Queen v Howson [2001] FCA 114 (12 February 2001)

Last Updated: 23 February 2001

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 on that point or to examine the refinements of decisions such as R v Whitnall (1993) 68 A Crim R 119 which might otherwise be involved in accepting the Crown's submission. I say that because, in my view, the chronology of events is such that his Honour was perfectly entitled to make the order of recognisance that he did, both in view of the unexplained delay which had taken place in the matter, and the subjective factors to which his Honour referred in his judgment.

4 As I have said, the false certificate in question was given in June 1994. The information upon which the respondent was convicted was laid on 2 May 2000. There is no explanation in the papers before us as to the reason for the delay and no evidence was called before his Honour to give any such explanation. We have been told from the bar table that the respondent was away from Australia for some period in the United States, that when he returned in September 1999 he was charged with an offence against s 29D of the Crimes Act and that the present charge resulted from a change of charge at committal. To the extent that this may properly be taken into account, it seems to me to be perfectly neutral as to what has occurred between June 1994 and the present time. Indeed, if we are entitled to take account of the fact that a s 29D charge was dropped in return for a plea of guilty on a s 29B charge, that would not, in my view, assist the Crown in this appeal.

5 Any person charged with an offence which took place six years ago (and now rising seven) will necessarily suffer an enormous disturbance, having in mind the events and circumstances in life in the intervening period. The respondent here is no exception and his re-arrangements of life since June 1994 have been very considerable. I do not need to recount in this judgment the relevant subjective circumstances which were set out in his Honour's judgment. Suffice to say that the respondent has made for himself a new life in the United States of America and still suffers from some residual medical and/or psychiatric problems. In my opinion it would be not an appropriate exercise of our discretion to intervene now to impose any form of actual custodial sentence in the very particular circumstances of this case.

6 I do not think that it is helpful to speculate as to what the appropriate sentence would have been if this matter had been dealt with in a timely fashion. That was not the situation which was before his Honour and it is not the situation before us. In my opinion, the appeal should be dismissed given the unexplained delay which has occurred, and the subjective circumstances of the appellant. I might add that there seems to have been a flimsy basis for a charge of a breach of s 29B in this case, taking into account the rather amorphous benefit which was alleged.

7 When I add all of those things together it seems to me that the Crown has not been able to establish that his Honour's sentencing discretion was wrongly exercised in the present case and I would dismiss the appeal.

BEAUMONT ACJ:

8 I agree that the appeal should be dismissed, essentially by virtue of the delay involved. The sentencing judge relied upon eight mitigating circumstances including delay. However, one of the factors that his Honour mentioned, the second, was described by his Honour as follows:

"Secondly, he committed the offence at a time when deductions had been obtained, representations had previously been made, legitimate expectations of investors had been raised and he was faced with the unpalatable alternative of revealing that there had been a significant breach of faith."

9 With all respect to his Honour, I would not regard that as a mitigating circumstance. It certainly was true that there appeared to have been a breach of faith on his part, but to my mind, that would only impose upon him an obligation to disclose with candour to all involved (the investors and, of course, the Taxation Office itself) what the truth and reality was. However, as I have said, there were eight mitigating circumstances, including the question of delay. For the reasons given by Gyles J, I agree that this factor alone leads to the conclusion that we should dismiss this Crown appeal.

MILES J:

10 I agree.

BEAUMONT ACJ:

11 The order of the court therefore is appeal dismissed, with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Beaumont, Miles and Gyles .

Associate:

Dated: 22 February 2001

Counsel for the Applicant:	Mr D Fagan SC
Solicitor for the Applicant:	Commonwealth Director of Public Prosecutions
Counsel for the Respondent:	Mr BE Walters
Solicitor for the Respondent:	Slades & Parsons
Date of Hearing:	12 February 2001
Date of Judgment:	12 February 2001