Howlett v Police - [2018] NZHC 1850

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2018-441-000017

[2018] NZHC 1850

BETWEEN
MICHAEL PHILLIP NIMARATA HOWLETT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 24 July 2018 (via AVL at Wellington)

Counsel:

W R Hawkins for Appellant F E Cleary for Respondent

Judgment:

24 July 2018

JUDGMENT OF COLLINS J

Introduction

[1] This judgment explains why I am dismissing Mr Howlett’s appeal against a sentence of one year and 10 months’ imprisonment imposed upon him on 1 May 2018 by Judge Adeane in the District Court at Napier.1 That sentence was for a series of charges:

(1)two charges of burglary;2

(2)one charge of possession of a methamphetamine pipe;3

1      Police v Howlett [2018] NZDC 8564.
2      Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.
3      Misuse of Drugs Act 1975, s 13(1)(a) and (3); maximum penalty one year’s imprisonment.

HOWLETT v NEW ZEALAND POLICE [2018] NZHC 1850 [24 July 2018]

(3)one charge of receiving stolen property;4

(4)two charges of theft (under $500);5

(5)one charge of unlawfully taking a vehicle;6

(6)one charge of failure to answer court bail;7

(7)one charge of failure to answer police bail;8 and

(8)one charge of failure to report for community service.9

[2] Mr Howlett appeals his sentence on the grounds that Judge Adeane failed to give adequate discount for personal circumstances, and failed to properly consider home detention. As a result, the end sentence is said to be manifestly excessive.

[3] The appeal is brought out of time. Mr Hawkins, counsel for Mr Howlett, explains that he was instructed outside the 28-day period, and was not counsel for Mr Howlett before the District Court. The Crown accepts that no prejudice arises from the appeal being heard out of time. I therefore grant Mr Howlett’s application for leave to appeal out of time.

Background

[4] On 29 August 2017, Mr Howlett hired a Toyota Camry from Eurocar Rentals at Napier Airport. He failed to return the vehicle on its return date of 7 September 2018 and Eurocar was unable to make contact with Mr Howlett. Mr Howlett was stopped by police driving the vehicle in Hastings, and was arrested. The vehicle was worth $35,000.

4      Crimes Act 1961, ss 246 and 247; maximum penalty three months’ imprisonment.
5      Sections 219 and 223(d); maximum penalty three months’ imprisonment.
6      Section 226(1); maximum penalty seven years’ imprisonment.
7      Bail Act 2000, s 38(a); maximum penalty one year’s imprisonment.
8      Section 38(a); maximum penalty three months’ imprisonment.
9      Sentencing Act 2002, s 71(1)(a); maximum penalty three months’ imprisonment.

[5] On 6 October 2017, Mr Howlett stole a backpack and clothing worth $150 from The Warehouse, Napier. He placed the items in the backpack, which he also took from the store, while in a changing room and then left the store without attempting to pay for them. The stolen items were not recovered.

[6] On 22 December 2017, Mr Howlett stole a pair of $170 shoes from Rebel Sport, Hastings.…

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 Howlett v Police

Details

AGLC: Howlett v Police [2018] NZHC 1850
Case: [2018] NZHC 1850
Decision Date: 24 July 2018

CaseChat Overview and Summary

The appellant, Mr Howlett, appealed against his sentence of one year and ten months imprisonment imposed by Judge Adeane in the District Court at Napier. The appeal was heard by Collins J in the High Court at Napier on 24 July 2018. Mr Howlett’s appeal was that the District Court Judge had failed to give adequate discount for personal circumstances, and failed to properly consider home detention. This resulted in a sentence that was manifestly excessive.

The court noted that the appeal was brought out of time, however no prejudice arose from the appeal being heard out of time, so the court granted Mr Howlett’s application for leave to appeal out of time. The court dismissed Mr Howlett’s appeal on both grounds. The court found that it was open to the District Court Judge not to grant a discount for remorse, and that the end sentence was within range. The court also found that it was open to the District Court Judge to conclude that home detention was not suitable for Mr Howlett’s rehabilitation, and that such a decision was not in error.

The appeal is dismissed.

Orders