Howell v Police - [2014] NZHC 1060

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-000017 [2014] NZHC 1060

CLYDE MATHEW HOWELL Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 5 May 2014

Appearances:

Greg Burt for the Appellant
Andrew Hill for the Respondent

Judgment:

20 May 2014

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by on 20 May 2014 at 4:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

HOWELL v NEW ZEALAND POLICE [2014] NZHC 1060 [20 July 2014]

Introduction

[1] The appellant, Clyde Mathew Howell, was sentenced to 12 months’ imprisonment in the Rotorua District Court on 18 March 2014. He pleaded guilty on one charge of assault with intent to injure and one charge of wilful damage. He appeals against that sentence.

Facts

[2] The events giving rise to the charges occurred in December 2013. The appellant believed his partner was having an affair with the victim. Impersonating his partner he texted the victim and obtained the latter’s address and when he would be home.

[3] The appellant, intending to confront the victim for the purpose of determining the truth or otherwise of the relationship, drove to the victim’s home which was some 45 minutes away.

[4] On arriving at the victim’s address he knocked on the door. It was answered by the victim who introduced himself. The appellant told the victim he was the partner of the woman the victim had been sleeping with. The victim responded that the appellant was wrong and invited him inside to discuss it.

[5] The two men sat down and began to talk. At one point the appellant said he wanted to kill someone. Understandably, the victim felt intimidated and moved to get his mobile telephone.

[6] The appellant then punched him causing him to fall to the ground. He stood over him and, according to the summary of facts, pummelled him with a barrage of punches.

[7] The victim pleaded for the appellant to stop and attempted to get up. He was again hit to the ground.

[8] The victim made his escape through a ranch slider, grazing his knees as he escaped.

[9] The appellant took the victim’s cell phone and left the scene.

[10] As a result of the attack the victim received a cut to the top of his head, swelling and bruising to his cheek and nose. The nail from his big toe was torn off. He suffered a sore back and sternum.

[11] The appellant pleaded guilty on 5 February 2014 on his third appearance.

District Court decision

[12] Although the sentencing Judge acknowledged the strong submissions made by the appellant’s counsel that he be kept in the community on an electronically monitored sentence and taking into account a letter of apology, the Judge observed that the weight of the previous convictions left him unable to reach a position where the balance was tipped in favour of an electronically monitored sentence.

[13] The Judge referred to the appellant’s nine previous…

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 Howell v Police

Details

AGLC: Howell v Police [2014] NZHC 1060
Case: [2014] NZHC 1060
Decision Date: 20 May 2014

CaseChat Overview and Summary

In the case of Howell v Police, Clyde Mathew Howell appealed against his sentence of 12 months’ imprisonment for assault with intent to injure and wilful damage. The appeal was heard in the High Court of New Zealand Rotorua Registry. Howell argued that he should have been sentenced to home detention instead of imprisonment.

The legal issues the Court needed to decide were whether the sentencing Judge made an error in failing to consider home detention and whether Howell's previous efforts at rehabilitation should have been taken into account. The Court had to consider the appellant's previous convictions and the circumstances of the offending. The Court also needed to determine if the Judge made an error in not identifying a starting point for the offending or any adjustments.

The Court found that the sentencing Judge considered a community-based sentence but did not refer to Howell's attempts at rehabilitation. The Court noted that Howell had enrolled in various rehabilitation programmes prior to imprisonment and expressed remorse. However, the Court was not satisfied that the proposed residence for home detention was suitable. Therefore, the Court allowed Howell to apply for the cancellation of the sentence of imprisonment and substitution of home detention if he finds a suitable residence at a later date. Otherwise, the sentence remains unchanged.

In conclusion, the Court allowed Howell to appeal against his sentence of imprisonment and ordered that it may be substituted with home detention if a suitable residence is found. Otherwise, the original sentence stands.

Orders