R v Howell - [2018] ACTSC 155

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Howell
Citation:	[2018] ACTSC 155
Hearing Date:	25 May 2018
DecisionDate:	25 May 2018
Before:	Mossop J
Decision:	See [27]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – intentionally or recklessly inflicts actual bodily harm – off duty police officer – punches cause fractured cheekbone and nerve damage – general deterrence – denunciation – recognition of harm – period of imprisonment fully suspended upon entering a good behaviour order
Legislation Cited:	Crimes Act 1990 (ACT), s 23 Crimes (Sentencing) Act 2005 (ACT), s 15
Cases Cited:	R v Forsyth [2015] ACTSC 326 R v Johnson [2018] ACTSC 128 R v Saulala [2016] ACTSC 48
Parties:	The Crown (Crown) Wade Joseph Howell (Offender)
Representation:	Counsel K Weston-Scheuber (Crown) J Sabharwal (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender)
File Number:	SCC 99 of 2017

MOSSOP J:

Introduction

Following a trial before a jury, the offender was found guilty of one count of intentionally or recklessly inflicting actual bodily harm contrary to s 23 of the Crimes Act1900 (ACT). The maximum penalty for that offence is imprisonment for five years. He was found not guilty of recklessly inflicting grievous bodily harm, unlawfully choking, suffocating or strangling a person and attempting to pervert the course of justice.

Facts

The offender was an officer in the Australian Federal Police (AFP). He was in Canberra doing a course in Close Personal Protection. It was a Friday night. He had been out with work colleagues and had been drinking at Mooseheads Pub and Nightclub (Mooseheads), amongst other drinking establishments. He was significantly affected by alcohol. He left Mooseheads and followed a woman who had also left Mooseheads and was walking towards the Medina Apartments on the corner of Cooyong Street and Northbourne Avenue. He struck up a conversation with her. He walked with her to the Veterans Park on Mort Street where the two of them sat down on a bench and continued talking.

The boyfriend of the woman (the complainant), who had been left in Mooseheads, had departed those premises shortly after his girlfriend. He had spotted her walking with the offender some distance ahead of him and followed them in an attempt to catch up. The complainant approached the offender and his girlfriend at a fast walking pace. He was a lightly built man of Sri Lankan background.

As he quickly approached, the woman said to him “it’s a police officer, don’t hit him”.

The offender stood up and pushed the complainant back. The complainant said, “what the fuck?” The offender then struck him once in the head and the complainant fell to the ground. The offender then straddled the complainant and continued to punch him while he was on the ground. He punched him multiple times in the head, including at least one punch to the left hand side of his face and nose. The complainant was on the ground…

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 Howell

Details

AGLC: R v Howell [2018] ACTSC 155
Case: [2018] ACTSC 155
Decision Date: 25 May 2018

CaseChat Overview and Summary

In the case of R v Howell, the defendant was charged with intentionally or recklessly inflicting actual bodily harm on a victim, resulting in a fractured cheekbone and nerve damage. The incident occurred when the defendant, an off-duty police officer, punched the victim during an altercation. The case was heard in the relevant Australian court, which had to determine the appropriate sentence for the offence committed. The primary legal issues before the court were whether the sentence should reflect general deterrence, denunciation, and recognition of the harm caused, and if so, how these factors should be balanced against the defendant's background and circumstances.

The court considered the principles of sentencing in cases involving intentional or reckless infliction of harm. It examined the gravity of the offence, the defendant's role as a police officer, and the impact of the assault on the victim. The court also took into account the defendant's otherwise unblemished record and his remorse. After weighing these factors, the court concluded that a sentence of imprisonment was warranted but decided to fully suspend the period of imprisonment upon the defendant entering into a good behaviour order. This decision aimed to achieve the objectives of general deterrence and denunciation while also recognizing the harm caused and the defendant's personal circumstances.

The court found that a suspended sentence would adequately serve the purposes of punishment without unduly affecting the defendant's ability to maintain employment and contribute to society. The good behaviour order was intended to reinforce the court's denunciation of the defendant's conduct and to ensure compliance with legal standards. The court emphasised that the suspended sentence and good behaviour order would provide a balanced approach, reflecting the seriousness of the offence while allowing for the defendant's rehabilitation and reintegration into the community.

Orders

Orders of the court

See [27]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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