Lowery v R - [2020] NZHC 667

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-419-14

[2020] NZHC 667

BETWEEN
MICHAEL JAMES LOWERY

Appellant

AND

THE QUEEN

Respondent

Hearing: 31 March 2020

Counsel:

G A Walsh for Appellant

A S Alcock for Respondent

Judgment:

1 April 2020

JUDGMENT OF BREWER J

This judgment was delivered by me on 1 April 2020 at 3:00 pm Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Hamilton, for Crown

LOWERY v R [2020] NZHC 667 [1 April 2020]

Introduction

[1] Mr Lowery appeals against the sentence of two years and eight months’ imprisonment imposed on him by Judge AS Menzies on 21 February 2020.1 His contention is that the sentence is manifestly excessive.

[2] My task is to determine whether the Judge made an error such that a different sentence should be imposed.

Background

[3] Mr Lowery was due to stand trial on a number of charges of intimate partner violence. On the day of the trial he reached agreement with the Crown and pleaded guilty to an amended set of charges. These were:

(a)A representative charge of assaulting his partner with intent to injure her by repeatedly punching her to the face and head.2 The maximum penalty is three years’ imprisonment.

(b)Intentionally or recklessly impeding the partner’s normal breathing by applying pressure to her throat or neck (“the strangulation charge”).3 The maximum penalty is seven years’ imprisonment.

(c)A representative charge of contravening a protection order by physically assaulting and psychologically abusing the protected person, namely his partner.4 The maximum penalty is three years’ imprisonment.

[4] There was a further charge before Judge Menzies. It was a charge of breach of intensive supervision. Mr Lowery has a fairly extensive history of offending including convictions for violence against females and breaching protection orders. He was imprisoned in 2010 for breaching release conditions

1      R v Lowery [2020] NZDC 3092.
2      Crimes Act 1961, s 193.
3      Crimes Act 1961, s 189A.
4      Domestic Violence Act 1995, ss 19(1)(a) and 49(1)(a).

which were imposed following a 2008 sentence in which Mr Lowery was sentenced to 30 months’ imprisonment for violent offending. The sentence of intensive supervision was imposed in May 2018 following convictions for male assaults female and contravening a protection order. A special condition of the sentence was that Mr Lowery not possess or consume alcohol. Mr Lowery was arrested on the charges already described on 26 December 2018. He was intoxicated at the time, hence the charge of breaching intensive supervision.

[5] The facts of Mr Lowery’s offending against his partner can be set out succinctly.

[6] Mr Lowery and his partner drank alcohol at their home on 24 December 2018. They began to argue. Mr Lowery grabbed his partner by the arms and threw her onto the bed. He then punched her on a number of occasions to the head with closed fists using both of his arms. The partner pleaded for Mr Lowery to stop. He did so and apologised.

[7] The following…

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 Lowery v R

Details

AGLC: Lowery v R [2020] NZHC 667
Case: [2020] NZHC 667
Decision Date: 1 April 2020

CaseChat Overview and Summary

The case of Lowery v R involved an appeal by Michael James Lowery against the sentence of two years and eight months’ imprisonment imposed on him by Judge AS Menzies. Lowery contended that the sentence was manifestly excessive. The appeal was heard in the High Court of New Zealand, Hamilton Registry, before Brewer J. Lowery's appeal hinged on the argument that the starting point for the strangulation charge was too high, and there was an aspect of double counting due to the separate uplift for the offending taking place while Lowery was subject to a sentence of intensive supervision.

The legal issues in the case centred around whether the starting point for the strangulation charge was appropriately set and whether the uplift for the offending while subject to intensive supervision constituted double counting. The court considered the gravity of Lowery’s offences, which included serious intimate partner violence, multiple breaches of a protection order, and the significant harm caused to his partner. The court also took into account Lowery’s extensive history of violent offending and his breach of the conditions of intensive supervision.

Brewer J dismissed the appeal, finding that the starting point for the strangulation charge was not unjustifiably high, and the overall sentence of two years and eight months’ imprisonment was well within the appropriate range. The court considered the severity of the offences, the cumulative criminality, and the need for denunciation due to Lowery’s history of violence. The appeal was dismissed, and the original sentence was upheld.

Orders