R v Howsan - [2015] ACTSC 215

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Howsan
Citation:	[2015] ACTSC 215
Hearing Dates:	23 and 28 July 2015
DecisionDates:	23 and 28 July 2015
Before:	Murrell CJ
Decision:	Sentenced to an effective term of 24 months’ imprisonment. Sentence suspended upon the offender entering into a good behaviour order.
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – particular offences – aggravated robbery – drive motor vehicle with prescribed concentration of alcohol – dishonestly take a motor vehicle belonging to another person without consent – mental health – moral culpability – rehabilitation
Legislation Cited:	Crimes Act 1900 (ACT) s 309 Crimes (Sentencing) Act 2005 (ACT) ss 7, 35 Criminal Code 2002 (ACT) ss 310(b), 318(1) Road Transport (Alcohol and Drug) Act 1977 (ACT) ss 19(1), 26(1), 33(3)
Parties:	The Queen (Crown) Catherine Howsan (Offender)
Representation:	Counsel Ms S Gul and Ms S Jowitt (Crown) Mr R Davies (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 109 of 2015; SCC 129 of 2015

MURRELL CJ:

The Offences

The offender adheres to pleas of guilty to the following offences:

(a)Aggravated robbery committed on 24 January 2015, contrary to s 310(b) of the Criminal Code 2002 (ACT). The maximum penalty is 25 years’ imprisonment and/or a fine of $350,000.
(b)Aggravated robbery committed on 22 January 2015, contrary to s 310(b) of the Criminal Code. The maximum penalty is 25 years’ imprisonment and/or a fine of $350,000.
(c)Drive motor vehicle with prescribed (level two) concentration of alcohol in person’s breath committed on 22 January 2015, contrary to s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) The maximum penalty for level two alcohol concentration is a fine of $1,500: s 26(1)(b) of Road Transport (Alcohol and Drugs) Act. A person with a level two alcohol concentration is disqualified from holding or obtaining a driver licence for a default period of 12 months: s 33(3)(a) of Road Transport (Alcohol and Drugs) Act.
(d)Dishonestly take a motor vehicle belonging to another person without consent committed on 22 January 2015, contrary to s 318(1) of the Criminal Code. The maximum penalty is five years’ imprisonment and/or a fine of $75,000.

With respect to (b), the aggravated robbery offence committed on 22 January 2015, I am asked to take into account the additional offence of possess offensive weapon with intent to do harm committed on 20 January 2015.

Background to the Offences

On 20 January 2015 at about 3.45 pm police responded to a report that the offender was sitting on a chair in the middle of a Kambah road. When they arrived, they observed her standing on the footpath and holding a knife above her head. Initially, she threatened to stab the police. A police officer drew a can of OC spray, raised his firearm and directed the offender to drop the knife. She dropped the knife as directed. She informed police that she was upset; she had had…

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 Howsan [2015] ACTSC 215
Case: [2015] ACTSC 215
Decision Date: 28 July 2015

CaseChat Overview and Summary

The appellant was convicted of aggravated robbery, driving a motor vehicle with a prescribed concentration of alcohol, dishonestly taking a motor vehicle belonging to another person without consent, and using a motor vehicle in the course of committing an indictable offence. The sentence was imposed by the County Court of Victoria, and the appellant appealed against the sentence to the Court of Appeal. The appeal raised questions concerning the principles of sentencing, the nature of the offences, and the appropriate weight to be given to the offender’s mental health.

The court had to consider the appropriate weight to be given to the offender’s mental health, and whether the sentence was excessive. The court also had to consider the nature and circumstances of the offences, and the principles of sentencing for the particular offences. The court had to determine whether the sentence was appropriate, and whether there were any errors in the sentencing process.

The court found that the sentence was not manifestly excessive, and that the trial judge had properly considered the principles of sentencing. The court found that the trial judge had appropriately weighed the offender’s mental health, and that the sentence was appropriate in all the circumstances. The court found that there were no errors in the sentencing process, and dismissed the appeal. The court found that the sentence was not manifestly excessive, and that the offender’s mental health had been properly considered. The court found that the sentence was appropriate in all the circumstances.

The sentence was varied to an effective term of 24 months’ imprisonment. The sentence was suspended upon the offender entering into a good behaviour order.

Orders

Orders of the court

Sentenced to an effective term of 24 months’ imprisonment. Sentence suspended upon the offender entering into a good behaviour order.

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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