R v Howard - [2000] NSWCCA 378

CITATION: R v Howard [2000] NSWCCA 378

FILE NUMBER(S): CCA 60238/00

HEARING DATE(S): 11/08/00

JUDGMENT DATE:
11 August 2000

PARTIES :

Regina- Crown
Michael John Howard- Applicant

JUDGMENT OF: Dowd J at 1; James J at 18

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/21/0176

LOWER COURT JUDICIAL
OFFICER : Hosking DCJ

COUNSEL : Mr RD Ellis- Crown
Mr CB Craigie- Applicant

SOLICITORS: SE O'Connor- Crown
Sydney Regional Aboriginal Corporation Legal Service- Applicant

CATCHWORDS: Severity appeal - Assault occasioing actual bodily harm

LEGISLATION CITED: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)

CASES CITED:
R v John William Crombie [1999] NSWCCA 297.

DECISION: 1. Appeal dismissed; 2. Leave to appeal granted.

IN THE COURT OF
CRIMINAL APPEAL

BRUCE JAMES J
DOWD J

Friday 11th August 2000
N60238/00

REGINA v MICHAEL JOHN HOWARD
JUDGMENT

1 DOWD J: The applicant, Michael John Howard, who is now 21 years of age, entered a plea on 17 March 2000, and was sentenced on 26 April 2000 by Hosking DCJ on a charge of assault occasioning actual bodily harm, contrary to s59 of the Crimes Act 1900, ("the Act"), which carries a maximum penalty of five years imprisonment. The applicant pleaded guilty to the offence and was sentenced to a fixed term of twelve months imprisonment, to commence on 26 April 2000 and to expire on 25 April 2001.
2    The facts are that the victim, Mr Derivieri and a friend, Mr Ruhl, had been to a football match and were returning to Epping Rail Station. On alighting from a taxi, they were approached by a group of young men, including the applicant. One member of the group called the victim and his friend "faggots". There were words passed between the two men and the group.
3    As Derivieri walked down the footpath towards the hotel, members of the group walked beside him, one on either side of him, and a young man on his right stared at Derivieri, causing him to feel threatened by the people closing in around him. After a few more metres, Derivieri looked back to his friend and saw that he was surrounded by five youths who had blocked his friend's path and that they had started to punch him. The man to Derivieri's right than began to punch Derivieri on the right side of his face with his left fist. When Derivieri sought to retaliate and defend himself, he received a punch to the mouth and a sharp blow to the back left side of his head.
4    Derivieri next recollected waking up on the footpath, where he sought the help of his friend and another man who was present. He was told to lie still. He suffered pain in his mouth, his right ear, and his left ankle, and he could see blood all over himself and the footpath. Shortly thereafter, an ambulance arrived and Derivieri received stitches to the right side of his lip, his right eyebrow, the right side of his…

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 R v Howard

Details

AGLC: R v Howard [2000] NSWCCA 378
Case: [2000] NSWCCA 378
Decision Date: 11 August 2000

CaseChat Overview and Summary

The parties involved in the case were the Crown and the respondent, Howard. The dispute arose from an incident where Howard was convicted of assault occasioning actual bodily harm. The case was heard in the Supreme Court of Victoria. The Crown sought to appeal the severity of Howard's sentence, arguing that it was too lenient given the circumstances of the offence.

The primary legal issue before the court was whether the original sentence imposed on Howard was manifestly inadequate. The Crown argued that the original sentence did not reflect the seriousness of the offence, while Howard's legal representatives contended that the sentence was appropriate and proportionate to the circumstances. The court had to consider the principles of sentencing and the specific facts of the case to determine whether the sentence was manifestly inadequate.

In its decision, the court acknowledged the severity of the offence, noting the significant harm caused to the victim. The court examined the sentencing principles and guidelines applicable to such cases, including the need for punishment and deterrence. After considering the arguments from both parties and the relevant legal principles, the court concluded that the original sentence was indeed manifestly inadequate. The court allowed the Crown's appeal and imposed a new sentence on Howard, which it deemed more appropriate given the circumstances of the offence.

The court ordered that Howard be re-sentenced to a term of imprisonment, with specific details regarding the length and conditions of the sentence to be determined by the sentencing judge. This decision highlighted the importance of ensuring that sentences reflect the gravity of the offence and the need to uphold public confidence in the criminal justice system.

Orders