Howe v Police - [2021] NZHC 2087

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-485-49

[2021] NZHC 2087

DARWIN HOWE

v

NEW ZEALAND POLICE

Hearing: 5&12 August 2021

Counsel:

S J McDonald for Appellant M Shaw for Respondent

Judgment:

12 August 2021

JUDGMENT OF CHURCHMAN J

Introduction

[1] On 8 July 2021, Mr Howe was sentenced in the Porirua District Court for the following charges:1

(a)1 x charge of unlawfully getting into a motor vehicle;

(b)3 x charges of driving while disqualified (third or subsequent);

(c)1 x charge of possession of two methamphetamine pipes;

1 Police v Howe [2021] NZDC 13856.

HOWE v NEW ZEALAND POLICE [2021] NZHC 2087 [12 August 2021]

(d)1 x charge of possession of a Class A controlled drug (methamphetamine);

(e)1 x charge of receiving property over $500; and

(f)1 x charge of dangerous driving.

[2] For these charges, Mr Howe was sentenced to 13 months’ imprisonment. The Judge also granted Mr Howe leave to apply for home detention to a suitable rehabilitation address and disqualified him from driving for 18 months.

[3]Mr Howe now appeals the sentence, on the grounds that:

(a)the sentence of 13 months’ imprisonment was manifestly excessive;

(b)the Judge did not sufficiently turn her mind to a non-custodial sentence pursuant to ss 8(g) and 16 of the Sentencing Act 2002;

(c)the Judge did not place sufficient weight on the recommendations in the Provision of Advice to Courts report (PAC report); and

(d)the Judge erred in determining that home detention was not an available end sentence.

[4]The police oppose the appeal.

Background

Factual background

[5] In the early morning of 15 February 2021, Mr Howe was driving a vehicle down State Highway One, despite being disqualified from driving at the time. He was stopped by police at a COVID-19 checkpoint and asked to produce his driver’s licence. He immediately admitted that he was disqualified and complied with police instructions. The vehicle was impounded and Mr Howe was arrested, resulting in the driving while disqualified charge.

[6] On 9 March 2021, while Mr Howe was on bail for his 15 February driving while disqualified charge (and still disqualified), he drove down State Highway One near Paremata in the early hours of the morning. Mr Howe saw a police vehicle and accelerated away at speed. The police followed and observed him travelling at 170 kilometres per hour. Mr Howe also turned his lights off as he continued to travel at high speeds away from the police. This resulted in an additional driving while disqualified charge, and a dangerous driving charge.

[7] On 19 March 2021, Mr Howe was caught driving a stolen vehicle with stolen number plates in the early hours of the morning. This resulted in the final driving while disqualified charge, and the receiving property charge (in respect of the stolen licence plates affixed to the stolen car).

[8] On 24 March 2021 at 17:15pm, Mr Howe was in the driver’s seat of a parked vehicle in Paraparaumu (in…

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 Howe v Police

Details

AGLC: Howe v Police [2021] NZHC 2087
Case: [2021] NZHC 2087
Decision Date: 12 August 2021

CaseChat Overview and Summary

In this case, Mr Howe appeals the sentence imposed on him by the Porirua District Court, contending that the sentence of 13 months’ imprisonment was manifestly excessive, and that the sentencing judge did not sufficiently consider a non-custodial sentence. The New Zealand Police opposed the appeal. The appeal was dismissed. The starting point of 18 months’ imprisonment was consistent with authority and the various discounts given fully recognised all the positive factors the Court was obliged to take into account. While home detention was potentially an available option, the risk to the community was just too great given Mr Howe’s pattern of repetitive offending, including repeat offending while on bail. The sentencing judge granted Mr Howe leave to apply for home detention if he could provide an address which would enable him to undertake a residential rehabilitation programme.

Orders