Howard v R

[2018] NZCA 633

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA189/2018
 [2018] NZCA 633

BETWEEN	KERSHAW NGATAPIRI HOWARD Appellant
AND	THE QUEEN Respondent

Hearing:	25 October 2018
Court:	Brown, Courtney and Katz JJ
Counsel:	J W Mackey for Appellant J E L Carruthers for Respondent
Judgment:	21 December 2018 at 12.30 pm

JUDGMENT OF THE COURT

A        The appeal is allowed.

BThe appellant’s sentence of 10 years and three months’ imprisonment for intentionally causing grievous bodily harm is quashed and substituted with a sentence of seven years and 10 months’ imprisonment, cumulative on the sentence for CRN 16044005935.

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REASONS OF THE COURT

(Given by Courtney J)

Introduction

1. In the early hours of 28 June 2015, there was an incident at an address in the Auckland suburb of Point England in which a young man, Owen Talatau, was shot in the face.  Following a trial before Judge R G Ronayne and a jury, the appellant, Kershaw Howard, was convicted of being party to causing grievous bodily harm with intent to do so and of presenting a firearm.  The Judge imposed a sentence of 10 years and three months’ imprisonment to be served cumulatively on a sentence of four years and two months’ imprisonment for aggravated robbery that Mr Howard was already serving.[1]

   [1]R v Howard [2018] NZDC 5820.

2. Mr Howard appeals the sentence on the basis that the Judge erred by:[2]

   (a)sentencing on an incorrect factual basis;

   (b)taking too high a starting point; and

   (c)failing to consider totality.

The offending

[2]Mr Howard also filed an appeal against conviction, but this was subsequently abandoned.

1. Mr Howard was 27 years old at the time of the offending.  The principal offender in the assault on Owen Talatau was Mr Howard’s 16-year-old neighbour, Tevita Tukia.

2. On the night of 27 June 2015, a group had gathered at the Talatau family home to socialise and watch a rugby game.  At some time after midnight, Mr Tukia walked past the address.  There was a scuffle between him and Owen Talatau’s friend, Allen Malau.  Mr Tukia was drunk.  Other people present told him to go home, which he did.

3. Some hours later, a neighbour of Tevita Tukia and Mr Howard saw Mr Tukia go to Mr Howard’s house and Mr Howard give Mr Tukia a rifle.  The two then drove off in Mr Howard’s white Mercedes.  At about 3 am, Owen Talatau saw Mr Tukia return to the Talatau property in the vehicle.  There seemed to be other people in the vehicle but only Tevita Tukia got out.  He was holding a metal object (possibly a machete) and stood outside the house hitting the front fence and screaming and cursing.  Eventually he got back into the vehicle and it drove away.

4. At about 3.30 am, the white Mercedes returned to the Talatau property.  There were at least three people in it, including Mr Howard, Mr Tukia and Mr Tukia’s father.  Those still present at the Talatau’s address included Owen Talatau and his…