Lowenstein v The Queen - [2020] NZCA 78

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA363/2019
[2020] NZCA 78

BETWEEN	JACOB LOWENSTEIN Appellant
AND	THE QUEEN Respondent

Court:	French, Miller and Gilbert JJ
Counsel:	J D Lucas for Appellant B F Fenton for Respondent
Judgment: (On the papers)	21 February 2020 at 3.30 pm
Reasons:	24 March 2020 at 9.30 am

JUDGMENT OF THE COURT

The appeal is dismissed for want of jurisdiction. The High Court is the first appeal court for this appeal.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

In a results judgment delivered on 21 February 2020, we dismissed this appeal for want of jurisdiction.[1] These are our reasons for our conclusion that the High Court is the first appeal court for this appeal against sentence.
[1]Lowenstein v R [2020] NZCA 25.
Jacob Lowenstein engaged in two distinct sets of offending some eight months apart (all category 3 offences). The first set of offending — burglary and assault with intent to injure — occurred on 20 June 2018. Mr Lowenstein was charged with these offences on 27 June 2018 (set A charges). He pleaded not guilty and elected trial by jury on the set A charges on 2 August 2018. However, on 17 October 2018, Mr Lowenstein pleaded guilty to these charges and was remanded on bail for sentencing.
While on bail awaiting sentencing on the set A charges, Mr Lowenstein committed the second set of offending — arson and unlawfully taking a motor vehicle on 11 March 2019, and a second arson at the same property on 13 March 2019. Mr Lowenstein was charged with these offences on 2 April 2019 (set B charges). He entered guilty pleas to the set B charges on 3 April 2019.
On 14 June 2019 Judge Saunders sentenced Mr Lowenstein to six years and nine months’ imprisonment for the totality of this offending.[2] The Judge adopted a starting point of nine years’ imprisonment for the two arson charges.[3] He uplifted the starting point by 18 months for the set A charges. The Judge allowed a discount of 12 months for personal mitigating factors and a further discount of 25 per cent for the guilty pleas. This brought the indicative end sentence down to seven years and one month’s imprisonment. The Judge adjusted this for totality to arrive at an end sentence of six years and nine months’ imprisonment, constructed as follows:[4]
(a)13 March 2019 arson — six years’ imprisonment (set B).
(b)11 March 20119 arson — four years’ imprisonment (concurrent) (set B).
(c)Unlawful taking of a motor vehicle — two years’ imprisonment (concurrent) (set B).
(d)Assault with intent to injure and burglary — nine months’ imprisonment (cumulative) (set A).
[2]R v Lowenstein [2019] NZDC 11538.
[3]At [20].
[4]At [21].
Mr Lowenstein filed a notice of appeal against sentence in this Court. He contended that the end sentence of six years and nine months’ imprisonment was manifestly excessive and insufficient allowance was made for personal mitigating factors…

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 The Queen

Details

AGLC: Lowenstein v The Queen [2020] NZCA 78
Case: [2020] NZCA 78
Decision Date: 21 February 2020 at 3.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand was called upon to determine whether it had jurisdiction to hear an appeal against a sentence imposed by the District Court. The appellant, Jacob Lowenstein, was sentenced to a total of six years and nine months in prison for multiple category 3 offences. He appealed to the Court of Appeal against the severity of the sentence, arguing it was excessive and insufficiently took into account mitigating factors and his participation in restorative justice. However, the court found that it lacked jurisdiction over the appeal, as the High Court was the appropriate first instance appellate body.

The court was required to determine which court had jurisdiction over the appeal against sentence. The Criminal Procedure Act 2011 provided the legislative framework for determining the appropriate appellate pathway. The court needed to determine whether the appeal was to be heard by the Court of Appeal or the High Court, based on the nature of the offences and the procedures followed during the trial. Specifically, the court had to consider whether the appeal should be assessed on an aggregated basis, or on a sentence-by-sentence basis.

The court determined that the appeal should be assessed on a sentence-by-sentence basis, rather than an aggregated basis. The court held that the appropriate appellate pathway was determined by the nature of the individual sentences, rather than the aggregate sentence. As the sentences for the more serious offences did not exceed five years, and Lowenstein had not elected a jury trial for those offences, the High Court was the appropriate first instance appellate body. Consequently, the Court of Appeal did not have jurisdiction to hear the appeal, and it was dismissed.

In conclusion, the Court of Appeal found that it did not have jurisdiction to hear the appeal against sentence, as the High Court was the appropriate first instance appellate body. The appeal was dismissed for want of jurisdiction, and the matter was remitted to the High Court for further consideration. The court's decision highlights the importance of carefully considering the relevant legislative provisions when determining the appropriate appellate pathway in criminal cases.

Orders