Reported Decision:
48 ACSR 438
Supreme Court
CITATION: R v Howard [2003] NSWSC 1248 HEARING DATE(S): 16/12/03 JUDGMENT DATE:
23 December 2003JURISDICTION:
Common Law Division
Criminal ListJUDGMENT OF: Kirby J DECISION: Count 1: Imprisonment for 1 year 9 months commencing 23/12/03 and expiring 22/09/05; Count 2: Imprisonment for 2 years commencing 23/12/04 and expiring 22/12/06; Recognizance release date 22 December 2005; Sentence suspended under s20(1)(b) of the Crimes Act 1914 CATCHWORDS: Criminal Law - crimes of dishonesty and breach of trust by senior manager - white collar crime - offer of assistance - suspended sentence provided fulfills undertaking to give assistance LEGISLATION CITED: Corporations Act 2001
Crimes Act 1900 (NSW)
Crimes Act 1914CASES CITED: R v Ellis (1986) 6 NSWLR 603
R v Cartwright (1989) 17 NSWLR 243
R v Gallagher (1991) 23 NSWLR 220PARTIES :
Regina
William Herbert Howard
FILE NUMBER(S): SC 70106/03 COUNSEL: T A Game SC (Crown)
I McClintock SC/H Dhanji (Acc)SOLICITORS: Ms J Phillips/B Hatfield, (Cth DPP)
Watson Mangioni (Acc)
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LISTDAVID KIRBY J
Tuesday 23 December 2003
JUDGMENT ON SENTENCE70106/03 REGINA v William Herbert HOWARD
1 KIRBY J: On 16 December 2003 the Commonwealth Director of Public Prosecutions presented an ex officio indictment against William Herbert Howard. The indictment was in these terms:
- Count 1 : Between 2 December 2000 and 15 March 2001, William Herbert Howard did, contrary to section 184(2)(b) of the Corporations Act 2001, as an employee of HIH Casualty and General Insurance Ltd (HIH), use his position dishonestly, recklessly as to whether such use resulted in Bradley David Cooper directly or indirectly gaining an advantage, in that he dishonestly received from Cooper cash sums totalling approximately $124,000 in return for his facilitating payments by HIH, or its subsidiaries, to or in favour of Cooper, or companies associated with him.
- Count 2 : Between 2 January 2001 and 16 January 2001 William Herbert Howard did, contrary to section 184(2)(a) of the Corporations Act 2001, as an employee of HIH Casualty and General Insurance Ltd (HIH), use his position dishonestly, with the intention of directly or indirectly gaining an advantage for Bradley David Cooper, by facilitating the payment of $737,500 by HIH to The Goodwill Group Pty Ltd, a company associated with Cooper, knowing that the payment obligation had already been discharged.
2 Mr Howard pleaded guilty to both counts. It remains for me to pass sentence. Before I do so, I must determine the facts relevant to the sentencing discretion. Where the facts are adverse, they must be established beyond reasonable doubt. Where they favour Mr Howard, it is enough that they should be proved on the balance of probabilities.
Background
3 The circumstances giving rise to these charges are complex. They are described in the statement of facts (Exhibit A). Mr Howard was an accountant. He joined the group which ultimately became HIH Insurance Limited in December 1996. In April 1999 he was…
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- AGLC
- R v Howard [2003] NSWSC 1248
- Case
- [2003] NSWSC 1248
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the offer of assistance provided by Howard could be taken into account in determining his sentence and whether such an offer could warrant a suspended sentence, provided Howard fulfilled his undertaking to give assistance. The court had to consider the precedent established in previous cases concerning the weight to be given to an offer of assistance in sentencing and whether such offers could justify a departure from the usual sentencing principles applicable to crimes of dishonesty and breach of trust.
The court, in its judgment, acknowledged the significance of Howard's offer of assistance and recognised that such offers could be a relevant factor in sentencing. The court emphasised that while offers of assistance were not a guaranteed basis for a more lenient sentence, they could be considered when determining the appropriate penalty. In this case, the court found that Howard's offer was sufficiently substantial and that his cooperation had the potential to yield significant benefits to the prosecution. Accordingly, the court determined that a suspended sentence was an appropriate response, provided Howard fulfilled his commitment to give assistance. The court highlighted that the primary purpose of the sentence was to deter Howard and others from engaging in similar criminal conduct while also taking into account the potential benefits of Howard's cooperation.
The final orders of the court were that Howard's sentence would be suspended for a period of two years, subject to certain conditions, including his ongoing cooperation with the prosecution in the related investigation. Should Howard fail to fulfil his obligations, the suspended sentence would be converted to an imprisonment term. This decision underscores the importance of offers of assistance in the sentencing process, particularly in cases involving crimes of dishonesty and breach of trust by individuals in positions of responsibility.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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