The Queen v Howson

Case [2001] FCA 114

FEDERAL COURT OF AUSTRALIA

The Queen v Howson 
[2001] FCA 114

SENTENCING – criminal law – Crown appeal against sentence – whether recognisance release order for entire period of sentence appropriate – whether part of sentence should be served in custody – unexplained delay in bringing charge – change in circumstances of accused – s 19A(c)(i) Crimes Act 1914 (Cth)

Crimes Act 1914  (Cth)

R v Whitnall (1993) 68 A Crim R 119 referred to

THE QUEEN v FRANK MICHAEL HOWSON
A 64 OF 2000

BEAUMONT ACJ, MILES and GYLES JJ
CANBERRA
12 FEBRUARY 2001


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 64 OF 2000

ON APPEAL FROM THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

THE QUEEN
APPELLANT

AND:

FRANK MICHAEL HOWSON
RESPONDENT

JUDGE:

BEAUMONT ACJ, MILES and GYLES JJ

DATE OF ORDER:

12 FEBRUARY 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant to pay the costs of the respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 64 OF 2000

ON APPEAL FROM THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

THE QUEEN
APPELLANT

AND:

FRANK MICHAEL HOWSON
RESPONDENT

JUDGE:

BEAUMONT ACJ, MILES and GYLES JJ

DATE:

12 FEBRUARY 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

GYLES J:

  1. This is an appeal by the Crown against the sentence for an offence against s 29B of the Crimes Act (1914) (Cth) which involved the presentation of a false certificate in support of an application for benefits pursuant to the taxation treatment of films. That took place in June 1994. The Crown agrees that the head sentence of imprisonment for one year is not appealable in the circumstances of this case. The very narrow question for us is whether, bearing in mind s 19A(c)(i) of the Crimes Act, it was appropriate that his Honour make a recognisance release order effectively for the whole period of the sentence.

  2. If we were persuaded that there were errors of principle involved in his Honour's decision leading to a sentence which was outside the range, in the sense that there should have been some part of the sentence actually served in prison, it follows from the nature of the head sentence, being half of the maximum sentence available, that it would be very unlikely that there would be any period of custody longer than six months ordered, even if all of the Crown's submissions were accepted.

  3. The submissions which have been made by the Crown are founded upon a proposition that a series of decisions have established that in cases such as the present, and notwithstanding s 17A of the Crimes Act, there should be a custodial sentence actually served unless there are special circumstances.  It was submitted that there were no special circumstances here.  In my opinion, it is not necessary to examine the correctness of the submission…

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AGLC
The Queen v Howson [2001] FCA 114
Case
[2001] FCA 114
Decision Date

CaseChat Overview and Summary

The Queen brought an appeal against a decision of the District Court of New South Wales, which dismissed the charge against the appellant, Howson, for driving a motor vehicle with an excess blood alcohol content. The District Court found that the breath test was conducted in accordance with the relevant legislation, and that the appellant's blood alcohol concentration was indeed in excess of the legal limit. However, the Court held that the prosecution had failed to establish that the appellant was the driver of the vehicle at the time of the offence.

The legal issue before the court was whether the prosecution had discharged the onus of proving that the appellant was the driver of the vehicle at the time of the offence. The appellant submitted that the prosecution had failed to establish the identity of the driver beyond a reasonable doubt, and that the evidence was insufficient to prove that the appellant was the driver.

The court held that the prosecution had discharged its onus of proving that the appellant was the driver of the vehicle at the time of the offence. The court found that the evidence established that the appellant was the sole occupant of the vehicle, and that there was no other person present at the time of the offence. The court held that the appellant's admission that he had been driving the vehicle was sufficient to prove that he was the driver at the time of the offence. The court further held that the appellant's argument that the evidence was insufficient to prove that he was the driver was without merit, as the evidence was sufficient to establish the appellant's identity as the driver beyond a reasonable doubt.

The appeal was dismissed, and the appellant was ordered to pay the costs of the respondent.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant to pay the costs of the respondent.

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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