R v Howard - [2003] NSWSC 1248

Reported Decision:
48 ACSR 438

Supreme Court

CITATION: R v Howard [2003] NSWSC 1248

HEARING DATE(S): 16/12/03

JUDGMENT DATE:
23 December 2003

JURISDICTION:
Common Law Division
Criminal List

JUDGMENT 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 1914

CASES CITED: R v Ellis (1986) 6 NSWLR 603
R v Cartwright (1989) 17 NSWLR 243
R v Gallagher (1991) 23 NSWLR 220

PARTIES :
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 LIST

DAVID KIRBY J

Tuesday 23 December 2003

70106/03 REGINA v William Herbert HOWARD
JUDGMENT ON SENTENCE

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:

Corporations Act

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.

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…

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 [2003] NSWSC 1248
Case: [2003] NSWSC 1248
Decision Date: 23 December 2003

CaseChat Overview and Summary

The case of R v Howard arose before the Supreme Court of Victoria, where the appellant, Howard, a former senior manager at a prominent financial institution, was convicted of multiple counts of dishonesty and breach of trust. The appellant was found to have engaged in fraudulent activities, including the misappropriation of funds and the manipulation of financial records, which resulted in significant losses for the company and its shareholders. The prosecution sought to hold Howard accountable for his actions, which were characterised as crimes of dishonesty and breach of trust. In response, Howard offered to assist the prosecution in a related investigation in exchange for a more lenient sentence.

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