Howe v Police

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA532/2021
[2021] NZCA 604

BETWEEN	DARWIN MARLIN HOWE Appellant
AND	NEW ZEALAND POLICE Respondent

Court:	Miller, Goddard and Katz JJ
Counsel:	M G Robinson and S J McDonald for Appellant A H N Forward-Taua for Respondent
Judgment: (On the papers)	12 November 2021 at 4.30 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal to this Court against sentence is granted.
BThe Crown must file its submissions on the appeal by Friday, 19 November 2021
CA one hour fixture will be allocated by the Registrar in the week beginning 22 November 2021.

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REASONS OF THE COURT

(Given by Goddard J)

On 8 July 2021 Mr Howe was sentenced in the District Court to 13 months’ imprisonment, with leave to commute the sentence to home detention should Mr Howe obtain a place in a suitable residential rehabilitation facility.[1] His appeal to the High Court against that sentence was dismissed by Churchman J on 12 August 2021.[2]
[1]Police v Howe [2021] NZDC 13856.
[2]Howe v Police [2021] NZHC 2087.
Mr Howe seeks leave to bring a second appeal against sentence to this Court, under s 253 of the Criminal Procedure Act 2011.
We grant leave to Mr Howe to bring a second appeal against sentence under s 253 of the Criminal Procedure Act. Counsel should focus their submissions on whether a miscarriage of justice occurred as a result of an incorrect assumption about the potential availability of a residential rehabilitation facility as an address at which to serve a sentence of home detention, and/or as a result of a failure to consider whether the risk to public safety posed by Mr Howe could be adequately addressed by a sentence of home detention, with GPS monitoring. However that does not preclude counsel from addressing other issues.
The appeal needs to be heard promptly given the 13 month sentence, of which Mr Howe has already served some 4 months. The Court already has the benefit of detailed submissions for Mr Howe on the application for leave to appeal. Those will be taken as his submissions on appeal. The Crown must file submissions on the appeal by Friday 19 November 2021. A one hour fixture will be allocated in the week beginning 22 November 2021.

Solicitors:
Robinson Legal, Wellington for Appellant
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

The appellant, Mr Darwin Marlin Howe, sought leave to appeal against his sentence imposed by the District Court. The District Court had sentenced Mr Howe to 13 months’ imprisonment, with leave to commute the sentence to home detention if he obtained a place in a suitable residential rehabilitation facility. Mr Howe’s initial appeal to the High Court was dismissed. Mr Howe now seeks leave to bring a second appeal against his sentence to the Court of Appeal of New Zealand. The Court granted leave for Mr Howe to bring a second appeal under s 253 of the Criminal Procedure Act 2011. The Court specified that the appeal submissions should focus on whether a miscarriage of justice occurred due to incorrect assumptions about the availability of a residential rehabilitation facility and/or a failure to consider whether Mr Howe’s risk to public safety could be adequately addressed by a sentence of home detention with GPS monitoring.

The legal issue before the Court of Appeal was whether Mr Howe's second appeal against sentence should be permitted under s 253 of the Criminal Procedure Act. The Court considered the arguments presented by Mr Howe’s counsel, focusing on potential errors in the sentencing process, particularly concerning the assumptions made about the availability of a residential rehabilitation facility and the adequacy of home detention with GPS monitoring to address public safety concerns. The Court noted that the initial appeal had already been heard by the High Court and that the 13-month sentence, of which Mr Howe had already served four months, necessitated a prompt hearing. The Court granted Mr Howe leave to appeal and directed the Crown to file its submissions by a specified date, with the appeal to be heard within a week.

In granting Mr Howe leave to bring a second appeal, the Court of Appeal highlighted the need for a prompt hearing due to the significant portion of the sentence already served. The Court emphasised that the appeal submissions should concentrate on the identified issues but allowed for the possibility of addressing other concerns. The Crown was required to file its submissions by a specified date, and a one-hour fixture was allocated for the appeal hearing in the week beginning 22 November 2021. The Court thus provided a clear directive for the next steps in the appeal process, ensuring that the issues raised by Mr Howe could be thoroughly examined.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established