Howieson v The Queen - [2018] NZHC 772

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2018-442-2

[2018] NZHC 772

BETWEEN
JAKE HOWIESON

Appellant

AND

THE QUEEN

Respondent

Hearing: 17 April 2018

Appearances:

C Stevenson for the Appellant Z Fuhr for the Respondent

Judgment:

23 April 2018

JUDGMENT OF CULL J

[1] Mr Howieson appeals his sentence of four years eight months’ imprisonment for aggravated robbery and related charges, because it does not reflect parity with two of the three co-defendants and is manifestly excessive.1

[2] The Crown opposes the appeal and argues the starting point was within the available range and discloses no error by the sentencing Judge, as there is no “unjustifiable” disparity in the sentencing of the three relevant co-defendants.

[3] The difference in the sentence of Mr Howieson was two months more than the co-defendant Mr Kumeroa and three months more than the co-defendant Mr Edwards.

1 R v Howieson [2018] NZDC 2469.

HOWIESON v R [2018] NZHC 772 [23 April 2018]

Factual background

Previous history leading to suspension of licence

[4] Mr Howieson has three previous convictions for driving while disqualified which occurred on 30 April 2014, 16 February 2015 and 14 July 2015.

[5] On 25 June 2017, Mr Howieson was issued a three month driver licence suspension for excess demerit points.

Driving while suspended (third or subsequent offence) and the unlawful taking of a motor vehicle

[6] The incident leading to the charge of unlawfully taking a motor vehicle2 and one of the charges for driving while suspended (third or subsequent offence)3 occurred on 14 July 2017. At around 6.00 pm on that day, the first complainant parked his car outside of his home. At some point during that night, Mr Howieson was outside the complainant’s address and discovered the car was unlocked. He then started it and drove the car to his own house.

[7] Mr Howieson later denied stealing the car when questioned by police on 18 July 2017.

Driving while suspended (third or subsequent offence) and aggravated robbery

[8] On 15 July 2017, Mr Howieson and three co-defendants (Mr Harmon, Mr Edwards and Mr Kumeroa) planned to commit a robbery of a dairy down the road. Mr Edwards had access to a pump action shotgun that was intended to be used during the offence. Mr Howieson and Mr Harmon agreed to accompany Mr Edwards and Mr Kumeroa to and from the dairy.

[9] The incident that led to the charge of aggravated robbery4 and one of the charges for driving while suspended (third or subsequent offence) occurred on 16 July

2      Crimes Act 1961, s 226(1). Maximum penalty seven years’ imprisonment.
3      Land Transport Act 1998, ss 32(1)(a) and 32(4). Maximum penalty two years’ imprisonment and a mandatory minimum one year disqualification from holding or obtaining a driver licence.
4      Crimes Act 1961, s 235(c). Maximum penalty 14 years’ imprisonment.

2017.5 On this day at around 8.15 pm Mr Howieson walked to pick up the car he stole on…

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 Howieson v The Queen

Details

AGLC: Howieson v The Queen [2018] NZHC 772
Case: [2018] NZHC 772
Decision Date: 23 April 2018

CaseChat Overview and Summary

Jake Howieson appeals his sentence of four years and eight months' imprisonment for aggravated robbery and related charges, arguing it does not reflect parity with his co-defendants and is manifestly excessive. The Crown opposes the appeal, asserting the starting point was within the available range and that there is no unjustifiable disparity in the sentencing of the co-defendants. Howieson argues that his sentence should reflect parity with his co-defendants, who received shorter sentences despite their involvement in the crime. The Court examined the legal principles surrounding sentencing disparities and the culpability of co-defendants. It found that the disparities in sentence were not unjustifiable or gross enough to warrant appellate interference, and that the sentencing Judge had appropriately considered the circumstances of each defendant. The Court found that the differences in sentencing were justified by the different charges and maximum penalties each defendant faced. The Court concluded that the disparity in sentences did not amount to an unjustifiable disparity and dismissed the appeal.

The final orders of the Court were that the appeal be dismissed.

Orders