Hourigan v The King - [2024] VSCA 30

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hourigan v The King

Details

AGLC: Hourigan v The King [2024] VSCA 30
Case: [2024] VSCA 30
Decision Date: 13 March 2024

CaseChat Overview and Summary

The appellant, Hourigan, appealed against his sentence for various drug-related offences, arguing that the trial judge had erred in finding no alternative to imprisonment and that the sentence was manifestly excessive. The matter was heard in the Supreme Court of Victoria. The respondent, The King, opposed the appeal, contending that the sentence was appropriate and that the trial judge had considered all relevant factors.

The primary legal issue before the court was whether the trial judge erred in finding no alternative to imprisonment. The appellant argued that the trial judge should have considered community-based orders or a suspended sentence, particularly given the appellant's age and his compliance with a previous community correction order. The court also considered whether the sentence was manifestly excessive, with the appellant contending that a lesser sentence would have been sufficient. The respondent argued that the sentence was appropriate, reflecting the seriousness of the offences and the need to deter the appellant and others from engaging in similar criminal conduct.

The court examined the trial judge's sentencing remarks and noted that the trial judge had considered the appellant's background, the nature and circumstances of the offences, and the need for general deterrence. The court found that the trial judge had not erred in determining that imprisonment was necessary, given the appellant's history of drug-related offending and his breach of a community correction order. The court also found that the sentence was not manifestly excessive, as it was within the range of sentences that could be imposed for the offences committed. The court considered relevant authorities and concluded that the trial judge's sentence was within the range of reasonable responses.

The appeal was dismissed, and leave to appeal to the Court of Appeal was refused. The court found that the trial judge had not made any material error in sentencing and that the sentence was not manifestly excessive. The appellant's sentence of five months’ imprisonment was affirmed.

Orders