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Lowe v Police

Lowe v Police

Case [2018] NZHC 282 1 March 2018

Appeal

Unlawful Interference with or Getting into a Motor Vehicle

Sentencing

Discounts for Guilty Plea

Recidivism

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2017-488-000039

[2018] NZHC 282

BETWEEN
ZEKE JAMES LOWE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 February 2018

Appearances:

David Niven for the Appellant

James Eng for the Respondent (via AVL from Wellington)

Judgment:

1 March 2018

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 1 March 2018 at 10:00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

LOWE v NEW ZEALAND POLICE [2018] NZHC 282 [1 March 2018]

Introduction

[1] Zeke Lowe, the appellant, pleaded guilty to a range of dishonesty charges on 11 May 2017.

[2] The pleas were entered following protracted discussions between the Crown and his counsel. He was sentenced to two years and eight months’ imprisonment.1

[3] Mr Lowe now appeals that sentence on the basis the summary of facts relied on for sentencing purposes did not properly reflect the plea arrangement reached with the Crown and, as a consequence, a manifestly excessive sentence was imposed.

Factual background

[4] On 29 September 2015 the Whangarei Police terminated search warrants in relation to an operation codenamed “Farm”. This was an investigation into dishonesty offending involving Mr Lowe and associates. Three search warrants were executed at addresses known to be used by Mr Lowe and as a result stolen property and vehicles were located.

[5] A further search warrant was executed on 1 October 2015 at an address in Waipu, also connected to Mr Lowe. There two stolen vehicles and stolen property were recovered.

[6] As a consequence the Police laid a large number of property/dishonesty-related charges against Mr Lowe.

[7] Between May and June 2016 discussions were had between Crown counsel and Mr Lowe’s previous counsel, Mr Day. Mr Day was Mr Lowe’s fourth counsel in relation to these matters.

[8] According to Mr Day, who filed an affidavit for the appeal, he was assigned to Mr Lowe on 21 April 2017.2 By that time resolution discussions involving Mr Lowe’s

1 R v Lowe [2017] NZDC 14938.
2 Prior to the hearing I convened a telephone conference to discuss with counsel the status of Mr Day’s affidavit. It seems Mr Day filed the affidavit without consulting Mr Niven who acts for

previous three counsel had resulted in what Mr Day describes as “a path to settlement”. It is not necessary to discuss the detail of the proposed settlement at this point other than observe that discussions continued until 4 May 2017 when Mr Day’s proposal was accepted.

[9] Under the terms of the agreement Mr Lowe would plead guilty to eight charges. For the purposes of the present discussion three particular charges assume special relevance. These are charges 12, 18 and 23. Significantly for sentencing purposes, these two charges of unlawfully getting into a motor vehicle and one charge of theft would be amended to unlawful interference with or getting into a motor vehicle. Mr…

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 Lowe v Police

Details

AGLC: Lowe v Police [2018] NZHC 282
Case: [2018] NZHC 282
Decision Date: 1 March 2018

CaseChat Overview and Summary

The appeal in Lowe v Police was brought by Zeke James Lowe, the appellant, who sought to challenge his two-year-and-eight-month imprisonment sentence imposed by the District Court. Lowe pleaded guilty to a range of dishonesty charges and argued that the sentence was manifestly excessive as it was based on a summary of facts that did not properly reflect the plea arrangement reached with the Crown. The appeal was heard in the High Court of New Zealand, Whangarei Registry, with David Niven appearing for the appellant and James Eng representing the respondent, the New Zealand Police. The court was required to determine whether there was an error in the sentence imposed and, if so, whether a different sentence should be imposed.

The court examined the plea arrangement between Lowe and the Crown, which involved amending three specific charges to unlawful interference with or getting into a motor vehicle. Although the Crown had not sought leave to amend the charges, the court concluded that Lowe's acceptance of the plea agreement and the agreed summary of facts meant that it was too late to object. The court also noted that the Crown prosecutor had complied with the Crown Prosecution Guidelines by including a full account of the charges that could have been proved by admissible evidence at trial. In regard to the sentence imposed, the court found that while the 18-month uplift for the three unlawful interference charges was stern, it did not result in a starting point that was out of range. The court also found that various aspects of the sentence were generous to Lowe, including discounts for time spent on electronically monitored bail, avoiding the need for a trial, and a guilty plea. As a result, the court concluded that an end sentence of 32 months' imprisonment was not out of range given the nature of the offending and Lowe's personal circumstances. Therefore, the appeal was dismissed.

In conclusion, the court found no error in the sentence imposed by the District Court and dismissed the appeal. The court acknowledged that the sentence was stern, but it was not manifestly excessive, given the appellant's extensive criminal history and the nature of his offending. The final orders of the court were to dismiss the appeal.

Orders