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…

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 Queen

Details

AGLC: Hourigan v The Queen [2006] NSWCCA 183
Case: [2006] NSWCCA 183
Decision Date: 5 June 2006

CaseChat Overview and Summary

The appellant in the case of Hourigan v The Queen appealed against both his conviction and sentence for supplying heroin on four separate occasions. The appellant was arrested as part of an investigation into the distribution of heroin in Newcastle and subsequently pleaded guilty to the charges. The appeal was heard in the absence of the appellant, who had informed the court that he would rely on written submissions.

The legal issues before the court were whether there was any reason to doubt the integrity of the appellant's pleas of guilty, and whether the sentences imposed were manifestly excessive. The court considered the evidence presented and the circumstances of the offences to determine whether the appellant's pleas were entered into voluntarily and whether the sentences were proportionate to the offences committed.

The court found that there was no reason to doubt the integrity of the appellant's pleas of guilty, as they were entered into following plea discussions between the appellant's counsel and the Crown. The court also found that the sentences imposed were not manifestly excessive, taking into account the principle of parity and the circumstances of the offences. The court therefore dismissed the appeal against conviction and sentence.

The final orders of the court were that the appeal against conviction and sentence be dismissed and that the original conviction and sentence stand. The court did not make any further orders in relation to the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ CLELLAN CJ CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ, CLELLAN CJ, CLELLAN CJ

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