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R v Howell

R v Howell

Case [2007] VSCA 119 4 June 2007

Criminal Liability

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 330 of 2005

THE QUEEN
	v.
CINDY LEANNE HOWELL

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JUDGES:	NETTLE, ASHLEY and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 June 2007
DATE OF JUDGMENT:	4 June 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 119

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Criminal law – Sentencing – Maintaining a sexual relationship with a child under the age of 16 years – Female schoolteacher taking part in acts of sexual penetration with 15 year old male child – Child under her direct supervision – Appellant’s mental state at time of offending – Whether judge erred in failing to have regard to the principles essayed in Tsiaras – Appeal allowed – Crimes Act 1958, s 47A(1) – R v Tsiaras [1996] 1 VR 398; R v Verdins [2007] VSCA 102 applied.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr D G Just	Victoria Legal Aid

NETTLE JA:

This is an appeal from a sentence of five years' imprisonment, with a non-parole period of two years and six months, imposed on the appellant on pleading guilty to one count of maintaining a sexual relationship with a child under the age of 16 years.[1]
[1]Crimes Act 1958, s 47A(1).

Most of the facts appear from the judge's sentencing remarks. At the time of the offending, the appellant was a 36-year-old mother of four who was living apart from her husband and working as an integration aide-teacher at a secondary school. The complainant was a 15-year-old male student at the school. He was to some extent disadvantaged in that he was a slow reader, and he was under the direct supervision of the appellant in her capacity as an integration aide-teacher. Early in 2004 he started to date the appellant's 13-year-old daughter, and one evening he was invited to stay overnight at the appellant's home. In the early hours of the morning, the appellant went into the room where the complainant was sleeping and lay down next to him, and, after seeking and obtaining his consent, she fellated him to ejaculation. The following weekend she arranged to collect the complainant from nearby shops and then drove him to the beach, where they engaged in sexual intercourse. After the complainant arrived home he told a friend that he had got laid. The next weekend the appellant made a similar arrangement to meet the complainant, and, after purchasing condoms, she drove him again to the beach, where they engaged in sexual intercourse.

Some two weeks later, when the complainant was staying overnight at the appellant's home, the appellant entered the room where the complainant was sleeping, fellated him and, after placing a condom on his penis, engaged in sexual intercourse until he ejaculated. The same thing happened again the next weekend, when the complainant was once more staying overnight at the complainant's home.

In mid-2004, the appellant became friendly with the complainant's mother and went to stay in…

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 Howell [2007] VSCA 119
Case: [2007] VSCA 119
Decision Date: 4 June 2007

CaseChat Overview and Summary

In this appeal, the appellant, Howell, was convicted of engaging in sexual acts with a 15-year-old male student under her direct supervision, which led to a sentence being imposed by the County Court. The appellant's appeal against the sentence was heard by the Court of Appeal, which considered the legal principles that should have been applied in determining the appropriate punishment. The Court of Appeal was required to determine whether the County Court judge had erred in failing to properly consider the principles outlined in Tsiaras and Verdins when assessing the appellant's culpability and the circumstances surrounding the offending.

The Court of Appeal examined the sentencing principles that should have been applied in this case, particularly in relation to the appellant's mental state at the time of the offending and the need for any sentence imposed to reflect general and specific deterrence. The Court of Appeal found that the County Court judge had failed to adequately consider these principles, which led to an error in the sentencing process. The Court of Appeal concluded that the principles set out in Tsiaras and Verdins should have been applied, which would have resulted in a different sentence being imposed on the appellant.

As a result of the Court of Appeal's findings, the appeal was allowed, and the case was remitted back to the County Court for resentencing. The Court of Appeal emphasised the importance of properly considering the relevant principles when sentencing an offender, particularly in cases involving sexual offences against children. The Court of Appeal also highlighted the need for sentences to reflect the seriousness of the offending and to promote general and specific deterrence.

In light of the Court of Appeal's decision, the County Court is now required to resentence the appellant, taking into account the principles outlined in Tsiaras and Verdins, as well as any other relevant considerations. The Court of Appeal's decision serves as a reminder to courts that proper consideration of sentencing principles is essential in ensuring that sentences are just and appropriate in each individual case.

Orders