Howlett, Shaune Henry v Tasmania (State of)

• Jurisdiction: Tasmania
• Court: Supreme Court of Tasmania
• Judge: Crawford CJ,Tennent J,Wood J
• Judgment Date: 07 December 2009
• Docket Number: 522/2009
• Date: 07 December 2009

[2009] TASSC 105

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Crawford CJ, Tennent and Wood JJ

522/2009

Howlett, Shaune Henry

and

Tasmania (State of)

Aust Dig Criminal Law [3521]

Criminal Law — Appeal and new trial — Appeal against sentence — Grounds for interference — Sentence manifestly excessive or inadequate — Whether sentence of 15 months' imprisonment for assault manifestly excessive.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Crawford CJ

1 The appellant pleaded guilty to two counts of assault and was sentenced to imprisonment for 15 months with no eligibility for parole until he has served half the sentence. He appealed against the sentence on the ground of manifest excessiveness.

The circumstances of the offence

2 On the afternoon of 13 December 2008, he visited Risdon Prison with members of his family. The victim of the assaults, to whom I will refer as the complainant, was also visiting the prison with two male associates.

3 The appellant finished his visit and returned to the car park outside the prison's reception centre, where he waited for other members of his party to return before leaving in a motor vehicle.

4 A female member of his party came up and spoke to him. According to prosecuting counsel, she had just made a comment to one of three men in the prison reception area that had caused prison staff to concentrate CCTV on what happened next. The comment was to the effect: ‘Go and say that to Shaune, you mouthy little shit.’ The complainant was one of the three men, but the woman's comment was made to one of the other two, not him. According to defence counsel, one of those two men had made a disparaging comment to the woman about the appellant that ‘related to the fact that he was weak and about his physical attributes’. It is common ground that the appellant is not a weak man, but very well built.

5 The appellant decided to confront the man he had been told had spoken. He went up to the three men.

6 The complainant declined to speak to police about the incident and subsequently took the side of the appellant, expressing a wish that he not be charged. In a statement he provided to the appellant's legal practitioner, he said that words were exchanged between one of his companions and the appellant and that he stepped between the two and put his hands up to prevent the appellant coming forward. However, according to defence counsel, the complainant had his hands up in such a way that the appellant interpreted his actions as looking for a fight.

7 There was then an exchange of punches between the appellant and the complainant. It was at about that point that a security camera recorded what happened. Blows were swung by the two men. Some of them missed. However, four punches from the appellant connected with the complainant's head, causing him to fall down into some bushes. While he was down, the appellant kicked him in the head three times with his right boot.

8 The first count of assault relates to those three kicks. Because of the unresolved question concerning whether what had happened before then was a consensual fight, the sentencing judge disregarded the punches as being part of the assaults for which the appellant was to be sentenced.

9 The appellant left the complainant on the ground and appeared to chase off the two younger men. He then returned to the complainant, who was lying helpless on the ground, and kicked him inthe head again with his right boot. As prosecuting counsel said, the kick was delivered with force. It caused the complainant's head to snap back. The second count of assault relates to that kick.

10 The appellant then walked to his vehicle and left the area with associates. At the time of the incident a number of members of the public were nearby.

11 The complainant was dazed for a short time, but he was not seriously injured. Persons went to his assistance. A witness said that his mouth was bleeding and he was spitting blood from it and wiping the blood away with the back of his hand. The witness noticed a boot impression on his head. Counsel for the appellant asserted that the CCTV footage showed that he was bleeding from his nose and it was that blood being wiped away by him. In the footage, the complainant seemingly recovered after a few minutes and made his way to a vehicle. Subsequently, he drove away.

12 Police attempted to interview the appellant four days later, but he declined to make any comment. He was shown the CCTV footage. Two months later he was recorded saying to his brother on a telephone that he intended to plead guilty because there was nothing that could be done, he had watched the footage and it could not get any clearer. It is plain that by his pleas of guilty he was bowing to the inevitable.

13 In the statement the complainant gave to the appellant's legal practitioner, he said that he had known the appellant for five years; that they had been friends during that time, but not close friends; that there had never been any problem between them in the past; that the appellant had apologised to him for what happened; that he did not want the appellant prosecuted for the matter; that he considered it to be a personal matter; that there had been no further problems between them; that he suffered minor bruising and bleeding from his mouth or nose as a result of the incident and did not seek medical treatment; and that he had not been the subject of any threat, promise or inducement to make the statement.

The circumstances of the offender

14 The appellant was 25 years old at the time of the crimes and 26 when sentenced. He had a significant record for violence.

15 On 30 January 2000, when he was 16 years old, he committed the crime of causing grievous bodily harm, two assaults and destruction of property. He was dealt with by the Youth Justice Division of the Magistrates Court on 27 November 2000. There was an altercation at a party involving a female. He was not in attendance. The female said words to the effect, ‘you wait till Shaune finds out — I'm going to get Lee and you're going to all die’. Lee was a co-offender with the appellant in relation to what followed. About an hour later, the appellant went with others to the house where the altercation had occurred. The door was opened by a female. She was punched in the face and the appellant entered with the others. The group of intruders punched a man in the head, knocked him to the ground and then proceeded with a series of kicks and stomps to his head, leaving him unconscious and in a critical condition. Another female was punched and kicked and possibly hit with a piece of furniture. Damage was done to the house. The appellant was sentenced to sixteen months' detention for causing grievous bodily harm, nine months' detention respectively for each of the assaults and a community service order for the destruction of property. All of the detention was suspended on condition that he commit no offence punishable by imprisonment for two years. A probation order was also made.

16 On 1 September 2000, while on bail awaiting the hearing of those charges, he again committed the...