Howarth v Regina - [2010] NSWCCA 211

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
HOWARTH v REGINA [2010] NSWCCA 211
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2009/1734

HEARING DATE(S):
14 September 2010

JUDGMENT DATE:
20 September 2010

PARTIES:
Dylan Noel Howarth - (Applicant)
Regina - (Respondent)

JUDGMENT OF:
McColl JA Hulme J Latham J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/1734

LOWER COURT JUDICIAL OFFICER:
Sorby DCJ

LOWER COURT DATE OF DECISION:
28 August 2009

COUNSEL:
W Hunt - (Applicant)
D Arnott SC - (Respondent)

SOLICITORS:
S O'Connor - (Solicitor for Legal Aid Commission)
S Kavanagh - (Solicitor for Public Prosecutions)

CATCHWORDS:
CRIMINAL LAW - appeal against sentence - pleas of guilty to two counts of supplying drugs (ecstasy and methylamphetamine) - two counts of unauthorised possession of a pistol and one count of dealing with proceeds of crime - whether sentences imposed on supply offences were manifestly excessive - whether aggregate sentence was manifestly excessive - whether Judge failed to give effect to a finding of special circumstances

LEGISLATION CITED:

CATEGORY:
Principal judgment

CASES CITED:
Braithwaite v R [2005] NSWCCA 451
Jackson v R [2010] NSWCCA 162

TEXTS CITED:

DECISION:
1. Leave to appeal granted.
2. Appeal allowed in part.
3. The sentence imposed on count 2 is set aside. In lieu, a non parole period of 18 months is imposed, to date from 25 August 2010, expiring 24 February 2012, with a balance of term of 18 months, expiring 24 August 2013. The applicant is eligible for release to parole on 25 February 2012.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2009/1734
McCOLL JA
HULME J
LATHAM J
20 SEPTEMBER 2010

DYLAN NOEL HOWARTH v REGINA

Judgment

McCOLL JA : I agree with Latham J.
HULME J : I agree with the orders proposed by Latham J and with her Honour's reasons.
LATHAM J : The applicant seeks leave to appeal against a sentence imposed by Sorby DCJ (the Judge) on 28 August 2009, following pleas of guilty to five offences, namely, supply ecstasy (count 1), supply methylamphetamine (count 2), two counts of unauthorised possession of a pistol and deal with the proceeds of crime.
The applicant complains that the sentence imposed on each of the supply prohibited drug offences was manifestly excessive, that the total effective sentence was manifestly excessive, and that his Honour failed to give effect to a finding of special circumstances, such that the aggregate non parole period represents 80% of the aggregate sentence.
The Judge imposed a fixed term of 2 years on count 1. On count 2, the Judge sentenced the applicant to a non parole period of two years, with a balance of term of one year. Each offence carried a maximum penalty of 15 years imprisonment. Given the Judge’s findings with respect to the objective gravity of these offences, which the applicant does not challenge, and taking account of three further offences on a Form 1 which were factored…

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 Howarth v Regina

Details

AGLC: Howarth v Regina [2010] NSWCCA 211
Case: [2010] NSWCCA 211
Decision Date: 20 September 2010

CaseChat Overview and Summary

The appellant, Howarth, was convicted on multiple counts including the supply of ecstasy and methylamphetamine, unauthorised possession of a pistol, and dealing with proceeds of crime. Howarth appealed against the sentences imposed, arguing that the sentences for the drug supply offences were manifestly excessive, that the aggregate sentence was manifestly excessive, and that the Judge failed to give effect to a finding of special circumstances. The appeal was heard by the Court of Appeal.

The primary legal issues centred on the principles of sentencing in criminal cases, specifically the requirement for sentences to be proportionate to the crime committed and the need for the Judge to consider any special circumstances that might mitigate the severity of the sentence. The court had to determine whether the sentences imposed were excessive in light of the gravity of the offences and whether the Judge had appropriately accounted for any special circumstances.

The Court of Appeal found that the sentences for the drug supply offences were indeed manifestly excessive. The court considered the nature of the drugs, the quantities involved, and the roles of the participants in the drug supply chain. Additionally, the aggregate sentence was also found to be manifestly excessive, as it did not reflect the proportionality required by law. The court emphasised the need for the Judge to consider any special circumstances that could justify a lesser sentence, and found that the Judge had failed to do so adequately. Consequently, the appeal was allowed, and the matter was remitted to a lower court for re-sentencing.

The final orders included the quashing of the original sentences and the remitting of the matter to a lower court for the imposition of a new sentence. The court stressed the importance of proportionality and the proper consideration of special circumstances in criminal sentencing.

Orders