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R v Howes

R v Howes

Case [2000] VSCA 159 11 September 2000

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.107 of 2000

THE QUEEN
	v.
RODNEY STEWART HOWES

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JUDGES:	WINNEKE, P., BROOKING and CHERNOV, JJ.A.
WHERE HELD:	HORSHAM
DATE OF HEARING:	14, 15 August 2000
DATE OF JUDGMENT:	11 September 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 159

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CRIMINAL LAW – Act of sexual penetration with seventeen year old – Teacher and pupil – Whether at time of penetration complainant under “care, supervision or authority” within meaning of s.48 Crimes Act 1958 – Whether genus created – Words given ordinary meaning – “Or” not read as “and” – Whether “care, supervision or authority” extends to occasions other than school ones.

CRIMINAL LAW – Sentence – Act of sexual penetration with seventeen year old – Six months’ imprisonment not manifestly excessive.

EVIDENCE – Whether failure to comply with rule in Browne v. Dunn.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. G. Hicks and Ms R. Carlin	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. P.G. Priest, Q.C. and Mr. P.A. Darcy	Capell Burke

WINNEKE, P.:

On 5 May 2000 the applicant, who is now aged 44 years, was convicted by a jury in the County Court at Ballarat of one count on a severed presentment alleging that he had, in October 1993, taken part in an act of sexual penetration with a seventeen year old girl (whom I shall call “the complainant”) contrary to the provisions of s.48 of the Crimes Act 1958 (Vic.). This count was pleaded as an alternative to a count alleging rape of the complainant, of which the applicant was acquitted. On 11 May 2000, the judge sentenced the applicant to a term of 6 months’ imprisonment. On 19 May 2000, the Court granted bail to the applicant pending the hearing and determination of his applications for leave to appeal against the conviction and the sentence imposed.

The facts upon which the applications fall to be determined have been set out in the reasons for judgment of Brooking, J.A. which I have had the advantage of reading. There is no need for me to repeat them.

The application for leave to appeal against conviction was initially based upon 5 grounds of which grounds 2 and 3 were divided into sub-grounds. Grounds 1 and 2 alleged that the trial had miscarried because of events which occurred during its course and which culminated in a direction which the judge eventually gave to the jury based upon the rule in Browne v. Dunn[1]. Ground 3A asserted that the learned judge had erred in his directions to the jury concerning the element, in the offence created by s.48, of “care, supervision or authority”. Section 48(1) creates an offence in the following form:

“A person must not take part in an act of sexual penetration with a 16 or 17 year old child to whom he or she is not married and who is under his or her care, supervision or authority.”

Ground 3B averred that the jury’s…

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 Howes [2000] VSCA 159
Case: [2000] VSCA 159
Decision Date: 11 September 2000

CaseChat Overview and Summary

The matter before the court was an appeal against conviction and sentence by the accused, Howes, a teacher, following his conviction for the offence of sexual penetration with a seventeen-year-old student. The case was heard in the Court of Appeal, Victoria. The appellant argued that the trial judge had erred in finding that the victim was under his "care, supervision or authority" at the time of the offence and that the sentence imposed was manifestly excessive. The respondent contended that the findings of the trial judge were correct and that the sentence was appropriate.

The court considered the legal issue of whether the victim was under the appellant’s "care, supervision or authority" as defined by the Crimes Act 1958. The court held that the words of the statute should be given their ordinary meaning and that the term "or" should not be read as "and". The court found that the appellant had authority over the victim in the school context, but this did not necessarily extend to all occasions outside of school. The court held that the appellant had not proven that the victim was not under his "care, supervision or authority" at the time of the offence. The court also considered the sentencing issue and held that the six-month imprisonment term was not manifestly excessive.

The court dismissed the appeal against conviction but allowed the appeal against sentence and substituted a sentence of six weeks imprisonment, to be served as a suspended sentence with a 12-month good behaviour bond. The court found that the failure to comply with the rule in Browne v. Dunn did not result in a miscarriage of justice.

Orders