Cowell v Police - [2022] NZHC 3088

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-000147

[2022] NZHC 3088

BETWEEN
KINGSTON TAHARUA COWELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 November 2022

Appearances:

K J Gray for the Appellant

L Fiennes for the Respondent

Judgment:

24 November 2022

JUDGMENT OF NATION J

Introduction

[1] Kingston Taharua Cowell pleaded guilty to charges of demanding with menaces,1 unlawful possession of ammunition,2 possession of a knife in a public place,3 and driving whilst forbidden.4 On 24 August 2022, Mr Cowell was sentenced by Judge Farish in the District Court to 21 months’ imprisonment on those charges with leave to apply for home detention.5 Mr Cowell appealed that sentence on the basis it was manifestly excessive.

1      Crimes Act 1961, s 239(2) – maximum penalty of seven years’ imprisonment.
2      Arms Act 1983, s 45(1) – maximum penalty of four years’ imprisonment and/or a fine of $5,000.
3      Summary Offences Act 1981, s 13A – maximum penalty of three months’ imprisonment or a fine of $2,000.
4      Land Transport Act 1998, s 52(1)(c) and (2) – maximum penalty of a $10,000 fine.
5      R v Cowell [2022] NZDC 16237.

COWELL v POLICE [2022] NZHC 3088 [24 November 2022]

Facts

[2] On 20 September 2021, Mr Cowell was served a Road Safety Directive Notice and forbidden from driving until he obtained an appropriate licence.

[3] At approximately 11.20 am on 5 March 2022, Mr Cowell arrived at a flat on Breens Road, Bishopdale, Christchurch, with two associates. The victim was visiting the address at the time. Mr Cowell entered a bedroom at the address where the victim was. Mr Cowell saw the victim’s keys on an Audi lanyard beside the victim and said “are those your keys?” The victim confirmed they were. Mr Cowell took the keys, knowing they belonged to the victim and without permission from him.

[4] Approximately five minutes later, Mr Cowell made the victim leave the bedroom and come into the lounge room where Mr Cowell’s two associates were. One of the associates was wearing a gang patch. Mr Cowell took the victim’s cell phone from him and gave him an ultimatum that he could let him take his phone or he could keep his phone and take a hiding. The victim did not want to be beaten up and yielded in duress to Mr Cowell’s threat of violence.

[5] Mr Cowell and his associates left the address in the victim’s Audi. He had no permission to take the vehicle. In the vehicle was a pair of Nike running shoes belonging to the victim.

[6]These events gave rise to a charge of demanding with menaces.

[7] At approximately 2.57 pm that day, Mr Cowell was driving the stolen Audi vehicle south on Leacroft Street, Christchurch. The vehicle was subsequently stopped by Police on Clotilda Place. This gave rise to a charge of driving while forbidden.

[8] Mr Cowell was placed under arrest and searched. He was wearing a…

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.

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Details

Case: [2022] NZHC 3088
Decision Date: 24 November 2022

CaseChat Overview and Summary

Kingston Taharua Cowell pleaded guilty to multiple charges, including demanding with menaces, unlawful possession of ammunition, possession of a knife in a public place, and driving while forbidden. He was sentenced to 21 months' imprisonment by Judge Farish in the District Court, with leave to apply for home detention. Cowell appealed the sentence, arguing it was manifestly excessive. The appeal was heard on 9 November 2022, and the judgment was delivered on 24 November 2022. The legal issues before the court were whether the starting point, uplifts, and discounts applied by the District Court were appropriate. The court examined each issue in turn, considering the relevant sentencing principles and case law. The court concluded that the District Court's sentence was appropriate and dismissed the appeal. The court found that the starting point of two years' imprisonment for the demanding with menaces charge was within the available range, considering the aggravating factors present. The court also found that the uplifts and discounts applied by the District Court were appropriate, and the total sentence of 21 months' imprisonment was not manifestly excessive. The appeal was dismissed, and the original sentence stood.

Orders