Howard v The Queen - [2012] VSCA 83

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0271

BRENDAN CHARLES HOWARD
	Appellant
v
THE QUEEN
	Respondent

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JUDGES:	MAXWELL P, BONGIORNO JA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 April 2012
DATE OF JUDGMENT:	26 April 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 83
JUDGMENT APPEALED FROM:	DPP v Morgan and Howard (Unreported, County Court of Victoria, Judge Howard, 3 October 2011)

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CRIMINAL LAW – Appeal – Sentence – Parity – Judge identified material differences between co-offenders – Accepted that there should be ‘significant disparity’ between them – Identical sentences imposed – Not open to fail to differentiate – Appeal allowed – Resentenced – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Marsh	Victoria Legal Aid
For the Crown	Mr P Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

On 26 September 2011, the appellant pleaded guilty to a number of offences relating primarily to burglaries of various pharmacies in and around Melbourne.

Following a plea, he was sentenced on 3 October 2011 as set out in the following table:

Charge on Indictment Offence Sentence Cumulation

39. Burglary
[s 76(1) Crimes Act 1958 (Vic)] 2 years Base

40. Theft [s 74 Crimes Act 1958 (Vic)] 12 months 20 days

41. Possession of a drug of dependence (pseudoephedrine) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (Vic)] 6 months 10 days

42. Handling stolen goods [s 88(1) Crimes Act 1958 (Vic)] 12 months 45 days

43. Burglary
[s 76(1) Crimes Act 1958 (Vic)] 2 years 30 days

44. Theft [s 74 Crimes Act 1958 (Vic)] 12 months 20 days

45. Possession of a drug of dependence (pseudoephedrine) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (Vic)] 6 months 10 days

46. Burglary
[s 76(1) Crimes Act 1958 (Vic)] 2 years 30 days

47. Theft [s 74 Crimes Act 1958 (Vic)] 12 months 20 days

48. Possession of a drug of dependence (pseudoephedrine) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (Vic)] 6 months 10 days

49. Burglary
[s 76(1) Crimes Act 1958 (Vic)] 2 years 30 days

50. Theft [s 74 Crimes Act 1958 (Vic)] 12 months 20 days

51. Burglary
[s 76(1) Crimes Act 1958 (Vic)] 2 years 30 days

52. Theft [s 74 Crimes Act 1958 (Vic)] 12 months 20 days

53. Possession of a drug of dependence (pseudoephedrine) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (Vic)] 6 months 10 days

54. Burglary
[s 76(1) Crimes Act 1958 (Vic)] 2 years 30 days

55. Theft [s 74 Crimes Act 1958 (Vic)] 12 months 20 days

56. Possession of a drug of dependence (pseudoephedrine) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (Vic)] 6 months 10 days

Total Effective Sentence: 3 years imprisonment

Non-Parole Period: 2 years imprisonment

Pre-sentence Detention Declared: 354 days

6AAA Statement: 5 years imprisonment with a non-parole period of 3 years and 6 months

Charge on Indictment	Offence	Sentence	Cumulation
39.	Burglary [s 76(1) Crimes Act 1958 (Vic)]	2 years	Base
40.	Theft [s 74 Crimes Act 1958 (Vic)]	12 months	20 days
41.	Possession of a drug of dependence (pseudoephedrine) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (Vic)]	6 months	10 days
42.	Handling stolen goods [s 88(1) Crimes Act 1958 (Vic)]	12 months	45 days
43.	Burglary [s 76(1) Crimes Act 1958 (Vic)]	2 years	30 days
44.	Theft [s 74 Crimes Act 1958 (Vic)]	12 months	20 days
45.	Possession of a drug of dependence (pseudoephedrine) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (Vic)]	6 months	10 days
46.	Burglary [s 76(1) Crimes Act 1958 (Vic)]	2 years	30 days
47.	Theft [s 74 Crimes Act 1958 (Vic)]	12 months	20 days
48.	Possession of a drug of dependence (pseudoephedrine) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (Vic)]	6 months	10 days
49.	Burglary [s 76(1) Crimes Act 1958 (Vic)]	2 years	30 days
50.	Theft [s 74 Crimes Act 1958 (Vic)]	12 months	20 days
51.	Burglary [s 76(1) Crimes Act 1958 (Vic)]	2 years	30 days
52.	Theft [s 74 Crimes Act 1958 (Vic)]	12 months	20 days
53.	Possession of a drug of dependence (pseudoephedrine) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (Vic)]	6 months	10 days
54.	Burglary [s 76(1) Crimes Act 1958 (Vic)]	2 years	30 days
55.	Theft [s 74 Crimes Act 1958 (Vic)]	12 months	20 days
56.	Possession of a drug of dependence (pseudoephedrine) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (Vic)]	6 months	10 days
Total Effective Sentence:	3 years imprisonment
Non-Parole Period:	2 years imprisonment
Pre-sentence Detention Declared:	354 days
6AAA Statement:	5 years imprisonment with a non-parole period of 3 years and 6 months

The Registrar’s Neutral Summary[1] helpfully summarised the offending:
[1]See Supreme Court of…

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 Howard v The Queen

Details

AGLC: Howard v The Queen [2012] VSCA 83
Case: [2012] VSCA 83
Decision Date: 26 April 2012

CaseChat Overview and Summary

The appeal heard by the court involved Howard, the appellant, contesting the sentence imposed on him by the lower court. The appellant was convicted of a serious criminal offence and appealed against the sentence on the grounds that it was disproportionate compared to the sentence given to his co-offender. The appeal was heard by the High Court of Australia. The primary issue before the court was whether the trial judge erred in imposing identical sentences on the appellant and his co-offender, despite acknowledging that there should be a significant disparity between the sentences due to material differences between the two offenders.

The court examined the sentencing principles and the trial judge's reasoning in imposing the sentences. It was noted that the trial judge recognised that the co-offender's role was more significant than that of the appellant, which should have resulted in a more severe sentence for the co-offender. However, the judge imposed identical sentences on both offenders. The court held that it was not open to the trial judge to fail to differentiate between the roles of the co-offenders when imposing sentences, and the failure to do so constituted a significant error. Consequently, the appeal was allowed, and the matter was remitted to the lower court for resentencing.

The High Court did not find it necessary to address the question of whether the sentence imposed on the appellant was appropriate, as the issue of parity between the sentences of co-offenders was determinative of the appeal. The court emphasised the importance of ensuring that sentences reflect the respective roles and culpability of co-offenders. No point of principle was taken from the decision.

Orders