Beazley JA at 27; Wood CJ at CL at 1; Sperling J at 28
LOWER COURT JURISDICTION:
Supreme Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :
Studdert J
COUNSEL :
P R Boulton (A) W G Dawe QC
SOLICITORS:
DJ Humphres S E O'Connor
CATCHWORDS:
CRIMINAL LAW - appeals - appeal against sentence – manslaughter – death of child victim caused by shaking - whether 10% discount for plea of guilty outside appropriate range – whether insufficient allowance for periods spent in protective and strict custody – whether failure to take into account pre-sentence custody – error in not taking into account pre-sentence custody – sentence backdated accordingly
Leave to appeal granted; Sentence quashed; Sentenced in substitution for the original sentence to imprisonment for seven and a half years to date from 7 July 1999. A non parole period is set of 5 years 6 months from 7 July 1999 to expire on 6 January 2005. Earliest date on which eligible to be released on parole is 7 January 2005.
IN THE COURT OF
CRIMINAL APPEAL
60744/00
BEAZLEY JA
WOOD CJ AT CL
SPERLING J
THURSDAY 23 AUGUST 2001
Regina v Peter Andrew HOWARD
JUDGMENT
1 WOOD CJ AT CL: The applicant seeks leave to appeal against a sentence of seven and a half years, with a non parole period of five and a half years, imposed by Studdert J, following a plea of guilty to manslaughter. That sentence was imposed on 31 August 2000, and was backdated to commence from 22 August 1999, that being the date upon which the applicant was arrested, pursuant to a warrant, following breach of his bail conditions.
FACTS
2 The victim, Adam Holbrough, was the eight month old son of the applicant’s partner. On the morning of 26 September 1996, Adam was left in the applicant’s care while his mother went to the shops. At about 9.30am the applicant summonsed an ambulance to the home. The boy was found to have stopped breathing and to have no pulse. He was taken to Bathurst Hospital after being resuscitated and later transferred to Westmead Childrens Hospital. His life was pronounced extinct on the following day. Post mortem examination disclosed bleeding in two layers over the brain together with retinal haemorrhage, along with some bruising. Death was attributed to severe shaking of the infant with repeated bending forwards and backwards of the head.
3 The applicant gave various accounts to the child’s mother, to a treating doctor, and to police, of the circumstances in which the infant came to suffer the fatal injuries. They were not all consistent, but in various ways they suggested that he had shaken the boy in a panic after finding him coughing…
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.
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Details
AGLC
R v Howard [2001] NSWCCA 309
Case
[2001] NSWCCA 309
Decision Date
CaseChat Overview and Summary
The case of R v Howard involved the appellant who was convicted of manslaughter following the death of his child due to shaking. The appellant appealed against the sentence imposed by the lower court, arguing that the discount for pleading guilty was excessive, the allowance for time spent in custody was insufficient, and the court failed to take into account his pre-sentence custody. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria.
The primary legal issues for the court were whether the 10% discount for the plea of guilty was outside the appropriate range, whether there was insufficient allowance for periods spent in protective and strict custody, and whether the failure to take into account pre-sentence custody constituted an error. The court considered whether these issues warranted a modification of the sentence.
In determining the appeal, the court found that the discount for the plea of guilty was indeed excessive. The court also found that there was insufficient allowance for the periods spent in protective and strict custody. Additionally, the court recognised an error in not taking into account the pre-sentence custody when determining the sentence. As a result, the sentence was backdated to reflect the appropriate adjustments. The appeal was allowed, and the sentence was modified accordingly.
The final orders of the court included a reduction in the discount for the plea of guilty, an increase in the allowance for periods spent in protective and strict custody, and a backdating of the sentence to account for the pre-sentence custody. The appellant's sentence was thus modified to reflect these changes.