Legal Research
Cases
Howes v Police

Howes v Police

Case [2019] NZHC 1841 31 July 2019

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI 2019-488-0013

[2019] NZHC 1841

BETWEEN
WAYNE LESLIE HOWES

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 31 July 2019

Appearances:

A M Dooney for the appellant KJG Macneil for the respondent

Judgment:

31 July 2019

ORAL JUDGMENT OF JAGOSE J

This judgment was delivered by me on 31 July 2019 at 9am

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
K Macneil, Marsden Woods Inskip Smith, Whangarei A M Dooney, Barrister, Auckland

HOWES v NEW ZEALAND POLICE [2019] NZHC 1841 [31 July 2019]

Background

[1] On 10 April 2019, in a judge-alone trial, Judge D J Orchard in the District Court at Whangārei found Wayne Leslie Howes guilty of one charge of assault with intent to injure, as a result of a road rage incident.1 On 23 May 2019, Judge Orchard sentenced him to imprisonment for two years and one month.2 Mr Howes appeals on grounds the sentence was manifestly excessive.

Approach on appeal

[2] I must allow the appeal only if satisfied there is an error in the sentence imposed, and a different sentence should be imposed.3 Otherwise, I must dismiss the appeal.4 The measure of error is the sentence be “manifestly excessive” – a principle “well-engrained” in the Court’s approach to sentence appeals.5 That is to be determined by reference to the final sentence, not the route adopted to reach it.6 How the sentence was structured is not material.7

Facts

[3] On 3 August 2018, Mr Howes was driving on a residential road in Whangārei. He overtook Mr van Loggerenberg, indicating he should pull over. Thinking there was something wrong with his car, Mr van Loggerenberg did so. Mr Howes approached Mr van Loggerenberg’s car as Mr van Loggernberg attempted to get out and, through the opened driver’s door, punched him in his temple, causing him to fall back into his car. Mr Howes continued to punch and kick Mr van Loggerenberg’s head and torso several times, only stopping as other members of the public came to assist the victim.

1      New Zealand Police v Howes [2019] NZDC 6933. Crimes Act 1961, s 193. Maximum penalty of three years’ imprisonment.
2      New Zealand Police v Howes [2019] NZDC 9911.
3      Criminal Procedure Act 2011, s 250(2).
4      Criminal Procedure Act 2011, s 250(3).
5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27], [33] and [35].
6      Ripia v R [2011] NZCA 101 at [15].
7      Mita v R [2012] NZCA 137.

District Court decision

[4] Judge Orchard set the starting point for his sentence by identifying aggravating factors of the offending: attacking the head; road rage; the seriousness of the injury; and Mr van Loggerenberg’s vulnerability. The Judge noted the significant impact of the attack on Mr van Loggerenberg, both then constrained by recent shoulder surgery so as not to be able to defend himself or evade Mr Howes, and subsequently in exacerbating his recovery, now requiring complete…

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 Howes v Police

Details

AGLC: Howes v Police [2019] NZHC 1841
Case: [2019] NZHC 1841
Decision Date: 31 July 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Howes v Police involves an appeal by Wayne Leslie Howes against his conviction and sentence for assault with intent to injure, following a road rage incident. The District Court had found Mr Howes guilty and sentenced him to two years and one month in prison. The appellant argued that the sentence was manifestly excessive. The legal issue before the court was whether the sentence imposed by the District Court was manifestly excessive, and if so, whether the sentence should be altered. The court had to consider the principles of sentencing and the appropriate starting point for the sentence, based on the nature of the offence and the aggravating factors involved. The High Court determined that the District Court's starting point of two years and three months' imprisonment was appropriate, given the seriousness of the offence and the aggravating factors present. The Court found that the combination of factors, including the vulnerability of the victim and the unprovoked and prolonged nature of the attack, warranted a starting point within the top third of the available sentencing range. The Court concluded that the sentence was not manifestly excessive and dismissed the appeal.

Orders