Hourigan v The Queen - [2006] NSWCCA 183

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Hourigan v R [2006] NSWCCA 183

FILE NUMBER(S):
2006/16

HEARING DATE(S): 5 June 2006

DECISION DATE: 05/06/2006
EX TEMPORE DATE: 05/06/2006

PARTIES:
Shon Hourigan (Appellant)
Regina (Respondent)

JUDGMENT OF: McClellan CJ at CL Johnson J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0542

LOWER COURT JUDICIAL OFFICER: Acting Judge Andrew

COUNSEL:
No appearance of Appellant (written submissions only)
Ms J Dwyer (Respondent)

SOLICITORS:
SC Kavanagh (Respondent)

CATCHWORDS:
APPEAL - plea of guilty to supplying heroin (four counts) - appeal against conviction - no reason to doubt integrity of pleas of guilty - appeal against sentence - parity principle - sentences not manifestly excessive

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985
Criminal Appeal Act 1912

DECISION:
1. Appeal against conviction dismissed
2. Leave to appeal against sentence granted, but appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/16
McCLELLAN CJ at CL
JOHNSON J
LATHAM J
5 June 2006

SHON HOURIGAN v REGINA

Judgment

McCLELLAN CJ at CL: The Court is in a position to give judgment. Johnson J will give the first judgment.
JOHNSON J: On 19 October 2004, the Appellant, Shon Hourigan, pleaded guilty in the Sydney District Court to an indictment containing four counts of supplying a prohibited drug, heroin, contrary to s.25(1) Drug Misuse and Trafficking Act 1985. The sentencing proceedings came before Acting Judge Andrew who, on 22 April 2005, sentenced the Appellant to concurrent terms on each count of imprisonment for three years with a non-parole period of one year and nine months. The sentences commenced on 6 November 2004 and will expire on 5 November 2007. The non-parole period will expire on 5 August 2006.
On 28 December 2005, the Appellant lodged a notice seeking leave to appeal against sentence only. On 15 February 2006, the Appellant filed an Amended Notice of Appeal against conviction and sentence. The Appellant has not been represented for the purposes of this appeal. He has filed written submissions in support of the appeal. He informed the Registrar of the Court that he did not wish to be present at the hearing of the appeal and relied upon his written submissions. Accordingly, the hearing of the appeal has proceeded today in his absence.
Factual Background
Before moving to consider the grounds of appeal, it is appropriate to refer shortly to the circumstances of the offences under appeal and the proceedings against the Appellant in the District Court.
The Appellant was one of nine persons arrested during the course of Operation Whistlesea, an investigation in late 2002 into the distribution of heroin in the Newcastle area. The Appellant was committed for trial at the Newcastle Local Court on 17 March 2004. From an affidavit which has been read by the Crown on the appeal, it appears that the Appellant was legally represented between March 2004 and April 2005 by the same firm of solicitors or counsel instructed by that firm.
On 19 October 2004, he pleaded guilty to four counts of supplying heroin at Bolton Point on 15 October 2002, 16 October 2002, 9 November 2002 and 20 November 2002. It is clear from the material before this Court that the Appellant pleaded guilty to those counts following plea discussions between his counsel and the Crown. Prior to that time, the Appellant had been charged with ongoing supply of a prohibited drug contrary to s.25A Drug Misuse and Trafficking Act 1985. The Crown did not proceed with that charge. An agreed Statement of Facts signed by the Appellant’s counsel and the Crown Prosecutor was provided to the sentencing judge.
Three out of four of the offences were carried out with a co-offender, Tracey Strong, who was living in a de facto relationship with the Appellant and their seven-year old son at 5 Molokan Place, Bolton Point. On the four occasions in question, heroin was supplied to an undercover police officer and relevant conversations were captured by means of telephone interceptions or listening device recordings.
As a result of both face-to-face and telephone discussions between the Appellant, Ms Strong and the undercover officer, the officer attended the Appellant’s residence on the evening of 15 October 2002 and discussed with the Appellant and Ms Strong the purchase of two grams of heroin. The undercover officer handed over $900.00 in cash. Ms Strong left the premises and returned a little later with a plastic bag containing rock heroin which the Appellant divided into five pieces, two of which were supplied to the undercover officer. The drug obtained comprised a total of 1.91 grams of heroin with a purity of 26.5% (Count 1).
The next day, 16 October 2002, the undercover officer had further telephone conversations with the Appellant during which he informed the officer to contact Ms Strong to discuss a further purchase. The officer attended 5 Molokan Place, Bolton Point and gave $900.00 in cash to Ms Strong. Ms Strong left the premises and met the Appellant and they both travelled to the premises of another offender, Jason Deron, at Warners Bay. Thereafter, the Appellant and Ms Strong returned to Bolton Point and the Appellant used a set of electronic scales to weigh the rock heroin and supplied the undercover officer with a plastic bag containing a piece of the rock. The plastic bag contained 1.93 grams of heroin (Count 2).
On 9 November 2002, the undercover officer again telephoned the Appellant. Later that day, the undercover officer drove to the Appellant’s residence and picked up him and his seven-year old son. The drove to Mr Deron’s premises at Warners Bay. The undercover officer gave $2,800.00 in cash to the Appellant. The Appellant met with Mr Deron and another offender, Raymond Russell. A short time later, the Appellant returned to the undercover officer’s car and gave her a plastic bag containing a white rock. The undercover officer drove the Appellant and his son home and then departed the premises. The drug supplied on this occasion comprised 6.2 grams of heroin at 25% purity (Count 3).
Between 9 and 20 November 2002, there were a number of telephone conversations between the undercover officer, Ms Strong and the Appellant. During these conversations, the undercover officer made arrangements to buy a further seven grams and both the Appellant and Ms Strong participated in the arrangements. On the afternoon of 20 November 2002, the undercover officer went to the Appellant’s residence and met him and Ms Strong. After some initial discussion between the undercover officer and the Appellant, the officer left the house with Ms Strong and drove her to Warners Bay. The undercover officer gave Ms Strong the sum of $2,800.00 in cash. Thereafter, Ms Strong left the undercover officer to meet Mr Deron in his vehicle. Ms Strong returned to the undercover officer’s car and they travelled back to Bolton Point where Ms Strong gave the heroin to the undercover officer. In a conversation recorded by listening device, the Appellant and the undercover officer discussed the transaction. It is clear from the recorded conversation that the Appellant had checked the weight of the package supplied on this occasion to the undercover officer because he was aware that the amount supplied to Ms Strong slightly exceeded the required amount. The drug supplied to the undercover officer on this occasion comprised a total of 6.21 grams of heroin at 28% purity (Count 4).
Appeal Against Conviction
The Appellant advances a single ground of appeal against conviction in the following terms:
“There was only one supply made on the 9th November 2002.”
In support of this ground, the Appellant made the following written submissions:
“1.Due to the lack of legal representation I was advised on the 19 October 2004 to plead guilty to four counts of supply prohibited drug namely heroin.
2.The only supply I committed on the 9th November 2002 at Warners Bay quantity 6.2 grams and its noteworthy that I do not have any prohibitions for supply prohibited drugs.”
In answer to the appeal against conviction, the Crown points to the fact that the Appellant pleaded guilty to four counts contained in this indictment and did so with the benefit of representation by experienced criminal trial counsel. The Crown submits that the objective evidence refutes the Appellant’s suggestion that there was any lack of representation at the time of his pleas of guilty. The Crown submits that there was ample evidence implicating the Appellant in each of the four counts of supply having regard to his direct involvement in the joint enterprise which constituted those supplies and the extended meaning of the term “supply” in s.3 Drug Misuse and Trafficking Act 1985. Further, the pleas of guilty of the Appellant constituted admissions of the essential ingredients of the four offences charged.
The principles applicable where an appeal is brought from a conviction entered as a consequence of a plea of guilty are well known. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding provided the plea is entered in the exercise of a free choice in the interests of the person entering the plea: Meissner v The Queen (1995) 184 CLR 132 at 141. There is no material before this Court to demonstrate that the Appellant did not appreciate the nature of the charge to which the plea was entered, that the plea was not a free and voluntary confession, that the plea was not really attributable to a genuine consciousness of guilt, that there was a mistake or other circumstances affecting the integrity of the plea as an admission of guilt, that the plea was induced by threats or other impropriety, that the plea was not made in circumstances suggesting that it was a true admission of guilt or that, at the time the plea was entered, the Appellant was not in possession of all the facts and did not entertain a genuine consciousness of guilt: R v Van (2002) 129 A Crim R 229 at 238-239 (paragraphs 48-50).
To the contrary, the Appellant was represented by experienced counsel who apparently negotiated an advantageous plea agreement whereby the s.25A charge was withdrawn. The Appellant’s counsel signed by way of agreement a Statement of Facts upon which the pleas were based. The facts alleged against the Appellant supported each of the four counts of supply to which he pleaded guilty. I see no reason to doubt the integrity of his pleas. I would reject the appeal against conviction.
Appeal Against Sentence
The Agreed Statement of Facts placed before Acting Judge Andrew set out the hierarchy of persons involved in these drug supply offences. Between 9 October and 20 December 2002, Mr Russell and Mr Deron were actively involved in organising and distributing heroin in the Newcastle area. The scope of this involvement included obtaining amounts of heroin for on-supply to lower-level dealers. The Appellant was identified by police as a lower-level dealer along with his co-offender, Ms Strong and other offenders being Mr Graham, Kristina Maloney and James Conway.
Acting Judge Andrew accepted the characterisation of the Appellant as a lower-level dealer. His Honour concluded that the offences were objectively serious and that the Appellant was part of an organisation involved in the distribution of heroin in the Lake Macquarie and Newcastle area. The seriousness of the crimes were aggravated as they were part of organised criminal activity.
The Applicant was 37-years old at the time of the offences. His criminal record included three offences for possession or use of prohibited drugs (in 1984, 1988 and 1989) but no prior convictions for supplying prohibited drugs. He had been sentenced to imprisonment for crimes of violence on three occasions prior to 2002.
A pre-sentence report described the Appellant’s upbringing as supportive and unremarkable. He has had a significant heroin addiction for some years prior to these offences.
Acting Judge Andrew allowed a 25% discount for the pleas of guilty and accepted that there were prospects of rehabilitation of the Appellant.
Acting Judge Andrew was informed of sentences which had been imposed upon the offenders Mr Russell and Mr Graham. Following pleas of guilty, Mr Russell was sentenced by his Honour Judge Puckeridge QC on 25 November 2004 to imprisonment for three years and six months with a non-parole period of two years and four months for supplying a prohibited drug, heroin, between 10 October and 19 December 2002. On the same day, Mr Graham was sentenced to imprisonment for three years with a non-parole period of one year and nine months following his plea of guilty to the same charge as Mr Russell.
Acting Judge Andrew considered points of similarity and difference between the Appellant and Mr Graham. His Honour concluded that, in all the circumstances, the same sentence ought be passed upon the Appellant as was imposed upon Mr Graham. Accordingly, his Honour imposed concurrent sentences on each count comprising a non-parole period of 21 months with a balance of term of 15 months. Allowing for a period of pre-sentence custody, his Honour directed that the sentence commence on 6 November 2004. The Appellant will be eligible for parole on 5 August 2006. His Honour found special circumstances by reason of the Appellant’s prospects of rehabilitation.
The Parity Ground
The Appellant submitted that the difference in the penalties imposed upon the various offenders gives rise to a justifiable sense of grievance on his part.
The Appellant submitted, wrongly, that of the nine persons arrested as a result of Operation Whistlesea, he alone was ordered to serve his sentences cumulatively. It is the fact that the Appellant’s sentences were entirely concurrent.
As might be expected, the sentences imposed upon the nine offenders differ in various ways. Reference has already been made to sentences imposed upon Mr Graham and Mr Russell. The Crown has set out helpfully in a table annexed to written submissions a schedule setting the sentences imposed upon the various offenders and points of similarity and difference in the objective and subjective circumstances in each case. Of the so-called lower-level dealers, Mr Conway and Ms Maloney were sentenced on 22 April 2005 by Acting Judge Andrew at the same time as the Appellant. Mr Conway was sentenced to imprisonment for three years with a non-parole period of two years. Ms Maloney was sentenced to imprisonment for 18 months with a non-parole period of nine months. Ms Maloney was the de facto partner of Mr Conway and she had been drug-free for 23 months and had made significant progress by way of rehabilitation. Ms Strong was sentenced on 24 February 2006 by his Honour Judge Goldring. She was sentenced to imprisonment for three years with a non-parole period of two years with the sentence to be served by way of periodic detention. His Honour Judge Goldring referred to points of distinction between Ms Strong and the Appellant leading to a conclusion that a less onerous sentence ought be imposed upon her than the other offenders, including the Appellant. His Honour took the view that the Ms Strong’s case was exceptional. She was being sentenced following a lengthy “Griffiths” remand.
The Appellant’s submission concerning this ground comprises the bare assertion that he has a justifiable sense of grievance because of the difference in sentences imposed upon the various offenders. The Crown submits that an examination of the sentences imposed upon the various offenders and the reasons for differences in those sentences, leads to the conclusion that no justifiable sense of grievance can be entertained by the Appellant.
The parity principle is capable of application in favour of the first of two or more co-offenders who were sentenced at different times: Jones v The Queen (1993) 67 ALJR 376 at 377. Accordingly, it is open to the Appellant to seek to invoke the parity principle although he was sentenced before his co-offender, Ms Strong. The parity principle is not to be applied when a ground of appeal invites comparison between sentences imposed upon two or more offenders who are not co-offenders, simply because the various offenders may have committed similar crimes: R v Araya (2005) 155 A Crim R 555 at 566-568. Although the Appellant, Ms Strong, Mr Graham, Ms Maloney and Mr Conway were all described as lower-level dealers, they were not, in reality, all co-offenders. Ms Strong and the Appellant were co-offenders in the same criminal enterprise. Mr Graham, Ms Maloney and Mr Conway were involved in a separate wing of the heroin distribution hierarchy which operated independently of the Appellant and Ms Strong. The principles applicable where this ground is raised are not in doubt and were summarised in R v Kelly (2005) 155 A Crim R 499 at 592 (paragraphs 11-12). Where an unjustifiable discrepancy in sentencing is said to exist, it is necessary to consider whether a particular sense of grievance or injustice is a legitimate one. The test for determining the legitimacy of a sense of grievance is objective, not subjective. What has to be demonstrated is that a reasonable mind looking over all that has happened would see that the offender’s grievance is justified. However, even if there is a degree of disparity so as to invite a reduction in the sentence imposed, it is not necessary for this Court to intervene if the result of doing so would produce a sentence disproportionate to the objective and subjective circumstances.
I am not satisfied, in the circumstances of this case, that an objective foundation exists for a legitimate sense of grievance on the Appellant’s part. Even if it was permissible, an examination of the different sentences imposed in the different circumstances of the various offenders does not give rise to such an objective foundation. Ms Strong had not been sentenced at the time when the Appellant was sentenced. The sentencing judge’s choice of Mr Graham as a point of comparison was not technically apt as Mr Graham was not a co-offender. However, submissions had been made to his Honour by reference to the sentences passed on other offenders and his Honour took up the issues arising from submissions in having regard to the sentence passed on Mr Graham in determining an appropriate sentence for the Applicant.
The co-offender, Ms Strong, was sentenced to imprisonment for four years with a non-parole period of two years to be served by way of periodic detention. There were points of distinction between her case and the Appellant’s case with Goldring DCJ describing her case as exceptional.
Even if disparity had been demonstrated in the relevant sense, I am not satisfied that the Court would intervene in any event. In my view, any reduction in the sentence imposed upon the Appellant for these offences would produce a result that was disproportionate to the objective seriousness of the criminality involved.
There is a further aspect to which reference should be made. On 2 May 2005, some 10 days after being sentenced for the present offences, the Applicant was sentenced in the Newcastle Local Court for an offence of assault and was sentenced to imprisonment for a term of three months to date from 2 May 2005. Given the Appellant’s history of imprisonment on three occasions for offences of violence, this sentence has worked to the Appellant’s advantage. This three months’ sentence is entirely concurrent with the sentence for the drug supply offences. Given that the parity principle allows a broad examination of factors relevant to the existence of a justifiable sense of grievance, it seems to me that this factor fortifies a conclusion that no legitimate sense of grievance is objectively demonstrated in this case.

I would reject this ground of appeal.
The Pearce Ground
The Appellant contends that Acting Judge Andrew erred by not giving discrete consideration to the appropriate sentence for each offence in accordance with the principles in Pearce v The Queen (1998) 194 CLR 610. In his written submissions, the Appellant argues that the same sentence was imposed in relation to each of the four offences despite there being some differences in criminality and the various quantities involved in each supply offence.
The Crown submits that the sentencing judge regarded each of the offences as part of a continuing bout of criminality and that, for this reason, each of the sentences was made wholly concurrent. It was submitted that this approach was advantageous to the Appellant.
The Pearce principle is clear. A judge sentencing an offender for more than one offence must affix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as the question of totality: Pearce v The Queen at 624. However, there is a level of flexibility in sentencing in accordance with the Pearce principle: Johnson v The Queen (2004) 78 ALJR 616 at [26]; Markarian v The Queen (2005) 79 ALJR 1048 at [27]. The sentencing judge did not specifically refer to questions of concurrence, accumulation and totality. Although it would have been preferable to advert expressly to these questions, the appropriate conclusion is that his Honour treated the four offences as being part of the same course of conduct which ought be visited by a single concurrent sentence in each case.
I agree with the Crown submission that application of the Pearce principle would likely have operated adversely to the Appellant in this case. In the result, he received four entirely concurrent sentences for objectively serious offences of supplying heroin. I am not satisfied that any basis has been demonstrated for the Court to intervene in this case. No lesser sentence is warranted and should have been passed: s.6(3) Criminal Appeal Act 1912.
The Manifestly Excessive Ground
The Appellant submits that the sentence imposed upon him was manifestly excessive. It will be apparent from observations which I have already made that I would reject this ground of appeal. The Appellant was involved in organised criminal activity in the distribution of heroin. Although he was a heroin user himself, he benefited from this supply. These were objectively serious crimes. I am not satisfied that the sentences imposed upon the Appellant lay outside the appropriate range of sentence for these offences and this offender. In any event, no lesser sentence is warranted and should have been passed: s.6(3) Criminal Appeal Act 1912.
I propose the following orders:
(a)appeal against conviction dismissed;
(b)leave to appeal against sentence is granted, but the appeal is dismissed.
McCLELLAN CJ at CL: I agree with Johnson J.
LATHAM J: I also agree.
McCLELLAN CJ at CL: The orders of the Court are the orders proposed by Johnson J.

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LAST UPDATED: 14/06/2006