Howie v The Queen
[2012] NZCA 55
•29 February 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA818/2011 [2012] NZCA 55 |
| BETWEEN GAVIN MANU HOWIE |
| AND THE QUEEN |
| Hearing: 29 February 2012 |
| Court: Harrison, Priestley and Allan JJ |
| Counsel: S A Saunderson-Warner for Appellant |
| 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 for a range of dishonesty offences in November 2010.
Appeal
Starting point
Against that background Ms Saunderson-Warner advances three grounds of appeal. First, she submits that the base starting point of two years and three months imprisonment adopted by the Judge was excessive: in her submission it should have been between one and a half and two years. The Judge adjusted the base starting point upwards by six months to reflect Mr Howie’s previous bad history. He then adjusted it downward by the same period to reflect his plea of guilty. The two netted off. Finally he allowed an extra three months discount for Mr Howie’s participation in a restorative justice programme.
Ms Saunderson-Warner points out that the end sentence was equal to two thirds of the maximum of three years available on a charge of assault with intent to injure. We note, of course, that the offending included the additional charge of intentional damage. A totality approach was necessary.
We are not satisfied that the Judge erred. He acknowledged that Mr Howie’s culpability was less than his co-offenders, and that his participation was relatively limited.[2] But the dominant factor was his involvement in a premeditated group attack where, as we have noted, Mr Howie’s co-offenders were armed to his knowledge with dangerous weapons, and where very serious harm was inflicted on the victim. Mr Howie’s presence was plainly designed to provide encouragement.
[2] R v Howie DC Dunedin CRI-2011-012-2857, 7 December 2011 at [8].
Ms Saunderson-Warner emphasises that Mr Howie was not charged with being a party to the more serious charges laid against his co-offenders of injuring with intent to injure.[3] Mr Howie may have been the beneficiary of a generous approach to charging. It would have been open to the Judge to have adopted a significantly higher starting point for offending of the same nature and culpability if Mr Howie had been charged with being a party to causing grievous bodily harm or injuring with intent to injure.
Home detention
[3]One co-offender was sentenced to seven years and six months imprisonment by another Judge in the District Court, which was reduced by this Court to six years nine months against a starting point of nine years imprisonment: see Hancock v R [2012] NZCA 36.
Second, Ms Saunderson-Warner submits that Judge Crosbie erred in not imposing a sentence of home detention. She says that he undervalued the deterrent effect of that sentence. We do not agree. The Judge noted Ms Saunderson-Warner’s submission that home detention can be deterrent and also achieve a denunciative or punitive purpose. However, after carefully weighing all relevant factors he was satisfied that a sentence of imprisonment should be imposed.
In particular the Judge gave weight to the fact that Mr Howie had already been the recipient of a sentence of home detention but had continued to offend afterwards. The Judge specifically imposed conditions following Mr Howie’s release from prison which were designed to assist Mr Howie’s rehabilitation. We are not satisfied that the Judge made a reviewable error.
Bail conditions
Third, Ms Saunderson-Warner submits that the Judge should have made a further and specific allowance in recognition that Mr Howie was on electronically monitored (EM) bail with a 24 hour curfew for four months prior to sentence. She refers to what she describes as a sentencing practice of expressly allowing for this factor. While we accept that in some cases where the remand on EM bail and strict conditions is lengthy courts have made a small but specific deduction for this factor, there is no statutory or common law obligation to this effect. The issue is of a particularly evaluative nature.[4]
[4] R v Nepe [2008] NZCA 98 at [32] and [33]; Schuster v R [2011] NZCA 343 at [10].
Ultimately we are guided by the established approach for determining appeals against sentence: our enquiry is into whether the end sentence was excessive. In this respect we record that the Judge gave Mr Howie a specific additional benefit of a three month deduction for his participation in the restorative justice programme. That may be seen as generous. In the round there was no error. The sentence of two years imprisonment was not excessive and accorded with the Judge’s earlier indication upon which Mr Howie pleaded guilty.
Result
Mr Howie’s appeal is dismissed.
Solicitors:
Aspinall Joel, Dunedin for Appellant
Crown Law Office, Wellington for Respondent