Howie v The Queen - [2012] NZCA 55

IN THE COURT OF APPEAL OF NEW ZEALAND

CA818/2011
[2012] NZCA 55

BETWEEN GAVIN MANU HOWIE
Appellant

AND THE QUEEN
Respondent

Hearing: 29 February 2012

Court: Harrison, Priestley and Allan JJ

Counsel: S A Saunderson-Warner for Appellant
K J Raftery for Respondent

Judgment: 29 February 2012

ORAL JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

On 7 December 2011 Gavin Howie was sentenced to a term of two years imprisonment by Judge Crosbie in the District Court at Dunedin, following his pleas of guilty to one charge of assault with intent to injure and one charge of intentional damage.[1] His pleas followed a sentencing indication given by the Judge on 4 November 2011 that the end sentence would likely be two years or less; and that he would, to use his words, “keep an open mind as to a sentence of home detention”.
[1] R v Howie DC Dunedin CRI-2011-012-2857, 7 December 2011.
Mr Howie now appeals the sentence of two years imprisonment imposed by Judge Crosbie on the grounds that it was manifestly excessive or wrong in principle.

Facts

The facts are not in material dispute and can be stated shortly. Our view of them will dictate the result of this appeal.
One morning in June 2011 Mr Howie and his two co-offenders travelled in a motor vehicle to a residential address in Dunedin. One of their number was seeking to exact revenge on the complainant (LB). They found him in a motor vehicle, along with his girlfriend, reversing out of the driveway. Mr Howie, who was not the driver, and his cohorts deliberately rammed LB’s vehicle. We note, as did the Judge, that Mr Howie was not armed. Ms Saunderson-Warner accepts, however, that by this stage Mr Howie knew that his two co-defendants were armed with dangerous weapons.
All three men attacked LB’s car. His girlfriend was able to escape. After causing extensive damage to the vehicle, Mr Howie and his colleagues attacked LB. Mr Howie himself reached through a broken front window and punched LB on a number of occasions. His two cohorts and some unidentified associates then attacked LB with an axe, two knives and various blunt instruments. LB was trapped in his vehicle. He was unable to avoid the blows. There was some dispute about the nature and extent of his injuries. We accept that, while they were not life threatening, they were serious and required hospitalisation. Amongst other things, one of LB’s ears was almost completely severed.
Mr Howie was then aged 21 years of age. He had a lengthy list of previous convictions for one so young, principally for violence and dishonesty. When sentencing Mr Howie, Judge Crosbie recorded that he had two convictions for assault, two for assault on police and three for resisting from 2009. He was sentenced to one year’s imprisonment for that offending. Of more significance perhaps, Mr Howie was later sentenced to a term of four months home detention…

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 Howie v The Queen

Details

AGLC: Howie v The Queen [2012] NZCA 55
Case: [2012] NZCA 55
Decision Date: 29 February 2012

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard the appeal of Gavin Howie against the sentence of two years imprisonment imposed by Judge Crosbie in the District Court at Dunedin. Howie had pleaded guilty to charges of assault with intent to injure and intentional damage. The appeal was based on the contention that the sentence was manifestly excessive or wrong in principle. The facts of the case involved Howie and two co-offenders travelling to a residential address in Dunedin with the intent to exact revenge on the complainant, LB. The trio rammed LB's vehicle, and after causing extensive damage, they attacked LB, with Howie punching him through a broken window. The attack resulted in serious injuries, including an almost severed ear.

The court considered several legal issues, including whether the base starting point for sentencing was excessive, whether a sentence of home detention should have been imposed, and whether the Judge should have made a specific allowance for Howie being on electronically monitored bail with a 24-hour curfew prior to sentencing. The court found that the Judge did not err in his calculations of the base starting point, noting that the seriousness of the crime and the premeditated nature of the group attack justified the sentence. Furthermore, the court was not persuaded that the Judge undervalued the deterrent effect of home detention or failed to appropriately consider the period Howie spent on electronically monitored bail.

In conclusion, the Court of Appeal dismissed Howie's appeal, affirming that the sentence of two years imprisonment was not excessive and was in line with the indication given by the Judge before Howie pleaded guilty. The court acknowledged the serious nature of the offence and Howie's previous criminal history, which warranted the imposed sentence.

Orders