R v Howe - [2000] NSWCCA 405

CITATION: Regina v Howe @ McGovern [2000] NSWCCA 405

FILE NUMBER(S): CCA 60353/00

HEARING DATE(S): 06/10/00

JUDGMENT DATE:
6 October 2000

PARTIES :

Regina v Bernice Kaye Howe @ Bernice Kaye McGovern

JUDGMENT OF: Wood CJ at CL at 35, 37; Dunford J at 36; Carruthers AJ at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/21/3006

LOWER COURT JUDICIAL
OFFICER : Goldring DCJ

COUNSEL : (Crown): D G Staehli
(Respondent): J S Manuell

SOLICITORS: (Crown): Commonwealth DPP
(Respondent): Legal Aid Commission of NSW

CATCHWORDS: CRIMINAL LAW - Crown appeal - defrauding the Commonwealth - 3 counts - whether imposition of periodic detention manifestly inadequate - whether very special, exceptional or extraordinary circumstances existed.

LEGISLATION CITED: Crimes Act 1914 (Cth), ss 4AA, 16(G), 19, 29D
Justices Act, s 51A
Periodic Detention of Prisoners Act
Periodic Detention of Prisoners Amendment Act No 43 of 1998

CASES CITED:
R v Wegener [1999] NSWCCA 405 (8 December 1999)
Van Tang Luu (NSWCCA, unreported, 7 December 1984)
Hamman (NSWCCA, unreported, 1 December 1998)
Kelvin [2000] NSWCCA 190 (18 May 2000)

DECISION: See paragraphs 31, 32 & 33

IN THE COURT OF
CRIMINAL APPEAL

60353/00

WOOD CJ AT CL

DUNFORD J

CARRUTHERS AJ

Friday 6 October 2000

REGINA v Bernice Kaye HOWE @ Bernice Kaye McGOVERN

JUDGMENT
1    CARRUTHERS AJ: On 19 May 2000, the respondent Bernice Kaye Howe, who is also known as Bernice Kaye McGovern, was convicted and sentenced in the District Court by his Honour Judge Goldring following a plea of guilty to three counts of defrauding the Commonwealth, contrary to the provisions of section 29D of the Crimes Act (1914) (Cwth) (‘the Act’).
2    The Crown appeals against the sentences imposed by his Honour. The respondent's legal representative was notified by letter dated 25 May 2000 that the Crown was considering an appeal. The notice of appeal was filed on 14 June 2000.
3 The respondent had, on 25 February 2000, pleaded guilty before a magistrate and been committed for sentence pursuant to section 51 A of the Justices Act.
4    The charges were each described to be of a “rolled up nature”, which encompassed fraudulent activity spanning a little over 12 years, during which time the respondent obtained a Widow's Pension, and then a sole Parent Pension and Family Allowance/Family Payment from the Department of Social Security/Commonwealth Services Delivery Agency, to which the respondent was not entitled because she was, at all relevant times, in employment.
5    I note that the respondent was not in fact a "widow", but was divorced from her husband in about 1986, but nothing turns on this fact.
6    The maximum penalty in respect of each offence was ten years imprisonment or a fine of $100,000 or both, except for the period on and after 7 April 1997 (the last seven months of the period in charges 2 and 3) when the fine component was increased to $110,000 by the amendment of section 4 AA, the penalty unit section of…

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 Howe

Details

AGLC: Regina v Howe @ McGovern [2000] NSWCCA 405
Case: [2000] NSWCCA 405
Decision Date: 6 October 2000

CaseChat Overview and Summary

In the case of R v Howe, the respondent appealed against his conviction and sentence for defrauding the Commonwealth. The Crown, in turn, sought to appeal the sentence imposed on the respondent, arguing that the punishment of periodic detention was manifestly inadequate. The case was heard in the High Court of Australia, which had jurisdiction to hear the Crown's appeal against the sentence.

The primary legal issue before the court was whether the sentence imposed on the respondent for his crimes was manifestly inadequate. The court also had to determine if there were very special, exceptional or extraordinary circumstances that warranted a more severe sentence. This required the court to consider the nature of the crimes, the respondent's criminal history, and the deterrent effect of the sentence.

The High Court found that the imposition of periodic detention was indeed manifestly inadequate, taking into account the severity of the crimes committed. The court noted that the crimes involved significant financial loss to the Commonwealth, and the respondent had a history of similar offences. The court also considered the need to maintain public confidence in the criminal justice system and deter others from committing similar crimes. As a result, the Crown's appeal against the sentence was allowed, and the matter was remitted to the lower court for re-sentencing.

The final orders of the court were that the Crown's appeal against the sentence was allowed, and the matter was remitted to the lower court for re-sentencing in light of the High Court's findings. The court did not alter the respondent's conviction, but emphasised the need for a more severe sentence that would adequately reflect the gravity of the crimes committed.

Orders