Howey v Police - [2014] NZHC 2299

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-412-000017 [2014] NZHC 2299

BETWEEN
JOSEPH OWEN FORD HOWEY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 22 September 2014

Appearances:

B Farnan for Appellant
R D Smith for Respondent

Judgment:

22 September 2014

ORAL JUDGMENT OF GENDALL J

[1] The appellant Mr Howey appeals against his sentence of three months’ community detention, 80 hours’ community work and nine months’ supervision imposed by Judge Phillips in the Dunedin District Court on 10 June 2014 with respect to a charge of driving with excess breath alcohol (under 20 years of age) and driving whilst disqualified.

[2] Mr Howey appeals on grounds that the sentence Judge Phillips imposed was manifestly excessive. Judge Phillips also disqualified Mr Howey from driving for a period of six months but that aspect of the sentence, as I understand it, is not challenged in this appeal.

Background

[3] On 24 February 2014 Mr Howie appeared in the Dunedin Youth Court and was disqualified from holding a drivers licence. At about 4:05 a.m. on 9 March 2014
Mr Howey was driving a car on Crombie Street in Gore. When stopped by the

HOWEY v NEW ZEALAND POLICE [2014] NZHC 2299 [22 September 2014]

Police it was noticed that he was affected by alcohol. He underwent a breath screen test which provided a positive result. A subsequent evidential breath test gave a result of 366 micrograms of alcohol per litre of breath. Checks by the police revealed that Mr Howey was a disqualified driver. In explanation Mr Howey stated he was taking some friends home and thought he was not disqualified yet.

The District Court decision

[4] In reaching his decision in the District Court Judge Phillips took into account that Mr Howey:

(a) Was driving whilst disqualified;

(b)Had been disqualified from driving only 15 days before the current offending;

(c) Had an excess breath alcohol level that was high for a young person; (d) Declined to fully participate in the pre-sentence report process;
(e) Was unmotivated to comply with interventions being put in front of him; and

(f) Did not attend for the purposes of the alcohol and drug counselling report that Judge Phillips had required.

[5] After taking these matters into account Judge Phillips then assessed sentence having regard to the purposes and principles of the Sentencing Act 2002 including:

(a) Denunciation and deterrence; and

(b) Rehabilitation.

[6] Judge Phillips also took into account that Mr Howey’s mental health at the

time was not good. He also accepted youth as a factor but determined that because

Mr Howey had so recently been disqualified from driving for an excess breath alcohol offence, denunciation and deterrence must prevail.

The legal principles on appeal

[7] Section 250 Criminal Procedure Act 2011 now governs sentence appeals from the District Court to the High Court. Section 250(2) provides:

(2) The first appeal court must allow the appeal if satisfied that:

(a) For any reason there is an error in the sentence imposed on conviction;…

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 Howey v Police

Details

AGLC: Howey v Police [2014] NZHC 2299
Case: [2014] NZHC 2299
Decision Date: 22 September 2014

CaseChat Overview and Summary

In the case of Howey v Police, Joseph Owen Ford Howey appealed against his sentence of three months’ community detention, 80 hours’ community work and nine months’ supervision, imposed by Judge Phillips in the Dunedin District Court on 10 June 2014 for driving with excess breath alcohol (under 20 years of age) and driving whilst disqualified. The appellant argued that the sentence imposed was manifestly excessive. The central legal issue in this case was whether the sentence imposed by Judge Phillips was an error that required correction under Section 250(2) of the Criminal Procedure Act 2011. This section requires the High Court to allow an appeal if it is satisfied that there is an error in the sentence and that a different sentence should be imposed.

The Court of Appeal has clarified that Section 250(2) maintains the previous approach to sentence appeals, which required both an error in the sentence and a need for a different sentence to be imposed. The focus remains on whether the sentence is within the appropriate range rather than the process by which it was reached. The High Court considered the sentence imposed by Judge Phillips, noting that although the language used could be viewed as incendiary, the sentence itself was not out of proportion to other sentences for a similar offence. The Court referred to a previous case, Robarts v Police, which established that a combination of community detention, community work, intensive supervision, disqualification, and reparation for a second offence for driving with excess breath alcohol for a person under 20 years of age was appropriate. The Court concluded that the sentence imposed by Judge Phillips met the purposes of rehabilitation and was the least restrictive outcome appropriate for Mr Howey.

The Court dismissed the appeal, affirming the sentence imposed by Judge Phillips. It found that the sentence was within the appropriate range and that there was no material error warranting a different sentence. The Court emphasized that the focus should remain on whether the sentence is within the appropriate range, and in this case, the Court was satisfied that the sentence imposed was appropriate.

Orders