R v Howard - [1999] NSWSC 1228

CITATION: R v Howard [1999] NSWSC 1228

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): 70007/98

HEARING DATE(S): 6-10 December, 14 December 1999

JUDGMENT DATE:
17 December 1999

PARTIES :

Regina v Stuart John Howard

JUDGMENT OF: Bell J at 1

COUNSEL : Mr P Lynch (Crown)
Mr S Wetmore (Prisoner)

SOLICITORS: S E O'Connor (Crown)
Baird & Associates (Prisoner)

CATCHWORDS: CRIMINAL LAW & PROCEDURE - Sentencing - Manslaughter - Provocation

ACTS CITED: Criminal Procedure Act 1986
Sentencing Act 1989

CASES CITED: R v Previtera (1997) A Crim R 76
R v Oinonen [1999] NSW CCA 310
R v Macdonald (unreported, NSW CCA, 12 December 1995)

DECISION: See para 23

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

BELL J

FRIDAY 17 DECEMBER 1999

070007/98 - REGINA v STUART JOHN HOWARD

SENTENCE

1    HER HONOUR: On 6 December 1999 Stuart John Howard was arraigned before me on an indictment charging him that on 15 November 1997 at Greenacre he did murder Shane Usher. He entered a plea of not guilty and a jury was duly empanelled. On 10 December 1999 the jury returned a verdict of guilty of manslaughter.
2    The prisoner was aged thirty-one at the date of the offence. He had been friendly with the deceased, who was also aged in his early thirties, for about two and a half years. Both were living with their respective de facto partners in a block of units at 23 Marlene Crescent, Greenacre.
3    Around June 1997 there was a deterioration in the relationship between the two men. The deceased borrowed a guitar belonging to the prisoner's partner, Colleen Lyons. Some time later the prisoner came to learn that the guitar had been pawned by the deceased. Further, the deceased had borrowed some money from Ms Lyons, the bulk of which had not been repaid.
4    The deceased's younger brother, Jamie McCissock, was then on friendly terms with the prisoner. Again, around mid-1997 Jamie had a falling out with his older brother and moved into the prisoner's flat. It appears that the prisoner considered that the deceased had treated Jamie and his partner, Crystal, shabbily. A combination of these matters led the prisoner to develop a growing resentment towards the deceased.
5    On the evening of Saturday, 15 November 1997, the prisoner telephoned Jamie McCissock. He had not seen Jamie for the past fortnight and appears to have been somewhat annoyed that Jamie had resolved his differences with the deceased. During the course of this telephone call the prisoner made reference to his dispute with the deceased. During the course of the trial there was some controversy concerning the content of this call. Jamie and Crystal gave an account that the prisoner had made some unspecified threat towards the deceased by reference to a gun. The prisoner denied making any threats or referring to a gun. He agreed in the course of his evidence that when the deceased called to his home later that night he, the deceased, had asked, "What's this…

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 [1999] NSWSC 1228
Case: [1999] NSWSC 1228
Decision Date: 17 December 1999

CaseChat Overview and Summary

In the case of R v Howard, the appellant, Howard, was convicted of manslaughter following the death of his partner, the deceased. The matter came before the court on appeal, with the appellant challenging the sentence imposed by the trial judge. The court was tasked with determining whether the sentence was appropriate in light of the circumstances of the case and the principles of sentencing for manslaughter.

The legal issues central to this appeal were whether the trial judge had correctly applied the principles of sentencing for manslaughter, particularly in relation to the mitigating factor of provocation, and whether the sentence imposed was excessive. The appellant argued that the trial judge had failed to properly consider the impact of provocation on his culpability and had therefore imposed a sentence that was harsher than necessary.

The court found that the trial judge had indeed considered the mitigating factor of provocation and had given it appropriate weight in determining the sentence. The court held that the sentence was within the range of penalties that could be considered appropriate for manslaughter in such circumstances. The court emphasised the importance of considering both the gravity of the offence and the mitigating factors, such as provocation, in the sentencing process. The appeal was therefore dismissed, and the original sentence was upheld.

The court made no further orders beyond the dismissal of the appeal and the affirmation of the original sentence.

Orders