Howlett v Tasmania
[2009] TASSC 105
•7 December 2009
[2009] TASSC 105
COURT:SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Howlett v Tasmania [2009] TASSC 105
PARTIES: HOWLETT, Shaune Henry
v
TASMANIA (STATE OF)
FILE NO/S: 522/2009
DELIVERED ON: 7 December 2009
DELIVERED AT: Hobart
HEARING DATE: 11 November 2009
JUDGMENT OF: Crawford CJ, Tennent and Wood JJ
CATCHWORDS:
Criminal Law − Appeal and new trial − Appeal against sentence − Grounds for interference − Sentence manifestly excessive or inadequate − Whether sentence of 15 months' imprisonment for assault manifestly excessive.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: G A Richardson
Respondent: J Hartnett
Solicitors:
Appellant: G A Richardson
Respondent: Director of Public Prosecutions
Judgment Number: [2009] TASSC 105
Number of paragraphs: 33
Serial No 105/2009
File No 522/2009
SHAUNE HENRY HOWLETT v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD CJ
TENNENT J
WOOD J
7 December 2009
Order of the Court
Appeal dismissed.
Serial No 105/2009
File No 522/2009
SHAUNE HENRY HOWLETT v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD CJ
7 December 2009
The appellant pleaded guilty to two counts of assault and was sentenced to imprisonment for 15 months with no eligibility for parole until he has served half the sentence. He appealed against the sentence on the ground of manifest excessiveness.
The circumstances of the offence
On the afternoon of 13 December 2008, he visited Risdon Prison with members of his family. The victim of the assaults, to whom I will refer as the complainant, was also visiting the prison with two male associates.
The appellant finished his visit and returned to the car park outside the prison's reception centre, where he waited for other members of his party to return before leaving in a motor vehicle.
A female member of his party came up and spoke to him. According to prosecuting counsel, she had just made a comment to one of three men in the prison reception area that had caused prison staff to concentrate CCTV on what happened next. The comment was to the effect: "Go and say that to Shaune, you mouthy little shit." The complainant was one of the three men, but the woman's comment was made to one of the other two, not him. According to defence counsel, one of those two men had made a disparaging comment to the woman about the appellant that "related to the fact that he was weak and about his physical attributes". It is common ground that the appellant is not a weak man, but very well built.
The appellant decided to confront the man he had been told had spoken. He went up to the three men.
The complainant declined to speak to police about the incident and subsequently took the side of the appellant, expressing a wish that he not be charged. In a statement he provided to the appellant's legal practitioner, he said that words were exchanged between one of his companions and the appellant and that he stepped between the two and put his hands up to prevent the appellant coming forward. However, according to defence counsel, the complainant had his hands up in such a way that the appellant interpreted his actions as looking for a fight.
There was then an exchange of punches between the appellant and the complainant. It was at about that point that a security camera recorded what happened. Blows were swung by the two men. Some of them missed. However, four punches from the appellant connected with the complainant's head, causing him to fall down into some bushes. While he was down, the appellant kicked him in the head three times with his right boot.
The first count of assault relates to those three kicks. Because of the unresolved question concerning whether what had happened before then was a consensual fight, the sentencing judge disregarded the punches as being part of the assaults for which the appellant was to be sentenced.
The appellant left the complainant on the ground and appeared to chase off the two younger men. He then returned to the complainant, who was lying helpless on the ground, and kicked him in the head again with his right boot. As prosecuting counsel said, the kick was delivered with force. It caused the complainant's head to snap back. The second count of assault relates to that kick.
The appellant then walked to his vehicle and left the area with associates. At the time of the incident a number of members of the public were nearby.
The complainant was dazed for a short time, but he was not seriously injured. Persons went to his assistance. A witness said that his mouth was bleeding and he was spitting blood from it and wiping the blood away with the back of his hand. The witness noticed a boot impression on his head. Counsel for the appellant asserted that the CCTV footage showed that he was bleeding from his nose and it was that blood being wiped away by him. In the footage, the complainant seemingly recovered after a few minutes and made his way to a vehicle. Subsequently, he drove away.
Police attempted to interview the appellant four days later, but he declined to make any comment. He was shown the CCTV footage. Two months later he was recorded saying to his brother on a telephone that he intended to plead guilty because there was nothing that could be done, he had watched the footage and it could not get any clearer. It is plain that by his pleas of guilty he was bowing to the inevitable.
In the statement the complainant gave to the appellant's legal practitioner, he said that he had known the appellant for five years; that they had been friends during that time, but not close friends; that there had never been any problem between them in the past; that the appellant had apologised to him for what happened; that he did not want the appellant prosecuted for the matter; that he considered it to be a personal matter; that there had been no further problems between them; that he suffered minor bruising and bleeding from his mouth or nose as a result of the incident and did not seek medical treatment; and that he had not been the subject of any threat, promise or inducement to make the statement.
The circumstances of the offender
The appellant was 25 years old at the time of the crimes and 26 when sentenced. He had a significant record for violence.
On 30 January 2000, when he was 16 years old, he committed the crime of causing grievous bodily harm, two assaults and destruction of property. He was dealt with by the Youth Justice Division of the Magistrates Court on 27 November 2000. There was an altercation at a party involving a female. He was not in attendance. The female said words to the effect, "you wait till Shaune finds out – I'm going to get Lee and you're going to all die". Lee was a co-offender with the appellant in relation to what followed. About an hour later, the appellant went with others to the house where the altercation had occurred. The door was opened by a female. She was punched in the face and the appellant entered with the others. The group of intruders punched a man in the head, knocked him to the ground and then proceeded with a series of kicks and stomps to his head, leaving him unconscious and in a critical condition. Another female was punched and kicked and possibly hit with a piece of furniture. Damage was done to the house. The appellant was sentenced to sixteen months' detention for causing grievous bodily harm, nine months' detention respectively for each of the assaults and a community service order for the destruction of property. All of the detention was suspended on condition that he commit no offence punishable by imprisonment for two years. A probation order was also made.
On 1 September 2000, while on bail awaiting the hearing of those charges, he again committed the crime of causing grievous bodily harm. He was 17 years of age. He was found guilty following a trial in the criminal court. In the company of others, he went to a man's flat. An argument developed. A co-offender smashed the window of a neighbouring flat for no reason. Shortly after, the appellant attacked the man. He was knocked to the ground. The appellant kicked and punched him about the head mercilessly. A co-offender joined in. They both stomped on the man's head as he lay unconscious, or nearly unconscious. No question of justification arose. The victim suffered serious injury. He spent five days in hospital. His eyes were bruised and bleeding. He had metal plates inserted in his fractured jaw. There was some loss of sensation due to damaged nerves and there were also other physical as well as psychological sequelae. The sentencing judge described it as a bad case of blind rage, fuelled by an over-consumption of alcohol, leading to wanton and mindless violence, presumably to satisfy some lust for brutality. The appellant was the instigator of the violence and delivered a blow from behind which set the scene. The sentencing judge found that he intended to inflict grievous bodily harm. On 3 December 2001, he was sentenced to imprisonment for 12 months.
On 18 February 2002, he instigated an assault. He was then 18 years old. While in prison he and his brother spoke by telephone to the principal offender, exhorting him to use violence against two others. The appellant said that he wanted them "smashed" and he urged the use of baseball bats. The appellant's brother urged instead that the principal offender shoot the men, which was something he decided to do. Wearing a balaclava and armed with a shotgun, he found the intended victims with three other men. He brandished the shotgun and shouted that he was going to shoot them, but they ran away. On 13 August 2002, the appellant was sentenced to imprisonment for four months.
On 13 November 2005, he committed an assault. He was 22 years old. The learned judge was told nothing of the facts, other than it involved punching a person in the head. On 14 December 2006 he was sentenced to imprisonment for one month, wholly suspended on condition that for two years he be of good behaviour and not commit any offences of assault or physical violence against another person. He breached that condition when he committed these crimes on 13 December 2008.
His record included offences under the Road Safety (Alcohol and Drugs) Act 1970 committed on four different dates. Some of the sentences for them included imprisonment. His record also included possessing a controlled drug in 2003 and possessing and selling a controlled drug in 2005. For those last offences he was sentenced to two months' imprisonment, wholly suspended for 12 months on a condition that included good behaviour.
His counsel submitted that his rate of offending violently had decreased significantly since 2002, with only two offences of violence since then. The sentencing judge accepted that. However, it is not mitigatory that an offender with a bad record for violence offends violently only once every three years.
His counsel said that he was 26 years old and employed as a scaffolder. He also ran a gymnasium in partnership with his brother. He had a de facto wife. They had a child and were expecting another. Two other children of his partner lived with them. A reference from his employer of six months said that he was a valuable employee.
His counsel also tendered a document entitled "Court Report", which in some respects was a reference, but in others was opinion and argument, from a man who described himself as a drug and alcohol counsellor. He said that he had a long history in the drug sub-culture. He asserted that the appellant was raised as a member of an alcoholic and a violent family and was led into bad behaviour by his older brother. He abused alcohol and was subject to violent outbursts. The referee claimed that over the last three years he had changed markedly, in that he was drinking less, in employment and training each day at a gymnasium. He and his de facto partner owned their own home, subject to a mortgage.
That "Court Report" was criticised by prosecuting counsel who submitted that it should be given little or no weight. Insofar as it contained opinions and submissions relating to sentence, I agree. Prosecuting counsel tendered to the learned judge the record of offending of the author of the report, which included convictions for trafficking, imposition, forgery and uttering. The learned judge made no direct mention of the report when passing sentence.
The learned judge accepted that the appellant was well regarded by people with whom he worked, people who knew him through sporting activities and people associated with charitable organisations supported by the gymnasium business. His Honour referred to him as a family man with a stable domestic relationship.
Discussion
His Honour correctly regarded as an aggravating factor that the crimes were committed in breach of the conditions of a suspended sentence. He thought that he should give very little weight to the fact that the complainant did not want the appellant prosecuted or punished. His Honour regarded kicking someone to the head as something likely to cause very serious injuries and thought that both the appellant and the complainant were very lucky that no serious harm was done on this occasion. The learned judge made the point that if serious assaults went unreported, there would be nothing to deter violent people from further acts of violence or from more serious acts of violence. He regarded the appellant's attacks on the complainant as vicious and merciless and concluded that there was a need to impose a sentence of both personal and general deterrence. He said that he would impose the shortest possible non-parole period having regard to the appellant's plea of guilty, his apology to the complainant and the various positives aspects of his life.
It is explained by Professor Warner in Sentencing in Tasmania 2nd ed at 89, that it has long been the practice for courts to punish repeat offenders more severely than those who have not been previously convicted, this being justified on grounds of retribution, deterrence and protection of society. Nevertheless, the common law imposes limits on the extent to which this can be done. Overriding principles are that a sentence must be proportionate to the gravity of the offence and that a person must not be punished again for a past offence.
Counsel for the appellant argued that, and urged the Court to find that there were material mitigating factors and an absence of a number of aggravating factors that are common to assaults. He referred to the assaults not being an attack on a stranger; no weapons were used; the injuries were not serious; the complainant did not want the appellant charged or punished; the appellant had a good work record and family responsibilities; and he had made a contribution to his community.
His counsel referred the Court to comments on passing sentence in a number of cases involving kicking. I have considered them and comments in many other assault cases. They lead me to the conclusion that 15 months' imprisonment for assault is by no means at the top of the appropriate range for the crime, but the appellant's sentence was relatively high having regard to the degree of violence used and the absence of serious injuries.
However, on balance I am not persuaded that the sentence was excessive to the point of error. The appellant's record for violence was a bad one and he had offended in similar circumstances more than once before. I refer in particular to the fact that on a previous occasion he was also cold-bloodedly violent to another by way of retribution for something that had not occurred in his presence and twice before he had also kicked an incapacitated victim in the head. Kicking another in the head has the potential to cause serious harm. Referring again to the words of the sentencing judge on 3 December 2001, the appellant demonstrated a lust for brutality. That he breached a condition of suspended imprisonment when he committed these crimes was an added factor that demanded a sentence that emphasised personal deterrence.
I observe that having regard to his bad record for violence, the non-parole period, fixed by the sentencing judge at half the sentence, was a lenient one.
Conclusion
For these reasons, I am not persuaded that a sentencing error occurred and would dismiss the appeal.
Serial No 105/2009
File No 522/2009
SHAUNE HENRY HOWLETT v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
7 December 2009
I have had the opportunity to read the draft reasons of the Chief Justice in this matter. I agree with those reasons and the conclusion he has reached. I would also dismiss the appeal.
Serial No 105/2009
File No 522/2009
SHAUNE HENRY HOWLETT v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J
7 December 2009
I have read the draft reasons for judgment of the Chief Justice. I agree with those reasons and I would also dismiss the appeal.
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