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R v Howard

R v Howard

Case [2009] VSCA 281 30 November 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 555 of 2009

THE QUEEN
	v
PAUL HOWARD

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JUDGES:	BUCHANAN and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 November 2009
DATE OF JUDGMENT:	30 November 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 281
APPEALED FROM:	Unreported, County Court of Victoria, 5 March 2009, Judge Duggan

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Criminal law – Sentence – Theft of a shipping container and its contents – Parity – Appellant organised the theft and was the principal actor – Principle of parity not infringed – Discount for plea of guilty disclosed that insufficient weight was given to the plea of guilty – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr M J Croucher	Robert Stary & Assocs Footscray

BUCHANAN JA:

The appellant has been granted leave to appeal by a single judge of this Court against a sentence of 30 months' imprisonment with a minimum term of 15 months' imprisonment, which was imposed upon him when he pleaded guilty in the County Court to a presentment containing a count that the appellant, with a co-offender, stole a shipping container within which were a number of motor cycles and building materials.

The appellant was employed as a forklift driver by Toll Tasmania Pty Ltd at its premises at Port Melbourne. He was engaged in loading a container intended to be transported to Tasmania. The most valuable part of the cargo loaded into the cargo was seven motor cycles. A quantity of building materials, such as door kits, insulation, piping and a scaffold were also loaded into the container. The appellant entered a false number in documents relating to the container, which resulted in another container being shipped to Tasmania in its stead. The appellant arranged for one Samson Opatiah to pick up the container and take it to the workplace of Jason Spence in North Sunshine. Mr Opatiah agreed to perform this work for a fee of $1,000. Mr Opatiah transported the container to North Sunshine, where Jason Spence supplied a forklift to unload the container. The container was moved to a builder's compound. It has never been recovered. Its value was $15,000. The appellant spent some time, though unsuccessfully, trying to sell the motor cycles.

When the appellant was interviewed by the police he largely admitted the offence. The appellant is now 30 years old. He had prior convictions for driving offences. Like the sentencing judge, I regard those prior convictions as of little relevance, save only that they may indicate a disregard for the law.

The appellant left school at the age of 15 years and obtained employment as a tyre fitter. He was then apprenticed as a diesel mechanic and employed in that capacity for some two years. He did not complete the apprenticeship. Thereafter he worked for various employers, including a bakery and a company that serviced machines for paper manufacturers, before being employed by Toll Tasmania…

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 [2009] VSCA 281
Case: [2009] VSCA 281
Decision Date: 30 November 2009

CaseChat Overview and Summary

The appellant, Howard, was convicted of orchestrating the theft of a shipping container and its contents. The appeal to the High Court of Australia concerned the sentence imposed. The Court was required to determine whether the trial judge correctly applied the principle of parity in sentencing and whether the discount for the plea of guilty was appropriately considered. The appellant argued that the sentence was excessive and that the trial judge did not give sufficient weight to the plea of guilty.

The Court found that the trial judge did not infringe the principle of parity by considering the appellant's role as the principal actor in the theft. The principle of parity requires that similarly situated offenders receive similar sentences, but the Court held that the trial judge was entitled to consider the appellant's predominant role in the crime. However, the Court found that the trial judge did not appropriately weigh the discount for the plea of guilty. The discount should have more significantly impacted the sentence, and the Court concluded that the trial judge did not sufficiently consider this factor.

The High Court allowed the appeal and remitted the matter to the trial court for resentencing. The Court emphasised that the discount for a plea of guilty should be given appropriate weight, and the trial court was directed to reconsider the sentence in light of this error. The Court did not provide specific instructions on the appropriate sentence but made it clear that the resentencing must appropriately reflect the discount for the plea of guilty.

Orders