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].
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…
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