R v Rowe - [2018] NZHC 1087

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-019-6156

[2018] NZHC 1087

THE QUEEN

v

DAMON NICHOLAS ROWE

Hearing: 17 May 2018

Appearances:

R Douch for Crown

R Barnsdale for Prisoner

Judgment:

17 May 2018

SENTENCING NOTES OF JAGOSE J

Solicitors:
Almao Douch, Hamilton R Barnsdale, Hamilton

R v ROWE [2018] NZHC 1087 [17 May 2018]

Introduction

[1] Mr Rowe, on 5 March this year, you pleaded guilty to three charges, respectively for assault,1 doing an indecent act with intent to offend,2 and assault with intent to obstruct a constable in the execution of his duty, all during September 2017.3 I am now going to sentence you on those charges.

[2] You initially faced a charge of indecent assault, arising out of that offending.4 This would have been a third strike offence, had you been found guilty at trial. But the Crown filed an amended charge on 1 March 2018, substituting the alternative (non- strike) charge of doing an indecent act with intent to offend. You pleaded guilty four days later.

[3] I have listened to what counsel had to say, and read their written submissions, both for you and for the Crown. The Crown recommends you be sentenced to 18 months’ imprisonment. Your counsel, Richard Barnsdale, has also recommended you be imprisoned, but only for a shorter term, in his written submissions, of less than 12 months. Both counsel commend release conditions to provide a comprehensive safety net for both you and for the community.

[4] I am not bound by the lawyers’ recommendations. I must satisfy myself of the appropriate sentence for the gravity – or the seriousness – of your offending, including your culpability – or your responsibility – for it.

Background facts

—your offending

[5]Mr Rowe, I first outline the facts of your offending.

[6] The primary victim in your offending was a young woman, Ms A, who was working with [omitted]. Around midday on 2 September 2017, she was with her then

1      Summary Offences Act 1981, s 9. Maximum sentence 6 months’ imprisonment or $4,000 fine.
2      Crimes Act 1961, s 126. Maximum sentence 2 years’ imprisonment.
3      Section 192(2). Maximum sentence 3 years’ imprisonment.
4      Crimes Act 1961, s 135. Maximum sentence 7 years’ imprisonment.

preschool son in Hamilton’s CBD, on their way to the movies. You approached her. Noticing your bare and dirty feet, she responded compassionately, offering to buy you shoes from the Salvation Army Store. I make permanent suppression orders, suppressing publication of the victim’s name and her working association with [omitted].5

[7] While you were walking there together, you began making intimate comments to her. This made her nervous. But she carried on, choosing shoes for you at the store, and then heading with you to an ATM to obtain the cash to purchase the shoes. Around this time, you started asking personal questions of her.

[8] Ms A obtained the cash, gave it to you, and went to leave.…

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 R v Rowe

Details

AGLC: R v Rowe [2018] NZHC 1087
Case: [2018] NZHC 1087
Decision Date: 17 May 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Damon Nicholas Rowe was sentenced on three charges: assault, doing an indecent act with intent to offend, and assault with intent to obstruct a constable in the execution of his duty. The charges stemmed from incidents in September 2017 where Rowe harassed and inappropriately touched a woman, resisted arrest, and assaulted a police officer. The court had to determine an appropriate sentence considering the gravity of the offenses, the impact on the victim, and Rowe's personal circumstances, including his mental health issues and criminal history. The Crown recommended a sentence of 18 months, while Rowe's counsel suggested less than 12 months. The court set a starting point of nine months, adjusted for personal factors, and applied a discount for Rowe's guilty plea, resulting in an effective sentence of eight months' imprisonment. The court also imposed special conditions to ensure Rowe's rehabilitation and protect the community, including mandatory psychological assessments, participation in a sex offender treatment program, and restrictions on his movements and activities. The judgment emphasised this as Rowe's last chance to address his criminal behavior, highlighting the potential for preventative detention if he reoffends.

Orders