Howes v Police

[2019] NZHC 1841

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 replacement of his shoulder, and leaving him unable to care for his wife, recently diagnosed with a brain tumour, and so unable to work he lost his job.

[5]    Judge Orchard also had regard for the purposes and principles of sentencing: in particular, the principle requiring the maximum penalty be imposed where offending is within the most serious of its kind.8 The Judge considered Mr Howes may have been undercharged in regard to the present offending, and rejected his claim that he was defending himself from someone who had attempted to deliver the first punch. In light of the serious nature of the offending, the impact on Mr van Loggerenberg, the various aggravating factors and the desire to denounce and deter such behaviour, the Judge adopted a starting point of two years and three months’ imprisonment.

[6]    Judge Orchard found no reason for uplift, and applied a two-month deduction for Mr Howes’ chronic back pain as a mitigating factor, which may have impacted his emotional state at the time of the offending.9 This resulted in an end sentence of two years’ and one month’s imprisonment. While the end sentence was close to the home detention threshold, Judge Orchard said, even if it had been available, it would not adequately have addressed the principles and purposes of sentencing in this case.10

Appeal

[7]    Mr Howes’ counsel, Aaron Dooney, says the sentence was manifestly excessive, and from too high a starting point. The Judge double-counted Mr van

8      Sentencing Act 2002, s 8(c).

9 At [21].

10     At [23], and see Sentencing Act 2002, s 15A(1)(a).

Loggerenberg’s vulnerability, referring to it both as an aggravating factor in its own right, and again when discussing the seriousness of the injury caused.11

[8]    In reliance on caselaw,12 Mr Dooney says, with only two aggravating factors, the offending ought to fall within Tamihana’s band two, and attract a lower start point than the 12- and 24-month start points in contended more serious offending. He accepts the Judge’s two-month discount, and seeks Mr Howe’s sentence be commuted to home detention.

[9]    Crown counsel, Kyle Macneil, responds the Judge’s start point was appropriate, as the offending was squarely within Tamihana’s band three, and consistent with comparable cases.13 The end sentence, he says, reflects Mr Howes’ prolonged and unprovoked attack on a complete stranger.

Discussion

[10]   There is no guideline judgment for the offence of assault with intent to injure under s 193 of the Crimes Act 1961. But, in Tamihana, the Court of Appeal found the approach adopted in the Nuku guideline judgment14 – of three bands, by reference to aggravating factors – “helpful in sentencing for offending contrary to s 193”.15 In essence, where there are few aggravating factors or only low-level violence, a non-custodial sentence may be appropriate. Three or fewer aggravating factors would attract a start point no higher than about 45% of the maximum sentence; three or more in serious combination would require a start point from about 30% “and up”.16

[11]   The Judge did not double-count Mr van Loggerenberg’s vulnerability; his second reference to that factor was only to describe the seriousness of his injury, given

11 New Zealand Police v Howes, above n 2, at [13] and [16]–[17].

12 Tamihana v R [2015] NZCA 169 at [16]–[18]; Tiplady-Koroheke v R [2012] NZCA 477; and

Kojeunikov v New Zealand Police [2013] NZHC 551.

13 Devery v New Zealand Police [2013] NZHC 264; Kovalic v New Zealand Police [2019] NZHC 1214; Ransfield v New Zealand Police [2014] NZHC 1046; and Kojeunikov v New Zealand Police, above n 12.

14 Nuku v R [2012] NZCA 584, with reference to sentencing for wounding with intent to injure (s 188(2): maximum seven years’ imprisonment), injuring with intent to injure (s 189(2): maximum five years’ imprisonment) and aggravated wounding or injury (s 191(2): maximum seven years’ imprisonment).

15 Tamihana v R, above n 12, at [16].

16 At [18].

his shoulder surgery. The Judge’s inclusion of Mr van Loggerenberg’s injury’s seriousness as an aggravating factor only is justified if that seriousness may stand as a proxy for Mr Howes’ culpability.17 But it very largely derives from Mr van Loggerenberg’s vulnerability, rather than being anything Mr Howes may be thought to have intended. On the other hand, the attack was in part to Mr van Loggerenberg’s head. And the prolonged and unprovoked violence meted out by Mr Howes is a third aggravating factor. The combination of aggravating factors was particularly serious here: Mr van Loggerenberg’s vulnerability meant he could not defend or evade Mr Howes’ significant and continued violence. Thus Nuku’s third band is available, requiring a starting point here of at least 11 months’ imprisonment, and not limited by the second band’s effective 16-month ‘cap’ (both from the three-year maximum term).

[12]   Comparator cases suggest a higher start point.18 In Devery, this Court accepted the offender there properly was assessed in Nuku’s third band, with a starting point of three years’ imprisonment. Although the offender returned to the fray with a weapon, exacerbating the offending, there was nothing to suggest that victim was particularly vulnerable. The Judge said, of that ‘road rage’ incident, “random unprovoked violence is a very culpable activity … threaten[ing] the sense of safety that citizens are entitled to have … driving about in a car”.19 In Gibson v New Zealand Police – also a ‘road rage’ type case resulting in convictions for wounding with intent to injure and assault, although there an appeal against refusal of home detention – a two-year, nine-month start point was not criticised.20 And, although there involving discharge of an air rifle in the course of a ‘road rage’ incident, the same two-year, nine-month start point was adopted in Stirling v New Zealand Police.21

[13]   The offending here is not comparable with Kojuenikov’s “fairly minor assault in the street following some provocation … over in a moment”, attracting a 12-month starting point.22 In Kovalic, although an appeal against refusal to grant discharge without conviction, this Court considered similar offending to be “moderately high”,

17     Nuku v R, above n 14, at [15].

18     I do not consider the particular factual circumstances of Tiplady-Koroheke v R, above n 12, or

Ransfield v New Zealand Police, above n 13, to assist in establishing a starting point here.

19     Devery v New Zealand Police, above n 13, at [18].

20     Gibson v New Zealand Police [2012] NZHC 315.

21     Stirling v New Zealand Police HC Nelson CRI 2011-442-0037, 8 December 2011 at [6].

22     Kojeunikov v New Zealand Police, above n 12, at [25].

only “quite weighty mitigating factors” resulting in a non-custodial sentence.23 ‘Moderately high’ suggests a start point in the top third of the available range.

[14]   Judge Orchard’s two-year, three-month start point thus is entirely within range. I have no reason to disturb her subsequent deduction (or indeed, to apply any uplift). The end sentence therefore is not manifestly excessive, and the issue of home detention does not arise. Even so, I accept the Judge had a basis – in the self-entitled nature of Mr Howes’ offending and subsequent attitude, suggesting deterrence and protection of the public were important factors – on which to consider the purposes and principles of sentencing would not be met by home detention.

Result

[15]The appeal is dismissed.

—Jagose J

23     Kovalic v New Zealand Police, above n 13, at [19]-[20].