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R v Howat

R v Howat

Case [2017] SASCFC 41 10 May 2017

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HOWAT
[2017] SASCFC 41
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Parker and The Honourable Justice Doyle)
10 May 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS - FINANCIAL TRANSACTION OFFENCES
The appellant pleaded guilty to three groups of offences. The first involved six counts of theft. This was representative of 46 counts of theft, involving a total of approximately $105,500 stolen from the appellant’s employer during an approximately 17 month period. The second involved 39 counts of theft and eight counts of dishonestly dealing with a document. These counts involved a total of about $67,000 stolen from the appellant’s mother during an approximately 12 month period. The third involved two breaches of the appellant’s two bail agreements.
For the first group of offences, the sentencing judge commenced with a notional head sentence of eight years imprisonment, reducing this by one year on account of the appellant’s pleas of guilty to seven years. For the second set of offending, the sentencing judge commenced with a notional head sentence of six years imprisonment, which he reduced to five years on account of the appellant’s pleas of guilty. His Honour reduced the resulting total of 12 years imprisonment to an overall sentence of nine years, invoking the principle of totality. He fixed a non-parole period of five years. There were numerous delays in the progress of the matter, resulting in the appellant not being sentenced until almost 10 years after her first offences.
The appellant appealed on the grounds that the sentencing judge failed to take into account the delays in the matter and that the sentence was manifestly excessive.
Held per Doyle J (Vanstone and Parker JJ agreeing), allowing the appeal:
1.       The sentencing judge took into account the delay, and hence no error was established.
2.       The sentence imposed was manifestly excessive.
3.       Appellant resentenced to six years imprisonment, with a non-parole period of three years and eight months imprisonment.
Criminal Law Consolidation Act 1935 (SA) ss 134, 140, referred to.
R v Schaefer [2006] SASC 348; House v The King (1936) 55 CLR 499; R v Davies (1996) 88 A Crim R 226; R v Cavanagh [1999] SASC 418; R v Powell (2001) 81 SASR 9; Heaft v Police (2004) 87 SASR 496; Police v Curtis (2004) 145 A Crim R 587; R v Jorquera [2013] SASCFC 145; R v McPhee [2014] SASCFC 107; R v Varano (1989) 150 LSJS 140, considered.

R v HOWAT
[2017] SASCFC 41
Court of Criminal Appeal: Vanstone, Parker and Doyle JJ

VANSTONE J: I agree with the orders proposed by Doyle J and with his Honour’s reasons.
PARKER J: I agree with the reasons of Doyle J and the orders he proposes.
DOYLE…

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 Howat

Details

AGLC: R v Howat [2017] SASCFC 41
Case: [2017] SASCFC 41
Decision Date: 10 May 2017

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia considered an appeal by the Crown against a decision of a District Court judge to stay proceedings against the respondent, Howat. The dispute concerned charges brought against Howat under the *Financial Transaction Reports Act 1988* (Cth) (the Act), alleging that he failed to report certain cash transactions exceeding $10,000 to the Australian Transaction Reports and Analysis Centre (AUSTRAC). The Crown sought to appeal the District Court judge's decision to stay these proceedings.

The central legal issue before the Full Court was whether the District Court judge had erred in law by ordering a stay of proceedings. This required the court to determine whether the judge had a proper basis for concluding that the prosecution of Howat was an abuse of process, thereby justifying the extraordinary remedy of a stay. The court also had to consider the principles governing the exercise of a judicial discretion to stay criminal proceedings.

The Full Court found that the District Court judge had misapplied the principles relating to abuse of process. The judge had relied on a perceived unfairness in the prosecution's conduct, specifically the timing of the charges and the alleged lack of prior warning to Howat. However, the Full Court held that these factors, while potentially relevant to sentencing or other aspects of the proceedings, did not, in themselves, constitute an abuse of process that would warrant a stay. The court reiterated that a stay for abuse of process is a rare and exceptional measure, typically reserved for situations where the integrity of the judicial process itself is threatened, such as prosecutorial misconduct that fundamentally undermines the fairness of the trial. The court concluded that the judge's decision to stay the proceedings was not supported by the evidence or the relevant legal principles.

The Full Court accordingly allowed the Crown's appeal, set aside the order for a stay of proceedings, and remitted the matter back to the District Court for further hearing.

Orders