking account of all factors, that a community correction order be granted to his client either combined with the served pre-sentence detention of 22 days, pursuant to s41 and/or as a straight community correction order.
38The prosecution submitted that, given the totality of the circumstances a combined sentence was within range, however the Court was left with the option as to what degree of imprisonment should be imposed. Mr Farrington set out in his submissions, and spoke to them as I have said, the background of Andrew from paragraphs 4.1 to 4.6 of Exhibit H1. It is clear that Andrew has had a supportive family, he has five siblings. Clearly, Andrew had some issues that, given the references that I have received from the family, did not seem to be particularly noticed by the family.
39Andrew Hourigan was well supported, educated and completed his VCE at Wesley College. He was not, unfortunately, as a result of a number of aspects in his life capable of going on further in his studies. Andrew, however, prior to COVID-19 leading to his unemployment, had a good work history with NBN as a technician, but as I said, ultimately lost his job.
40One of the major issues in Andrew’s life has been that as child he suffered from a brain tumour detected between the ages of 7 to 8. That brain tumour was of a dimension that required an operation, essentially, I understand that he spent three years absent from school. For some time after the operation Andrew had ongoing issues with balance. Andrew saw himself as having particular issues with his parents, and in particular his mother, who protected him and intervened in what he wanted to do. He had particular issues also with reading and writing. Andrew was particularly limited as being involved in contact sports and also suffered ongoing spinal pain.
41It is somewhat difficult to fully understand the consequences of that tumour and the resulting operation because there is simply no evidence before the Court from a medical source. What was tendered was a report from the psychologist Mr MacKinnon, Exhibit H2. That report confirmed the background and also noted the history provided by Mr Andrew Hourigan at p2, that as a result of the tumour and its consequences as a young boy he suffered from ongoing anxiety and depression. However, it seems to be notable that when one reads from p5 of the report in regard to the history, Mr MacKinnon says this mid-page p5,
'Mr Hourigan stated that since 2014 he had not attended any additional neurophysiological assessment, not received any psychological or psychiatric treatment. He began partaking in GHB in late 2019, and apparently by the time of losing his employment was well into an addictive mode.
42The diagnosis made by Mr MacKinnon is contained at pp 6 to 7. The first matter is that Andrew had a polysubstance abuse disorder, however as noted in the report that is said to be in advanced remission. Andrew has an anxiety and depression disorder since being a young boy, for the circumstances and reasons which I have already put. Also on p6 he diagnosed an organic brain syndrome called by Mr MacKinnon an ‘OBS’. Such was not explained or explored by Mr MacKinnon and comprehension of it is very difficult on the basis of the report. I note, at p8, the following was said:
'Mr Hourigan does not possess an inherently antisocial or criminal disposition. His offending appears to have been essentially driven by his involvement in chronic substance abuse, which had been very much a means for him to self-medicate in regard to his chronic distress. Reflecting on his offending Mr Hourigan stated he recognised his life had deteriorated as a consequence of his habitual substance abuse and is remorseful and ashamed to have accrued a criminal record. In my opinion, at the time I assessed him he understood the ordinary meaning of right and wrong and he was able to comprehend and competently negotiate his legal matters.'
43Mr MacKinnon goes on to give an opinion of which Mr Farrington based his application for a Verdins [2007] VR 269, [32], dispensation, if I put it that way, in regard to principles 1, 2 and 3 in that case. In my view, there is no basis at all to such. I should note that Mr MacKinnon favourably notes the excellent steps taken by way of rehabilitation. Essentially, what Mr Farrington put in submission as to the Verdins, was that but for the tumour operation he would not have committed the crime.
44As is well known, submissions such as this require rigorous assessment. I am not particularly impressed with the opinion given by Mr MacKinnon, nor do I accept the proposition that Verdins principles 1, 2, 3 apply. It seems to me that, as clearly identified by Mr MacKinnon and identified by Andrew Hourigan himself, the major issue relating to this criminality is his own polysubstance abuse.
45Such is confirmed by Lamberti and Associates where Andrew was treated by Ms Brown. He has attended weekly since being bailed in February of this year. It was noted by way of history, no evidence of conduct behaviour disorders; no emotional upheaval prior to the breakdown of a relationship apparently when Andrew was about 18. Mr Hourigan presented with significant substance abuse disorder dating back to his later adolescence. His primary substance of addiction appeared to be cocaine and gamma-hydroxybutyrate (‘GHB’); however, he also engaged in the use of cannabis and MDMA at problematic levels. It is to be noted that he has complied with what might be seen as strict bail conditions.
46In this regard I also note as part of his rehabilitation the urine samples which were tendered to the Court as Exhibit H5, all are negative over the eight months of such sampling. Exhibit H6 has character references which are of value. Andrew’s father indicates the ongoing support the family would offer to him. His two friends offer strong support for him. And again, Andrew’s employer points out, albeit only working part time at the moment, that he is a person who is prepared to work hard.
47In support of the submission for a community correction order, Mr Farrington put to the Court, firstly, the plea of guilty, clearly Mr Andrew Hourigan is entitled to an appropriate discount for such plea. In addition, given the plea has an enhanced utilitarian benefit, the principle of Worboyes [2021] VSCA 169, [39], apply, where greater weight must be given to a plea in these pandemic circumstances, and I suppose you need no greater indication of that than the situation of both accused in the dock, and the words used by the Court is the need for a pronounced amelioration of sentence where pleas are made in those circumstances.
48In addition, Mr Farrington stressed the relative youth of his client, no prior convictions, the good prospects of rehabilitation. The motive for these crimes, which he submitted I should accept, being to fund, in circumstances of unemployment, his own multi-substance habit.
49Mr Farrington also pointed out as to Charge 1, the 112 grams being the last transaction, so to speak, that such was trafficking pursuant to the definition by way of an offer for sale, and that such sale did not take place. However, it seems to me that is not of much assistance to Mr Andrew Hourigan as the only reason it did not take place is the police decided to act. I also accept that in determining the appropriate sentence, I must give weight to the fact that Mr Andrew Hourigan has agreed to a pecuniary penalty order being signed by this Court in the sum of $15,000. By consent it has been agreed that such must be taken into account by myself in determining sentence.
50I must say that given the seriousness, in particular of Charge 1, consideration of what to do with Mr Andrew Hourigan has been exquisite. In regard to rehabilitation, I refer to DPP v Tokava [2006] VSCA 156, the President at paragraph 21 said:
'A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the community interest will be best served by that course.'
51The President referred to a case from ACT of R v Dixon (1975) 22 ACTR 13 and quoted Fox J where His Honour said:
'When, therefore, a Court has to consider whether to send a young person to gaol for the first time, it has to take into account the likely adverse effects of a gaol sentence. A distinct possibility, particularly if the sentence is a long one, is that the person sent to gaol will come out more vicious, and distinctly more anti-social in thought and deed than he was when he went in. His new-found propensities then have to be reckoned with. A substantial minority of persons who serve medium or long gaol sentences soon offend again.'
52The President then at paragraph 23 of Tokava went on to say:
'These passages set out a view held in 1975 of the likely effect of gaol. As I remarked in the course of argument, my impression is that almost everything which his Honour said is still appropriate 30 years later.'
53I refer also to the President's comments in R v Merrett & Ors [2007] VSCA 1, [49] where His Honour said:
'As I said in The Queen v Tiburcy, the sentencing Court looks to the future as well as to the past. There is a very great benefit to the community at large, as well as to the individuals themselves and their immediate families, if future criminal activity can be avoided. It is important that this Court, by its own sentencing decisions, recognise and reward efforts at rehabilitation, just as we should support trial judges who do so. It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders. The preoccupation with retribution which characterised much of the public comment on sentencing is understandable, but it focuses on only one part of what the sentencing Court does.'
Sentence of Mr Andrew Hourigan
54I made it very clear to Mr Farrington and to his client that in getting a community correction report I had made no decision. The report, has been tendered today as Exhibit H7 and is positive insofar as Andrew Hourigan is concerned. In the totality of circumstances, Mr Andrew Hourigan, I am going to accede to your counsel's submission and impose a combined sentence under s44 of both imprisonment and a community correction order.
55Given your crimes, that may be seen as merciful. However, it seems to me that given the childhood issue you have with your tumour, and its ongoing effect, it might be seen generally by the community, and hopefully by yourself, that the mercy given is somewhat of a balance given your misfortune as a child.
56Let me make it clear to you, however, there will not be any further mercy. If you return during the time of the community correction order that I am going to impose on you, and you come back having breached that community correction order, you can be assured that you will serve additional gaol.
57The community correction order that I will impose upon you is for a period of three years. The conditions will involve drug counselling, drug urine sampling, assistance with your mental issues and supervision. I stress one of the fundamental points of why the Government bought in these provisions was so that you do not commit further crimes. A major breach, would be if you committed during the period of that community correction order further crime. You would almost certainly, given the seriousness of these crimes, be put into gaol. The major consideration that I have struggled with is how long you should go to gaol for, and that is the period that should be imposed upon you given all of the matters set out in the plea, in particular the Worboyes considerations and the excellent steps taken as to your rehabilitation.
58As I said, this was for me a somewhat exquisite consideration. I have decided, however, to leave it at the 22 days that you have served by way of presentence detention. I think it is appropriate to pass an aggregate sentence of imprisonment in regard to all charges, such being, in my view, despite the submission otherwise by the prosecutor, consistent with the principles set out in DPP v Rivette [2017] VSCA 150. The community correction order pursuant to s44 is to be for three years.
59The imprisonment portion will be 22 days, hence at the end of these sentencing remarks you will be asked to enter into that community correction order and, having served the period of imprisonment imposed, you will be free to go; however, bearing in mind - and I repeat my warning - I do not want to see you back here in the next three years because if so, you bring your toothbrush. In regard to the disposal and forfeiture orders, I will make those as sought. I make the pecuniary penalty order as sought.
60Mr Andrew Hourigan, I am required to indicate to you the benefits of the plea of guilty that you have made to these seven offences. It is very difficult with Worboyes considerations, rehabilitation and your age forming such an important part of this sentence; however, doing as best I can, had you not pleaded guilty, a sentence that would have been imposed on you is not a period of gaol of 22 days and three years community correction order, but an aggregate sentence of two years' gaol. I think it is appropriate, Mr Farrington, if I ask you now if there is anything that does not make sense or that you want clarified.
61MR FARRINGTON: No, Your Honour, that all makes sense.
62HIS HONOUR: I come then to the plea put on behalf of Mr Christopher Hourigan by Mr Pearson.
63MS FARRAR: Sorry, Your Honour. I am sorry to interrupt Your Honour. For Mr Andrew - if Your Honour ‑ ‑ ‑
64HIS HONOUR: I am sorry. Yes, Madam Prosecutor. I do apologise.
65MS FARRAR: If Your Honour can declare the 22 days' presentence detention.
66HIS HONOUR: Yes, I apologise. I did that later, but I did not do it in here.
67MS FARRAR: Thank you.
68HIS HONOUR: Pursuant to s18 I declare the 22 days served as service of this sentence and that declaration is to be recorded in the records of this Court. The effect of that declaration will mean that once the community correction order has been signed by your client, Mr Farrington, he will be free to walk today.
69MR FARRINGTON: As the Court please.
70HIS HONOUR: Thank you, Madam Prosecutor.
Plea of Mr Christopher Hourigan
71I come then to the plea of Christopher Hourigan. Mr Pearson tendered as his written submissions as Exhibit C1 and spoke to them. Mr Pearson emphasised that albeit Mr Christopher Hourigan is 29, he still should be seen as within the description of young. He also relied upon the discount appropriate for a plea of guilty and, in particular, the additional factors that I have spoken about in regard to Worboyes.
72Equally, insofar as the rehabilitative steps taken, again they in fact, mirror the steps taken by Christopher’s brother. In particular, these are demonstrated by Exhibit C3 which was the counselling report of Carly Doyle dated 11 October 2021, Exhibit C4, the summary of the 37 drug test results and, in addition, Exhibit C2 which is a report of Carla Ferrari, dated 26 July 2021 to which I have also referred to. Equally, it is to be noted that these crimes were committed during periods of his own excessive use of drugs and the fact was that he was apparently growing cannabis and selling the drugs involved in each of the charges to service his own habit.
73Mr Pearson stressed that Christopher Hourigan comes before the Court with no prior offences at all, and with excellent character references being those detailed in Exhibit C5 and C6. While these accused, come before the Court in regard to separate matters, given the circumstances I accept Mr Pearson's submission that the offending, when one is considering parity, should be seen in regard to Mr Christopher Hourigan's criminality as of lesser order, and the fact of no priors whatsoever should also be taken into account.
74The proposition put by Mr Pearson insofar as Christopher Hourigan was that a community correction order should be passed, and again the prosecution agreed that a combined order with imprisonment was within the range. It was put to the Court, however, that the period of imprisonment was to be left to me, and pursuant to such submission, as I have said, Exhibit C7 was obtained which was a positive community correction report with a mental health advice attached to it.
75Again, it may well be seen as merciful, but you, Mr Christopher Hourigan, it seems to me, must be given the same opportunity as your brother for the reasons that I have just indicated, but I again want to say to you that not only do I see this as a merciful sentence, based upon your age, no priors, the particular circumstances of your plea, Worboyes, and the efforts made at rehabilitation, but it is mercy that you will not get again. You come back, during the period of two years that I am going to impose in this community correction order, having committed another crime, and as I said to your brother, you bring your toothbrush with you.
Sentence of Christopher Hourigan
76On all charges I will impose an aggregate gaol sentence of 30 days and a community correction order of two years. I will impose the same conditions as imposed on Andrew Hourigan.
77I make a declaration pursuant to s18 that the presentence detention of 30 days served in this matter be deemed as service of the sentence in this matter, and a record of such be recorded in the records of this Court. The disposal and forfeiture order will be signed by me.
78And I make a further declaration that pursuant to s6AAA had you not pleaded guilty, the sentence I would have imposed is not the combined sentence of 30 days' imprisonment and two-year community correction order, but an aggregate sentence of nine months' imprisonment.
79Both of those declarations under s6AAA will properly indicate to both of you where you are going if you come back in front of this Court. The fundamental point here is that on behalf of the community and in the interests of the community, as the President of the Court of Appeal has said, you are being given an opportunity, a merciful opportunity, to rehabilitate yourself now while you are young. But come back having breached that opportunity, and you will be well aware from the declaration I have made pursuant to s6AAA what is ahead of you.
80Mr Pearson, any matters that I need to attend to?
81MS FARRAR: Your Honour, just two matters if I may.
82MR PEARSON: Not for my part, Your Honour, but I ‑ ‑ ‑
83HIS HONOUR: Yes. Yes, Ms Farrar.
84MS FARRAR: Yes, Your Honour. For both Andrew and Christopher CCO with conviction.
85HIS HONOUR: Absolutely, yes.
86MS FARRAR: Yes, thank you. And perhaps either through their ‑ ‑ ‑
87HIS HONOUR: Well, a conviction is recorded on all matters and then the sentences pronounced.
88MS FARRAR: That is so. Yes, it is just that under s37 they all have to be indicated whether it is with or without. I just need to confirm,.
89HIS HONOUR: Yes. It is with.
90MS FARRAR: And finally - thank you, Your Honour. And finally, for each of them perhaps if they can orally indicate their consent to Your Honour's order of CCO.
91HIS HONOUR: Well, I do more than that. I think we can have them sign the orders. I do not know. In COVID-19 times I think they actually - I think - no, that is right. In the circumstances we will not have them sign them. Perhaps each of you counsel, if you would be good enough to seek instructions, do that. You might both make it very clear, if it is not by me, what will be the consequences if there is any further breach. Yes, we will do it pursuant to COVID-19 regime, that you - if you both indicate consent to the matters, we will indicate that and it will be sent out to your instructing solicitors or to yourself, Mr Pearson.
92MR PEARSON: Yes. On behalf of Andrew Hourigan, Your Honour, he consents to the order.
93HIS HONOUR: Thank you.
94MR FARRINGTON: And likewise, Chris Hourigan, Your Honour. He agrees. He consents to the order being made, and I will certainly speak with him afterwards.
95HIS HONOUR: Yes. I appreciate if both of you make it very clear if it was not clear by myself.
96MR FARRINGTON: Yes, I will make sure I reinforce that point, Your Honour.
97HIS HONOUR: I thank all counsel for what you might have appreciated was not a particularly easy sentence.
98MR FARRINGTON: Your Honour pleases.
99MR PEARSON: Court pleases.
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