The appellant, Leon Rowles pleaded guilty in the High Court at Invercargill to one count of causing grievous bodily harm with intent.[1] Mander J sentenced him on 26 August 2015 to eight years’ imprisonment with a minimum period of imprisonment of four years and required him to pay reparation of $1,000.[2] Mr Rowles appeals his sentence. He says that the sentencing Judge erred in:
(a)taking too high a starting point;
(b)allowing too small a discount for personal mitigating features; and
(c)allowing too small a discount for the guilty plea.
The Crown responds that the starting point and discounts were all within the available range and that the end sentence was not manifestly excessive.
The offending
There is no dispute over the nature of the offending because it was captured on CCTV footage. Just after 3 am on 9 May 2015 Mr Rowles and an associate went into a convenience store in Wanaka. They attacked another man who was ordering food. The unprovoked attack took four and a half minutes. Between them Mr Rowles and his co-defendant inflicted 80 blows on the victim’s head and body.
Mr Rowles participated in the attack by punching and kicking the victim, holding him around the arms and shoulders while his co-defendant punched the victim’s face and head, punching and elbow-striking the victim while he was, in turn, being held by the co-defendant, ushering another customer out of the shop and checking the street outside, kicking and punching the victim as the co-defendant dragged him to the rear of the shop, stomping on the victim’s stomach and striking the victim’s head. For a period of over one and a half minutes, while the victim was lying unconscious, Mr Rowles and his co-defendant continued to stomp on his head and face. Finally, the attack ended with Mr Rowles pulling the co-defendant away but, even then, Mr Rowles delivered further final kicks to the unconscious man.
The effect on the victim has been devastating. He suffered a subdural hematoma and was in a coma for 12 days and in the critical care unit for 24 days. He suffers from profound long-term effects of his brain injury and has had to learn to walk, speak, eat, shower and toilet again. He struggles to walk properly and converse…
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.
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Details
AGLC
Rowles v R [2016] NZCA 208
Case
[2016] NZCA 208
Decision Date
CaseChat Overview and Summary
Leon Terence Rowles, the appellant, has appealed against his sentence for causing grievous bodily harm with intent. Rowles' appeal was heard in the Court of Appeal of New Zealand, presided over by Kós, Courtney, and Gilbert JJ. The appeal was against the sentence of eight years’ imprisonment with a minimum period of four years imposed by Mander J in the High Court at Invercargill. Rowles' counsel argued that the sentence was too high and that the Judge had not sufficiently considered personal mitigating factors and the impact of the guilty plea. The Crown argued that the sentence was within the appropriate range and that the Judge had correctly assessed the mitigating factors and the guilty plea.
The Court found that the starting point of ten and a half years was within the range available to the Judge. However, the Court considered that the discount for mitigating factors, particularly remorse, was inadequate. The Court found that an eight per cent discount for remorse would have been appropriate. Additionally, the Court found that an additional two per cent discount for personal factors would be appropriate, leading to a total discount of ten per cent for personal factors and remorse. Finally, the Court found that the full 25 per cent discount for the guilty plea should have been allowed. This leads to an end sentence of seven years one month’s imprisonment, with a minimum period of three years six months’ imprisonment.
The appeal was allowed, and the sentence was quashed and substituted with a sentence of seven years one month’s imprisonment, with a minimum period of imprisonment of three years six months.