R v Howsan (No. 2) - [2016] ACTSC 41

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Howsan (No. 2)
Citation:	[2016] ACTSC 41
Hearing Date:	4 March 2016
DecisionDate:	9 March 2016
Before:	Refshauge J
Decision:	1. Ms Howsan is convicted of the aggravated robbery on 27 September 2015 (CC 15/9359). 2. The commission of the aggravated robbery on 27 September 2015 breaches the GBO made on 22 September 2015. 3. The Good Behaviour Order of 22 September 2015 is cancelled. 4. The conviction for aggravated robbery on 22 January 2015 (CC 15/4820) is confirmed. 5. Ms Howsan is sentenced to 18 months imprisonment commencing on 9 September 2015. 6. The conviction for aggravated robbery on 24 January 2015 (CC 15/1190) is confirmed. 7. Ms Howsan is sentenced to 18 months imprisonment commencing on 9 March 2016. That is to be cumulative as to 6 months on first sentence for aggravated robbery. 8. Ms Howsan is convicted of damaging property on 17 December 2014 (CC 15/8075). 9. Ms Howsan is sentenced to 12 months imprisonment commencing on 9 May 2016. That is to be cumulative as to 2 months on the sentence for aggravated robbery on 24 January 2015. 10. For the aggravated robbery on 27 September 2015 (CC 15/9359), Ms Howsan is sentenced to 18 months imprisonment commencing on 30 May 2016. That is to be cumulative as to 6 months on the sentence for damaging property and backdated to take into account pre-sentence custody of 163 days. 11. Ms Howsan is convicted of preventing lawful apprehension with a threat (CC15/10574). 12. Ms Howsan is sentenced to 9 months imprisonment commencing on 30 March 2017. That is to be cumulative as to 1 month on sentence for the aggravated robbery of 27 September 2015. 13. That is a total sentence of 2 years, 3 months, 21 days. 14. A non-parole period of 12 months be set, to commence on 9 September 2015 and expire on 8 September 2016. 15. It be recommended to the Sentence Administration Board that they consider a condition to maintain Ms Howsan’s participation in the methadone program and possibly counselling with Mr Panozzo, if that is appropriate.
Catchwords:	CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentencing – re-sentencing – aggravated robbery – damaging property – preventing lawful apprehension with threat – damage using motor vehicle – threat with knife – threat to police officer – offender on conditional liberty – breach of Good Behaviour Order – breach through further offending – delay in prosecution – serious mental illness – drug abuse – co-morbidity – application of Verdins principles
Legislation Cited:	Crimes Act 1900 (ACT), s 32(2)(b) Crimes (Sentence Administration) Act 2005 (ACT), ss 86(1)(a), 110 Crimes (Sentencing) Act 2005 (ACT), ss 7, 33 Criminal Code 2002 (ACT), ss 310(b), 318(1), 403(1)
Cases Cited:	Guy v Anderson [2013] ACTSC 5 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 R v Howsan [2015] ACTSC 215 R v Verdins

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 (No. 2)

Details

AGLC: R v Howsan (No. 2) [2016] ACTSC 41
Case: [2016] ACTSC 41
Decision Date: 9 March 2016

CaseChat Overview and Summary

The case of R v Howsan (No. 2) involved the defendant, Ms Howsan, who faced various charges including aggravated robbery, damaging property, and preventing lawful apprehension with a threat. The proceedings took place in the relevant Australian court, which examined the validity of the charges, Ms Howsan’s previous convictions, and the impact of her mental health and drug abuse on her sentencing. The court was required to determine the appropriate sentences for each offence, taking into account the Verdins principles, the cumulative effect of sentences, and the necessity to balance Ms Howsan’s mental health needs with the requirements of justice.

The legal issues before the court included the proper application of Verdins principles to ensure that Ms Howsan’s sentences were proportionate to her offences, the cumulative effect of sentences, and the appropriate consideration of Ms Howsan’s mental health and drug abuse as mitigating factors. Additionally, the court had to assess whether the delay in prosecution and Ms Howsan’s breach of a previous Good Behaviour Order warranted any adjustments to the sentences. The court also needed to address the appropriate length of the non-parole period and any recommendations for Ms Howsan’s ongoing treatment and rehabilitation.

In its reasoning, the court carefully considered each offence, noting the cumulative effect of the sentences and the need to ensure that Ms Howsan’s mental health and drug abuse were adequately addressed. The court found that the offences warranted a total sentence of 2 years and 3 months, with a non-parole period of 12 months. The court also recommended that Ms Howsan’s participation in the methadone program and any necessary counselling be considered by the Sentence Administration Board. The court concluded that the sentences should be cumulative to certain extents and should be backdated to account for pre-sentence custody.

The final orders of the court included confirming Ms Howsan’s convictions for the various offences, setting specific sentences for each offence that were cumulative to some extent, and establishing a non-parole period of 12 months. The court also recommended that Ms Howsan’s ongoing treatment and rehabilitation be considered, ensuring that her mental health needs were addressed as part of her sentence. The cumulative effect of the sentences was carefully calculated to ensure that Ms Howsan’s total sentence was just and proportionate to her offences.

Orders

Orders of the court

1. Ms Howsan is convicted of the aggravated robbery on 27 September 2015 (CC 15/9359).

2. The commission of the aggravated robbery on 27 September 2015 breaches the GBO made on 22 September 2015.

3. The Good Behaviour Order of 22 September 2015 is cancelled.

4. The conviction for aggravated robbery on 22 January 2015 (CC 15/4820) is confirmed.

5. Ms Howsan is sentenced to 18 months imprisonment commencing on 9 September 2015.

6. The conviction for aggravated robbery on 24 January 2015 (CC 15/1190) is confirmed.

7. Ms Howsan is sentenced to 18 months imprisonment commencing on 9 March 2016. That is to be cumulative as to 6 months on first sentence for aggravated robbery.

8. Ms Howsan is convicted of damaging property on 17 December 2014 (CC 15/8075).

9. Ms Howsan is sentenced to 12 months imprisonment commencing on 9 May 2016. That is to be cumulative as to 2 months on the sentence for aggravated robbery on 24 January 2015.

10. For the aggravated robbery on 27 September 2015 (CC 15/9359), Ms Howsan is sentenced to 18 months imprisonment commencing on 30 May 2016. That is to be cumulative as to 6 months on the sentence for damaging property and backdated to take into account pre-sentence custody of 163 days.

11. Ms Howsan is convicted of preventing lawful apprehension with a threat (CC15/10574).

12. Ms Howsan is sentenced to 9 months imprisonment commencing on 30 March 2017. That is to be cumulative as to 1 month on sentence for the aggravated robbery of 27 September 2015.

13. That is a total sentence of 2 years, 3 months, 21 days.

14. A non-parole period of 12 months be set, to commence on 9 September 2015 and expire on 8 September 2016.

15. It be recommended to the Sentence Administration Board that they consider a condition to maintain Ms Howsan’s participation in the methadone program and possibly counselling with Mr Panozzo, if that is appropriate.

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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