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Rowell v Police

Rowell v Police

Case [2019] NZHC 471 18 March 2019

Criminal Liability

Sentencing

Unlawful Possession of a Firearm

Assault on Police

Previous Convictions

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-429

[2019] NZHC 471

BETWEEN
DAVID TAIRI ROWELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 18 March 2019

Appearances:

D J Taumihau for the Appellant S E Cann for the Respondent

Judgment:

18 March 2019

ORAL JUDGMENT OF PALMER J

Solicitors:
Public Defence Service, Auckland Meredith Connell, Auckland

ROWELL v NEW ZEALAND POLICE [2019] NZHC 471 [18 March 2019]

What happened?

[1] On 1 November 2017, Mr David Rowell was arrested after a callout to a house in Glenside, Wellington, regarding a domestic dispute. He became aggressive and abusive, kicked one of the police officers and stomped on another’s foot. A search revealed: a pistol capable of firing .22 ammunition, and firearm parts, in a bedroom he was occupying; and, elsewhere at the property, the barrel of a firearm and two pistol magazines capable of housing nine millimetre and .22 ammunition respectively.

[2] Mr Rowell pleaded guilty to charges of: unlawful possession of a pistol under s 50 of the Arms Act 1983; assaulting a police officer; and (almost entire) breach of a June 2017 community work sentence imposed for a previous charge of possessing a firearm.

Decision under appeal

[3] On 17 December 2018, Judge A C Roberts sentenced Mr Rowell in the Auckland District Court.1 The Judge set a starting point of 18 months’ imprisonment for unlawful possession of the pistol, uplifted it for two months for the previous convictions, uplifted it by another four months for the other charges and reduced the total by 25 per cent, or six months, for an early guilty plea. The end sentence was one year and six months’ imprisonment.2 The Judge declined to impose home detention because the home address was not appropriate, Mr Rowell had not readily complied with sentence obligations, the offending was serious and the principles of denunciation and deterrence needed to be underscored, in his view.3

[4] Mr Rowell appeals the sentence for the pistol possession charge and the decision not to impose home detention. Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if I am satisfied there is an error in the sentence imposed and a different sentence should be imposed. Otherwise, I must dismiss the appeal. I focus on whether the end sentence is within the available range.4

1 New Zealand Police v Rowell [2018] NZDC 27162.
2 At [12].
3 At [13].
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

Submissions

[5] Mr Taumihau, for Mr Rowell, submits the Judge erred in stating the maximum penalty for the offence was four years rather than three years and in stating that ammunition was found.5 He submits the Judge erred in: setting a manifestly excessive starting point; and not imposing home detention as the least restrictive sentence. He does not now contest the uplift of two months for the previous convictions. He submits a starting point…

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 Rowell v Police

Details

AGLC: Rowell v Police [2019] NZHC 471
Case: [2019] NZHC 471
Decision Date: 18 March 2019

CaseChat Overview and Summary

David Tairi Rowell appeals against his sentence for unlawful possession of a pistol, imposed by Judge A C Roberts in the Auckland District Court, as well as the decision not to impose home detention. The appeal was heard by Palmer J in the High Court at Auckland. The central issues were whether there was an error in the sentence imposed and whether a different sentence should be substituted. Mr Rowell's counsel argued that the starting point of 18 months' imprisonment for the unlawful possession of the pistol was excessive and that home detention should have been imposed as the least restrictive sentence. The Crown conceded that the maximum penalty was misstated but argued that the starting point was appropriate and that imprisonment was generally warranted for offences involving firearms.

Palmer J considered the arguments and relevant case law. The misstatement of the maximum penalty and the presence of ammunition were not considered material errors. The 18-month starting point was deemed to be within the appropriate range, given the context of the offence and the relevant case law. The judge's decision not to impose home detention was upheld, as the factors considered by Judge Roberts were deemed relevant and compelling. The potential danger posed by the possession of a loaded firearm, even if unloaded in this instance, justified the imposition of imprisonment to express society's condemnation. Therefore, the appeal was dismissed.

Orders