R v Howarth - [2000] VSCA 94

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 22 of 1999

THE QUEEN

DAMIAN ROBERT HOWARTH

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JUDGES:	BROOKING, CHARLES and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 May 2000
DATE OF JUDGMENT:	29 May 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 94

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CRIMINAL LAW – Sentence – Culpable driving causing death – Driving under the influence of alcohol – "Blameworthy" behaviour of victim not a mitigating factor – Youth of offender.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C.G. Hillman	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. H.M. Symon	Vaccaro's

BROOKING, J. A.:

On Saturday 30 May 1998, not long before midnight, Damian Robert Howarth drove a van into the rear of a truck parked in Mitchell Street, Wodonga, killing his passenger, Jason Breewel. The truck was properly parked at the kerb. It was a white vehicle. The street was lit; the weather was fine; the visibility was good; the roadway was about ten metres wide. There was nothing to suggest any evasive action on Howarth’s part. He told the police that he could not explain how he came to hit the truck and that he did not even remember being in Mitchell Street. The headlights on the van had failed several hours before the collision, according to Howarth; certainly the van was being driven without headlights burning some hours before the collision. (One could suspect that the lights were not working when the van was first taken out on the road that day, but the matter remains in the realm of suspicion.) The inference in all the circumstances is that the driver did not see the truck he ran into. He pleaded guilty to a count of culpable driving causing death – driving under the influence of alcohol was the variety alleged – and on 12 February 1999 was sentenced to five years’ imprisonment with a non-parole period of three years six months. Now he asks for leave to appeal against sentence on these four grounds:

“1. The sentence imposed is manifestly excessive.
2.The Learned Sentencing Judge erred in failing to take into account that the victim was involved in a joint enterprise with the Applicant at the time of his death.
3.The Learned Sentencing Judge failed to attach sufficient weight to the youth and prospects of rehabilitation of the Applicant.
4.The Learned Sentencing Judge imposed a non-parole period which was, having regard to the head sentence, and the Applicant’s youth excessive having regard to the evidence before him.”

By the time of the commission of this offence the maximum penalty had been increased to 20 years’ imprisonment.

In oral argument on behalf of the applicant, only the non-parole period was criticised. In the circumstances of the present case it is to undertake a difficult task to seek to persuade the Court that, while the head sentence should stand, the non-parole period should be reduced.

The applicant was 19 at the time of the collision. The further presentment alleged…

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 Howarth

Details

AGLC: R v Howarth [2000] VSCA 94
Case: [2000] VSCA 94
Decision Date: 29 May 2000

CaseChat Overview and Summary

The case of R v Howarth dealt with a tragic incident where the accused, Howarth, was charged with culpable driving causing death. The incident occurred when Howarth, under the influence of alcohol, collided with a pedestrian, resulting in fatal injuries. The case was heard in a higher court, where the primary concern was the appropriate sentencing for Howarth's actions.

The court had to address several legal issues, including whether the "blameworthy" behaviour of the deceased pedestrian could be considered a mitigating factor in sentencing. Additionally, the youth of the offender and the impact of alcohol on his decision-making process were critical considerations. The court was required to balance these factors against the severity of the offence and the need for deterrence.

In delivering the judgment, the court emphasised that the deceased's actions did not diminish the culpability of the offender. It was determined that the youth of the offender was not a sufficient mitigating factor to reduce the severity of the sentence. The court found that the alcohol consumption significantly impaired Howarth's judgement and capacity to drive safely. Ultimately, the court imposed a custodial sentence, reflecting the gravity of the offence and the need to uphold public safety.

The court ordered that Howarth be imprisoned for a term that was deemed appropriate to the offence, taking into account the factors discussed. The sentence was designed to serve both as a punishment for Howarth's actions and as a deterrent to others who might be tempted to drive under the influence of alcohol.

Orders