Hourigan v The King
[2024] VSCA 30
•13 March 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0011 |
| CHISTOPHER HOURIGAN | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | BOYCE and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 February 2024 |
| DATE OF JUDGMENT: | 13 March 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 30 |
| JUDGMENT APPEALED FROM: | DPP v Hourigan (County Court of Victoria, McInerney J, 20 December 2023) |
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CRIMINAL LAW – Appeal – Sentence – Possession of a drug of dependence – Trafficking in a drug of dependence – Cultivation of narcotic plants – Dealing with property suspected of being proceeds of crime – Contravention of community correction order – Sentenced to five months’ imprisonment – Whether trial judge erred in finding no alternative to imprisonment – Whether sentence manifestly excessive – No material error in sentencing – Sentence not manifestly excessive – Leave to appeal refused.
Drugs, Poisons and Controlled Substances Act 1981, ss 71AC, 72B, 73; Crimes Act 1958, s 195; Sentencing Act 1991, s 83AD.
Nguyen v The Queen [2021] VSCA 346, considered; Boulton [2014] VSCA 342, discussed.
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| Counsel | |||
| Applicant: | Ms B East | ||
| Respondent: | Mr J O’Connor | ||
Solicitors | |||
| Applicant: | Sarah Tricarico Lawyers Pty Ltd | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BOYCE JA
T FORREST JA:
On 5 November 2021, the applicant was sentenced by a judge of the Country Court to an aggregate sentence of 30 days’ imprisonment (time served), together with a two-year Community Correction Order (‘CCO’) conditioned therapeutically with no hours of community work. This sentence was imposed in respect of possession of a drug of dependence (four charges), trafficking in a drug of dependence and cultivation of narcotic plants. A related summary matter of dealing with property suspected to be the proceeds of crime was also dealt with on that occasion. We shall refer to this as the ‘original offending’.
The applicant completed 20 months of his 24 month CCO, however disengaged with the Department of Justice after May 2023. On 7 October 2023, the applicant committed further offending — possession of cannabis, cocaine and dealing with property suspected of being proceeds of crime. He pleaded guilty and was sentenced the next day and placed on a 12 month CCO by the Magistrates’ Court with conditions of supervision and treatment.
The original CCO imposed on 5 November 2021 expired on 4 November 2023.
On 14 November 2023, the applicant was charged with contravening the original CCO due to his further offending on 7 October 2023.
On 14 December 2023, the applicant pleaded guilty to this charge in the County Court before the same judge who imposed the original CCO. He also fell to be resentenced on the original charges. The table below sets out the details of this exercise.
| Charge on Indictment | Offence | Max Penalty | Sentence |
| 7 | Possession of a drug of dependence[1] | 5 years’ imprisonment and/or 400 penalty units | Aggregate sentence of 5 months’ imprisonment |
| 8 | Trafficking in a drug of dependence[2] | 15 years’ imprisonment | |
| 9 | Possession of a drug of dependence | 5 years’ imprisonment and/or 400 penalty units | |
| 10 | Cultivation of narcotic plants[3] | 15 years’ imprisonment | |
| 11 | Possession of a drug of dependence | 5 years’ imprisonment and/or 400 penalty units | |
| 12 | Possession of a drug of dependence | 5 years’ imprisonment and/or 400 penalty units | |
| 16 (Summary Charge) | Dealing with property suspected of being proceeds of crime[4] | 2 years’ imprisonment | |
| 13 | Contravention of community correction order[5] | 3 months’ imprisonment | Convicted and charged |
| Total Effective Sentence: | 5 months’ imprisonment | ||
| Non-Parole Period: | Not applicable. | ||
| Pre-sentence Detention Declared: | 36 days | ||
| Section 6AAA Statement: | Total Effective Sentence 5 months | ||
| Other Relevant Orders: 1. Not applicable. | |||
[1]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.
[2]Contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981.
[3]Contrary to s 72B of the Drugs, Poisons and Controlled Substances Act 1981.
[4]Contrary to s 195 of the Crimes Act 1958.
[5]Contrary to s 83AD(1) of the Sentencing Act 1991.
The applicant seeks leave to appeal on the following grounds.
Ground 1
The learned sentencing judge erred in finding that that there was no alternative to imposing a term of imprisonment in sentencing the applicant.
Ground 2
The total effective sentence was manifestly excessive.
FACTUAL OVERVIEW
It is necessary to set out a summary of the original sentence. At the 2021 plea hearing, the prosecution tendered an Amended Prosecution Opening for Plea, which was adopted as an agreed statement of facts for the plea purposes. We shall reproduce it here (as it appears in the applicant’s Revised Written Case):
Namely, on 27 January 2021, as a result of police investigations into the applicant’s brother, police executed a search warrant at 23 Mulberry Crescent, Frankston North where the applicant resided. The applicant was located inside the address and arrested.
During the search of the address, police seized drugs of dependence and Schedule 4 poisons located at the residence. This included:
(a)68.6 grams (23% purity = 15.77 grams pure) of Methylamphetamine in a pencil case on [sic] the dining room and 0.8 grams (50% purity = 0.4 grams pure) of Methylamphetamine in a wallet on the kitchen bench (Charge 7—Possession of a drug of dependence);
(b)2, 328.7 grams of 1.4 Butanediol was located in the floor in a bedroom (Charge 8—Trafficking [in] a drug of dependence);
(c)35.4 grams (53% purity = 18.76 grams pure), 6.3 grams (43% purity = 2.71grams pure), and 1.3 grams (55% purity = 0.72 grams pure) of Cocaine was located inside a pencil case on the table in the dining room. 0.8 grams (52% purity = 0.42 grams pure) of Cocaine was located in a wallet on the kitchen bench. 0.8 grams (50% purity = 0.4 grams pure) and 3.2 grams (less than 1.9% purity = approximately 0.61 grams pure) of Cocaine was located inside a bedroom in a chest of drawers and a silver toolbox. 0.4 grams (62% purity = 0.25 grams pure), 1 gram (59% purity = 0.59 grams pure) and 1.5 grams (63% purity = 0.95 grams pure) of Cocaine was located in a third bedroom on top of a chest of drawers (Charge 9—Possession of a drug of dependence);
(d)Cannabis seedlings underneath a heat lamp in the rear shed (less than 0.1 gram) along with equipment, documents and tools related to the cultivation of narcotic plants. 20.8 grams of Cannabis was located on the table in the dining room. 1,381.2 grams of Cannabis was located in the first bedroom. 2,071 grams of Cannabis was located in the second bedroom. (Charge 10—Cultivat[ion] [of] narcotic plant[s]);
(e)0.8 grams (50% purity = 0.4 grams pure) and 0.4 grams of MDMA were located in the first bedroom (Charge 11—Possession of a drug of dependence);
(f)21.3 grams of Trenbolone was located on the kitchen bench, 29.5 grams of Testosterone was located in the kitchen and the first bedroom, 28.9 grams of Drostanolone was located on the kitchen bench, 4.4 grams of Nandrolone was located in a bedroom chest of drawers, 2.8 grams of Boldenone was located in a bedroom chest of drawers and 9.4 grams of Methandienone was located in a silver toolbox in the first bedroom (Charge 12—Possession of a drug of dependence).
Police also seized $3,260 cash from the residence which was suspected to be proceeds of crime (Summary Charge 16—Deal[ing] with property suspected of being proceeds of crime).
Original sentencing remarks
The judge briefly summarised the facts consistently with the agreed facts. The judge stated in relation to the applicant:
•The serious offending concerned Charges 8 and 10.
•The possession charges were related to the applicant’s own drug abuse.
•At 29 years of age, he was still relatively youthful.
•He was entitled to a ‘Worboyes’ enhancement to the utilitarian value of his pleas.
•He has no prior convictions and called in aid excellent character references.
•He had taken significant rehabilitative steps.
•The prosecution agreed that a combined order of CCO plus a term of imprisonment was within range. The defence contended for time served (30 days) with a CCO.
•A positive community correction report with mental health advice attached to it was relevant to the sentencing outcome.
•The ultimate sentence was ‘merciful’ but his Honour said:[6]
I again want to say that not only do I see this is a merciful sentence, based on 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’m going to impose in this community correction order, having committed another offence, and as I said to your brother,[7] you bring your toothbrush with you.
•Presentence detention of 30 days was declared. A s 6AAA declaration of nine months’ imprisonment was declared.
•His Honour then said:
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.[8]
[6]DPP v Hourigan [2021] VCC 1770, [75] (‘original reasons’).
[7]The applicant’s brother was sentenced at the same time for similar offending. They were not co-offenders.
[8]Original reasons, [79].
Resentence
The judge referred to and adopted his original sentencing remarks. He ‘incorporate[d] those remarks with his sentence’.[9] Additionally, the judge noted that the charges were related to the applicant’s drug use. The judge told the applicant that the original sentence was merciful and referred to the ‘toothbrush’[10] caution he had articulated two years earlier.
[9]DPP v Hourigan [2023] VCC, [2] (‘resentencing reasons’).
[10]Ibid [8].
The judge noted that the breaching offences occurred approximately four weeks from the end of the CCO period of supervision: ‘On 7 October last year, he was found with the proceeds of offending, … in possession of cocaine and a further drug of dependence’.[11]
[11]Ibid [9].
His Honour referred to the Contravention Report prepared by Corrections Victoria for the purposes of the plea and breach hearing. The judge stated that:[12]
He 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 p 5 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 [sic] 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.
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.
Mr 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.
In regard to the offence under s 83AD, that is the breach of the Community Correction Order, you will be convicted and discharged.
In regard to the determination to be made by way of resentencing under s 83AS, I take into account Mr Antos’s submission as to resentencing. I also take into account the particulars of s 83AS(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.
THIS APPEAL
[12]Ibid [10]–[14].
In attractive submissions at the hearing of this appeal counsel for the applicant contended as follows.
Proposed ground 1
•The judge seemed focussed on how much of the original CCO the applicant had not complied with, and not how much of that order he had complied with. This was said to be contrary to s 83AS(2) of the Sentencing Act 1991 (‘Act’).
•There was relatively limited non-compliance with the original CCO. When the order lapsed the applicant had achieved substantial compliance for 20 of the 24 months. He had completed drug treatment, mental health treatment and a drug screen.[13]
•The word ‘sporadic’ used in relation to compliance (used in the corrections report and picked up by the judge in the sentencing remarks) was inapt and a misleading descriptor of the level of compliance.
•The breach was for drug related offending but not for ‘exact same offending’ as stated by the judge.
[13]The only one required by Corrections Victoria.
Proposed ground 2
In addition to the matters canvassed in proposed ground 1, the applicant contended at the hearing that the sentence imposed was manifestly excessive because:
•It paid little attention or no attention to the principle of parsimony.[14]
•The breaching offending was sufficiently modest as demonstrated by the CCO imposed by the Magistrates’ Court on 8 December 2023.
•There were other sentencing options short of imposing an immediate term of imprisonment.
•The applicant remained a first offender for the original offending.
•The prosecution position taken before the judge on the resentencing hearing was that it was ‘open to the Court to confirm the original CCO noting the ongoing operation of the Magistrates’ Court CCO imposed on 5 October 2023…’.
[14]See Sentencing Act 1991, s 5(3).
The respondent in equally attractive submissions contended at the hearing as follows.
Proposed grounds 1 and 2
•The CCO imposed at first instance was not onerous and essentially therapeutic. It involved no community work component and one urine test over 20 months of compliance. Thus compliance with the original order, whilst worthy of some weight in the sentencing mix, was not of the same order as compliance which included, for example, many hours of completed community work.
•The use of the word ‘sporadic’ may have been inapt, as there was a complete gap in compliance between July and September 2023 rather than irregular or intermittent compliance over the course of the CCO, however it was still non-compliance over a significant period (and there were other lesser issues with compliance as well).
•The phrase ‘exact same offending’ used by the judge in the resentencing exercise was inaccurate, however it is clear from the transcript of the breach and plea proceedings, and the sentencing remarks, that his Honour was referring to the breach behaviour as ‘drug related’.
•The two grounds really coalesce into one ground and the answer to the question asked under both grounds is that it was reasonably open to the judge to impose a sentence of 5 months.
•Para [10] of the resentencing reasons[15] answers the assertion that his Honour failed to give credit to the extent of compliance as required by s 83AS(2) of the Act.
•The two more serious charges in the original offending, Charge 8 (trafficking in a drug of dependence) and Charge 10 (cultivation of narcotic plants), were in themselves quite serious examples of offences that each carry a maximum sentence of 15 years’ imprisonment.
•The original penalty of time served with therapeutic conditions was extremely merciful, as noted by the judge. The resentence of 5 months’ imprisonment is also lenient, notwithstanding the mitigating factors. This was quite serious offending.
•The breach was concerned with drug-related offending. Accordingly, the prospects of rehabilitation were diminished on the sentence and the need for specific deterrence was elevated.
[15]Reproduced in these reasons at [11].
Consideration
It is convenient to consider both proposed grounds 1 and 2 together.
We are unable to determine that there is any material specific error in the original sentencing remarks or in the resentence. True it is that the use of the word ‘sporadic’ in relation to the applicant’s compliance with the original CCO is an inappropriate descriptor of the applicant’s performance on that CCO. His performance was reasonably consistent over a period of twenty months, and then become non-existent over the last four months.
It is hard to be too critical of his Honour’s use of the word ‘sporadic’. It was, after all, used by the author of the corrections report to describe the extent of the applicant’s compliance.
We have reproduced para [10] of the resentence at para [11] of these reasons. We consider that when para [10] is read in context the judge complied with s 83AS(2) of the Act by considering the matters therein. To the extent that the judge referred to the extent of non-compliance (as compared to compliance) that is simply the other side of the same coin. We do not think that the judge mistook the task that he was to perform pursuant to s 83AS(2).
Whilst the phrase ‘exact same offending’ as a reference to the breach offending was technically inaccurate, we consider it to be a rhetorical judicial flourish only. His Honour was intending to convey, and did convey, that the breach offences (involving as they did possession of cannabis, cocaine and proceeds of crime) were similar in character to the original drug related offences.
In the circumstances we consider that it was well open to the judge to conclude that imprisonment was the only appropriate sentencing option.
It follows that we are not satisfied that the applicant has demonstrated that the sentence is manifestly excessive. An assertion of manifest excess is an assertion that the sentence imposed is wholly beyond the range of sentences open to the judge in the reasonable exercise of his or her sentencing discretion. The sentence must be sufficiently excessive that it bespeaks otherwise unidentifiable error. As we have indicated, our conclusion is that the aggregate sentence of 5 months’ imprisonment falls well short of this characterisation. This was serious offending. The applicant possessed over 2 kilograms of butanediol, nearly 3.5 kilograms of cannabis and smaller quantities of cocaine and methylamphetamine. Cannabis seedlings were growing under a heat lamp. The original sentence was merciful and the resentence, in our view, is still lenient. An examination of comparative sentences demonstrates this.[16]
[16]See, for example, Nguyen v The Queen [2021] VSCA 346.
Proposed grounds 1 and 2 must be rejected and leave to appeal in respect of them must be refused.
CONCLUSION
The application for leave to appeal against sentence must be refused.
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