Howard v The Queen - [2017] NZHC 2986

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2017-412-000049

CRI-2017-412-000056 [2017] NZHC 2986

BETWEEN
BYRON WILLIAM DAVID HOWARD

Appellant

AND

THE QUEEN Respondent

Hearing: 1 December 2017

Appearances:

E C Bulger for the Appellant
C E R Power for the Respondent

Judgment:

4 December 2017

JUDGMENT OF DUNNINGHAM J

[1] On 2 August 2017, Mr Howard was sentenced to two years’ imprisonment after he pleaded guilty to:

(a) intentional damage;1

(b) possession of an offensive weapon;2

(c) dangerous driving causing injury;3 and

1      Crimes Act 1961, s 269(3).
2      Crimes Act 1961, s 202A(4)(b)
3      Land Transport Act 1998, ss 7(2) and 36(1)(b).

HOWARD v THE QUEEN [2017] NZHC 2986 [4 December 2017]

(d) failing to stop and ascertain injury.4

[2] The appellant was also disqualified from holding a driver’s licence for a period of four years and ordered to pay sums in reparation and for emotional harm and Court costs.

[3] The appellant appeals on the grounds that the Judge erred by:

(a) failing to impose the least restrictive outcome when refusing to impose home detention;

(b) imposing a manifestly excessive disqualification period; and

(c) referring to two erroneous facts regarding the appellant’s background which may have influenced the outcome.

Background

[4] The appellant was previously employed by the victim and there was a disagreement over wages. On the evening of 14 July 2016, the appellant drove to where the victim had relocated to, to demand money he was owed from wages. He approached the victim’s residence and started banging on the front door.

[5] The victim informed the appellant that he should leave the address and that he did not want to have any arguments with him. The appellant threated and abused the victim for a short time, then went back to his vehicle. The victim thought the defendant had left the address. Approximately a minute later, the appellant began smashing all the front windows of the house using a crow bar.

[6] The victim feared for his safety and felt trapped in the house. The appellant shattered all the windows and damaged some of the window frames, as well as the
wooden frame to a sliding door.

4 Land Transport Act 1998, ss 22(1)(a) and 36(1)(c).

[7] The appellant went back to his vehicle and started to drive away. The victim came out of the house and was standing approximately one foot onto the road, away from the gutter, filming the defendant leaving in his vehicle. The appellant saw this happening and drove towards the victim, hitting him with his vehicle. The victim was knocked on top of the bonnet then slid off the vehicle and was left lying in pain on the footpath while the defendant drove away. The victim suffered pain and tenderness on parts of his right side and some bruising to the forearm. He also suffered some small lacerations to a toe and had glass fragments in his foot. Specialist intervention was required to…

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.

Continue reading Howard v The Queen

Details

AGLC: Howard v The Queen [2017] NZHC 2986
Case: [2017] NZHC 2986
Decision Date: 4 December 2017

CaseChat Overview and Summary

In this case, the appellant, Byron William David Howard, was appealing against his sentence of two years' imprisonment, a four-year disqualification from holding a driver's licence, and the requirement to pay reparations and emotional harm compensation. The appeal focused on three grounds: the refusal to impose home detention, the excessiveness of the disqualification period, and alleged errors in the facts considered by the sentencing judge. The court examined each of these issues in turn, beginning with the refusal to impose home detention.

The appellant argued that the refusal to impose home detention instead of a prison sentence constituted an error in failing to adopt the least restrictive outcome. The appellant's counsel submitted that the lack of opportunity to respond to the victim impact statement and the incorrect reference to the appellant being on bail at the time of the offence may have influenced the sentencing judge's decision. However, the court found that these alleged errors did not materially impact the sentencing exercise, as the judge had based his decision on the aggravating features of the offence, the impact on the victim, and the principles of denunciation and deterrence. The court concluded that the sentencing judge's decision was not in error, as the appellant had virtually no criminal history, and the pre-sentence report recommended home detention. The court held that the decision to impose a prison sentence was a matter of discretion, and the judge's decision was thorough and carefully canvassed the relevant issues.

The second issue was whether the four-year disqualification period was manifestly excessive. The appellant argued that the disqualification period was excessive, given his lack of driving convictions and the fact that this was his first appearance in court for an offence carrying disqualification as a potential penalty. The court noted that the principle objective of disqualification is public safety, and the extent of discretion available to the sentencing judge is less fettered than that in respect of conventional sentencing decisions. The court found that the four-year disqualification period was manifestly excessive in light of the charge the appellant faced and in the context of his offending. The court reduced the disqualification period from four years to two years, while maintaining the two-year imprisonment sentence.

In conclusion, the appeal was allowed in part, as the four-year disqualification period was manifestly excessive. The two-year imprisonment sentence remains, including any special conditions imposed on release from this short term of imprisonment.

Orders