JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 December 2013
DATE OF SENTENCE:	6 May 2014
CASE MAY BE CITED AS:	R v Howard
MEDIUM NEUTRAL CITATION:	[2014] VSC 194

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CRIMINAL LAW – sentencing – manslaughter – plea of guilty – loaded handgun taken to potential confrontation with victim – no prior convictions for violence in adulthood – aged 64 at date of offence – knowledge that daughter had been assaulted by victim the evening before offence – emphasis given to principles of general deterrence, denunciation and punishment - total effective sentence of 8 years’ imprisonment with non-parole period of 5 years and 3 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston	Office of Public Prosecutions
For the Accused	Mr W. Toohey	Randles, Cooper Lawyers

HIS HONOUR:

Wallace John Howard, you have pleaded guilty to the manslaughter of Matthew Schmidt on 25 February 2012. The maximum penalty for manslaughter is 20 years’ imprisonment.

On Friday 24 February 2012, your daughter Samantha’s partner, Jamie Morgan, had been arrested by police and placed in custody. A number of weeks earlier, Morgan had been living at the house of the deceased, Matthew Schmidt, and his wife, Karen, in Ambon Street, Preston. Upon Morgan’s arrest, Karen Schmidt wanted Samantha to collect his belongings which he had left behind at their house.

Samantha attended the Schmidt’s house at about 5.00pm that afternoon. An argument arose between them concerning the arrest of Morgan and the circumstances surrounding it. In the course of the fracas that followed, Karen Schmidt struck Samantha in the face. Matthew Schmidt also struck her to the face and continued assaulting her, pushing her backwards out of the rear door of the Ambon Street house into a carport area. Matthew Schmidt continued to beat her, as a result of which she sustained a black eye and several bruises to her back. It was apparent that Matthew Schmidt was in a fierce temper.

During the assault, Samantha had dropped her red purse onto the kitchen floor, together with some other papers, including a copy of the search warrant the police had used when arresting Morgan, and some other documents. She managed to leave.

It seems that Samantha informed you of what had occurred and that she wanted to return to the Ambon Street house to collect her purse and documents. She needed the documents to visit Morgan in gaol. You agreed to help her retrieve her things.

At about 11.30am the next day, Saturday 25 February 2012, you arrived at Ambon Street accompanying Samantha. Fatefully, you were armed with a loaded pistol. You parked your car on or near the driveway of the house.

Initially, you called out to Karen Schmidt to the effect, “Karen, are you there?” Shortly after, Karen Schmidt appeared from behind the metal gates a little way up the elevated…

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 [2014] VSC 194
Case: [2014] VSC 194
Decision Date: 6 May 2014

CaseChat Overview and Summary

In the matter of R v Howard, the respondent, who had taken a loaded handgun to a potential confrontation with the victim, was before the court. The respondent had pleaded guilty to manslaughter, and the court was required to determine an appropriate sentence. The respondent had no prior convictions for violence in adulthood but was 64 at the time of the offence. The respondent had also been aware that the victim had assaulted the respondent's daughter the evening before the offence. The court was tasked with balancing the principles of general deterrence, denunciation, and punishment in determining the sentence.

The court was required to consider several factors in determining an appropriate sentence for the respondent's manslaughter conviction. These factors included the respondent's age, lack of prior convictions for violence in adulthood, and the presence of a loaded handgun during the confrontation with the victim. The court also needed to consider the respondent's knowledge that the victim had assaulted the respondent's daughter the evening before the offence. Additionally, the court had to balance the principles of general deterrence, denunciation, and punishment in determining an appropriate sentence.

In determining the sentence, the court placed significant emphasis on the principles of general deterrence, denunciation, and punishment. The court noted that the respondent had taken a loaded handgun to a potential confrontation, which demonstrated a high degree of recklessness. The court also considered the respondent's age and lack of prior convictions for violence in adulthood as mitigating factors. However, the court ultimately determined that the principles of general deterrence, denunciation, and punishment required a significant sentence. The court imposed a total effective sentence of 8 years’ imprisonment with a non-parole period of 5 years and 3 months.

The court's final orders included a total effective sentence of 8 years’ imprisonment with a non-parole period of 5 years and 3 months. The court's decision emphasised the importance of the principles of general deterrence, denunciation, and punishment in determining an appropriate sentence for the respondent's manslaughter conviction. The court's consideration of the mitigating factors, such as the respondent's age and lack of prior convictions for violence in adulthood, did not outweigh the need for a significant sentence to uphold the principles of general deterrence, denunciation, and punishment.

Orders