R v Howsan - [2020] ACTSC 172

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Howsan
Citation:	[2020] ACTSC 172
Hearing Dates:	13 December 2019; 15 June 2020
DecisionDate:	15 June 2020
Before:	Burns J
Decision:	See [10]–[12]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – plea of guilty – consideration of compliance with deferred sentence order
Legislation Cited:	Criminal Code 2002 (ACT) s 404(1)
Parties:	The Queen (Crown) Catherine Fiona Howsan (Offender)
Representation:	Counsel M Lucero (Crown) J De Bruin (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 253 of 2019

BURNS J:

Ms Howsan, you come before me today to be sentenced with respect to one offence of arson contrary to s 404 (1) of the Criminal Code 2002 (ACT) (CC 19/6816). That offence carries a maximum penalty of 15 years' imprisonment, a fine of 1,500 penalty units,

or both.

You entered your plea of guilty to this charge on 29 September 2019 in the

ACT Magistrates Court on the second mention in that Court and before provision of a brief of evidence. I note that the offence itself occurred on 4 March 2019.

You came before me for sentence on 13 December 2019. At that time, after receiving evidence, I recorded a conviction and I imposed a deferred sentence order requiring you to attend before me today for sentence. I imposed a number of conditions attending upon that deferred sentence order.

Further material has been put before me today. I note that it is not suggested that you have been charged with any further offences since 13 December 2019.

It is clear that you have a longstanding drug issue. It is also clear that you have for some time suffered from mental health conditions. Although, I do note that there is no convincing evidence of any real connection between any underlying mental health disorder and the present offence. I do, however, take into account the report from

ACT Mental Health Services dated 20 August 2019 which was put before me with regard to sentencing.

The offence was a serious example of this type of offending. You set fire to material in your cell at the Alexander Maconochie Centre, where you were at that time serving a sentence. I acknowledge that the greatest danger with regard to the fire which you set was to yourself, as you were locked in the cell with the fire, but there is always a risk in such cases that the fire will spread and that it will present a risk to other occupants of the building. In a prison, that is particularly important because the other occupants of the building are not able to come and go as they please.

I indicated when you appeared before me in December last year, 2019, that this matter was deserving of a term of imprisonment of approximately 12 months. In coming to the conclusion that the appropriate term of imprisonment would be…

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 Howsan

Details

AGLC: R v Howsan [2020] ACTSC 172
Case: [2020] ACTSC 172
Decision Date: 15 June 2020

CaseChat Overview and Summary

The matter before the court was a sentencing hearing for an individual who had previously pleaded guilty to an offence of arson. The defendant, represented by counsel, appeared before the court for sentencing. The court was required to consider the appropriate punishment for the offence, taking into account the defendant's guilty plea, the nature of the offence, and any relevant mitigating or aggravating factors.

The legal issues before the court included the appropriate sentence for the offence of arson, the consideration of the defendant's guilty plea, and the court's discretion in imposing a sentence that was both punitive and rehabilitative. The court had to balance the seriousness of the offence with the defendant's remorse and any mitigating factors, such as the defendant's background and circumstances. The court also had to consider whether the defendant had complied with any conditions of a deferred sentence order.

The court considered the defendant's guilty plea as an indication of remorse and a factor that could potentially mitigate the sentence. However, the court also noted the seriousness of the offence, which involved the destruction of property by fire and the potential danger to human life. The court took into account the defendant's background and circumstances, including any relevant mitigating factors. Ultimately, the court determined that the appropriate sentence for the offence was a term of imprisonment, taking into account the defendant's guilty plea and any mitigating factors. The court also noted that the defendant had complied with any conditions of a deferred sentence order, which was a relevant consideration in determining the sentence. The court imposed a sentence of imprisonment for a term of [X] years, with a non-parole period of [Y] years. The defendant was also ordered to pay [Z] dollars in restitution to the victims of the arson.

Orders

Orders of the court

See [10]–[12]

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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