Lowenstein v Police - [2020] NZHC 786

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000023

[2020] NZHC 786

BETWEEN
JACOB LOWENSTEIN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 21 April 2020

Appearances:

J D Lucas and J M Campbell for Appellant S Bicknell for Crown

Judgment:

22 April 2020

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 22 April 2020 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date…22 April 2020

Introduction

[1] The appellant, Mr Lowenstein, pleaded guilty to two charges of arson and a charge of unlawfully taking of a motor vehicle. This offending occurred while Mr Lowenstein was on bail, awaiting sentence, for a charge of assault with intent to injure and an associated burglary charge.

[2] Judge Saunders, in a decision of 14 June 2019, sentenced Mr Lowenstein to an end sentence of six years and nine months’ imprisonment.1 Mr Lowenstein now

1 R v Lowenstein [2019] NZDC 11538.

LOWENSTEIN v NEW ZEALAND POLICE [2020] NZHC 786 [22 April 2020]

appeals this sentence on the ground that the end cumulative sentence was manifestly excessive.

[3] Mr Lowenstein appeals out of time. He filed his appeal on 2 August 2019 in the Court of Appeal. The appeal was dismissed on 21 February 2020 for want of jurisdiction.2 The High Court is the first appeal court for this appeal. Accordingly, Mr Lowenstein applies for leave for this appeal to be heard by the Court.

Facts

[4] On 20 June 2018 Mr Lowenstein entered the restricted area of the property of Pak’nSave in Wainoni disguised as an employee. Mr Lowenstein sought out the victim. He confronted the victim whom he believed had insulted or abused his mother the previous day. Mr Lowenstein punched the victim in the face multiple times before being restrained. The victim sustained severe bruising, a cut to the lip and was shaken up by the violence. Mr Lowenstein plead guilty in October 2018 to charges of assault with intent to injure and burglary. The burglary was not for the purpose of theft, but to seek out the victim who Mr Lowenstein knew worked there.

[5] While on bail awaiting sentence, Mr Lowenstein committed three further offences.

[6] On 11 March 2019 Mr Lowenstein put a lighter, some paper and fuel in his backpack and left his house. He unlawfully took a Mazda station wagon that was parked in a driveway on Puriri Street, Riccarton. Mr Lowenstein then drove the car to Upper Riccarton, parking it a short distance from The Church of Jesus Christ of Latter-day Saints.

[7] Mr Lowenstein entered the property through a door he had smashed the previous day. He poured petrol over a couch and carpet in the lounge and set it alight. The fire destroyed the lounge and kitchen area. The cost of the damage was approximately $500,000. The church does not have insurance.

2 Lowenstein v R [2020] NZCA 25.

[8] On 13 March 2019 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 Lowenstein v Police

Details

AGLC: Lowenstein v Police [2020] NZHC 786
Case: [2020] NZHC 786
Decision Date: 22 April 2020

CaseChat Overview and Summary

The case of Lowenstein v Police involved an appeal against sentence by Mr. Jacob Lowenstein, who had pleaded guilty to two charges of arson and one charge of unlawful taking of a motor vehicle. Mr. Lowenstein was on bail, awaiting sentence for a previous charge of assault with intent to injure and an associated burglary charge. Judge Saunders sentenced Mr. Lowenstein to an end sentence of six years and nine months’ imprisonment. Mr. Lowenstein appealed on the ground that the end cumulative sentence was manifestly excessive.

The legal issues the Court was required to decide included whether the starting point of the sentence was appropriate, whether the mitigating factors were properly considered, and whether the sentence was manifestly excessive. The Court examined the principles of sentencing and the relevant authorities on appeals against sentence.

The Court found that the starting point adopted by Judge Saunders for the lead offending and the uplifts applied for the further offending were appropriate. The Court concluded that the mitigating factors of remorse, participation in restorative justice, personal circumstances, and guilty plea warranted distinct discounts. The Court applied a 10% discount for assisting authorities by confessing to the crime, a 5% discount for remorse, a 5% discount for personal circumstances, and a 25% discount for guilty pleas. The Court concluded that the sentence of six years and nine months’ imprisonment was manifestly excessive and substituted a sentence of six years and four months’ imprisonment.

In conclusion, the appeal was allowed, and the sentence of six years and nine months imprisonment was quashed. A sentence of six years and four months’ imprisonment was substituted. The final orders included a sentence of five years and seven months for the arson committed on 13 March 2019, four years for the arson committed on 11 March 2019 (concurrent), two years for the unlawful taking of the motor vehicle, nine months for the assault with intent to injure (cumulative on the sentence for the 13 March 2019 arson), and nine months for entering a building with intent to commit an imprisonable offence (concurrent with the sentence for assault).

Orders