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21
Court of Criminal Appeal 23 August 2001

R v Howard

[2001] NSWCCA 309

Assault & violenceHomicide
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE MANSLAUGHTER DEATH OF CHILD VICTIM CAUSED BY SHAKING SENTENCE CUSTODY

Citation: Howard v R [2001] NSWCCA 309
Court: NSW Court of Criminal Appeal
Date: 23 August 2001
Judges: Wood CJ at CL, Beazley JA, Sperling J

Background

The appellant pleaded guilty to the manslaughter of an eight-month-old infant who died after being shaken. The child was the son of the appellant's partner, and was in the appellant's care at the time of the fatal incident in September 1996. Death was caused by severe shaking that produced brain and retinal haemorrhage.

The sentencing judge in the Supreme Court imposed a term of seven and a half years with a non-parole period of five and a half years, backdated to 22 August 1999. The appellant had a prior conviction for assault occasioning actual bodily harm to his own infant daughter, injuries also consistent with shaken baby syndrome, which the sentencing judge took into account as heightening the appellant's awareness of the dangers of rough handling of infants.

The appellant sought leave to appeal against sentence on three grounds: that insufficient weight was given to his guilty plea, that inadequate allowance was made for time spent in protective and strict custody, and that the sentencing judge failed to account for two periods of pre-sentence custody.

  • Whether a discount of approximately 10% for the guilty plea fell outside the appropriate range in the circumstances
  • Whether the sentencing judge made insufficient allowance for the hardship of time spent in protective and strict custody
  • Whether the sentencing judge erred by failing to reflect two periods of pre-sentence custody in the sentencing orders

Decision

On the plea discount, the Court accepted that the matter was complex. The charge had been upgraded from manslaughter to murder by ex-officio indictment, and the plea of guilty to manslaughter was entered once the opportunity arose in early 2000. The sentencing judge found that considerable court time had been saved and that witnesses and jurors had been spared inconvenience and distress. The Court held that a discount of approximately 10% was, in the circumstances of this case, not inadequate, noting the strength of the Crown case and the terms of the guideline judgment in Thomson and Houlton.

On the question of protective and strict custody, the Court found the sentencing judge had expressly acknowledged those conditions as adding to the burdensome nature of the imprisonment. No separate appellable error was established on this ground.

On pre-sentence custody, the Court identified a clear error. Two periods of custody prior to the commencement of the backdated sentence had not been demonstrably reflected in the sentencing order, and no reason was given for omitting them. The Court found this constituted error having regard to the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 and established case law. The appropriate correction was to backdate both the head sentence and the non-parole period by one month and fifteen days, to commence on 7 July 1999. Sperling J added that, while he would not suggest 10% is always appropriate for a plea entered well before trial, the overall sentence with the custody adjustment was not one he would disturb under s 6(3) of the Criminal Appeal Act 1912.

Orders Made

  • Leave to appeal granted
  • Original sentence quashed
  • Appellant sentenced to imprisonment for seven and a half years, commencing 7 July 1999
  • Non-parole period of five years and six months, commencing 7 July 1999 and expiring 6 January 2005
  • Earliest eligible parole date: 7 January 2005

Key Takeaways

  • Where pre-sentence custody periods are not reflected in a sentencing order, and no reason is given for their omission, error is established and the Court of Criminal Appeal will intervene to backdate the sentence accordingly.
  • A guilty plea discount of approximately 10% may be appropriate where the Crown case is strong and the plea is, in substance, an acceptance of the inevitable, provided the sentencing judge does not impermissibly link the strength of the case to the utilitarian value of the plea.
  • Sperling J noted that a 10% discount would not ordinarily be appropriate for a plea entered significantly before a trial date, though the specific circumstances here did not warrant a lesser overall sentence.
  • Prior convictions involving similar conduct towards a victim in the same vulnerable category can properly be taken into account at sentencing, not as additional punishment, but as evidence that the offender had heightened awareness of the relevant risk.
  • Under ss 44(2), 47(2), and 47(3) of the Crimes (Sentencing Procedure) Act 1999, sentencing courts are required to account for pre-sentence custody, whether by backdating the commencement date or by a reduction at the other end of the sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 44(2), 47(2), 47(3)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383 (guideline judgment on guilty plea discounts)
- R v Lo (2001) NSW Court of Criminal Appeal
- MacDonald NSWCCA, 12 December 1995
- McHugh (1985) 1 NSWLR 588
- Deeble NSWCCA, 19 September 1991
- English (2000) NSWCCA 245