HOWE v NEW ZEALAND POLICE [2021] NZCA 604
Leave to appeal was granted because the appellant raised arguable errors — an incorrect assumption about the availability of a residential rehabilitation facility for home detention and a potential failure to assess whether home detention with GPS monitoring could adequately protect public safety — that could amount...
Source-derived case information.
- Citation
- [2021] NZCA 604
- Parties
- Appellant: Darwin Marlin Howe; Respondent: New Zealand Police
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 12 November 2021
- Procedural Posture
- Criminal – Second Appeal Under S 253 Criminal Procedure Act 2011 (leave to Appeal Against Sentence) / Leave to Appeal Granted; Crown to File Submissions by 19 November 2021; One Hour Fixture Allocated Week Beginning 22 November 2021
- Outcome
- Leave to appeal against sentence granted under s 253 Criminal Procedure Act 2011.
- Legal Topics
- Leave to Appeal, Home Detention, Residential Rehabilitation Facility, GPS Monitoring, Miscarriage of Justice
Source-derived case record
Summary, issues, holding and outcome
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Parties
Darwin Marlin Howe
Appellant
New Zealand Police
Respondent
Procedural Posture
Criminal – Second Appeal Under S 253 Criminal Procedure Act 2011 (leave to Appeal Against Sentence) / Leave to Appeal Granted; Crown to File Submissions by 19 November 2021; One Hour Fixture Allocated Week Beginning 22 November 2021
Legal Issues
- 1 Whether sentencing proceeded on an incorrect assumption about availability of a residential rehabilitation facility as an address for home detention
- 2 Whether the sentencing Judge failed to consider whether home detention with GPS monitoring could address the public safety risk posed by the appellant
- 3 Whether those errors amount to a miscarriage of justice warranting leave under s 253
Ratio Decidendi
Leave to appeal was granted because the appellant raised arguable errors — an incorrect assumption about the availability of a residential rehabilitation facility for home detention and a potential failure to assess whether home detention with GPS monitoring could adequately protect public safety — that could amount to a miscarriage of justice warranting full appellate consideration.
Court Disposition
Leave to appeal against sentence granted under s 253 Criminal Procedure Act 2011.
Orders
- The application for leave to appeal to this Court against sentence is granted.
- The Crown must file its submissions on the appeal by Friday, 19 November 2021.
Full Case Text
Judgment text and source record
1 paragraphs
HOWE v NEW ZEALAND POLICE [2021] NZCA 604 [12 November 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA532/2021[2021] NZCA 604BETWEEN DARWIN MARLIN HOWEAppellantAND NEW ZEALAND POLICERespondentCourt: Miller, Goddard and Katz JJCounsel: M G Robinson and S J McDonald for AppellantA H N Forward-Taua for RespondentJudgment:(On the papers)12 November 2021 at 4.30 pmJUDGMENT OF THE COURTA The application for leave to appeal to this Court against sentence isgranted.B The Crown must file its submissions on the appeal by Friday, 19 November2021.C A one hour fixture will be allocated by the Registrar in the week beginning22 November 2021.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)[1] On 8 July 2021 Mr Howe was sentenced in the District Court to 13 months'imprisonment, with leave to commute the sentence to home detention should Mr Howeobtain a place in a suitable residential rehabilitation facility.1 His appeal to theHigh Court against that sentence was dismissed by Churchman J on 12 August 2021.2[2] Mr Howe seeks leave to bring a second appeal against sentence to this Court,under s 253 of the Criminal Procedure Act 2011.[3] We grant leave to Mr Howe to bring a second appeal against sentence unders 253 of the Criminal Procedure Act. Counsel should focus their submissions onwhether a miscarriage of justice occurred as a result of an incorrect assumption aboutthe potential availability of a residential rehabilitation facility as an address at whichto serve a sentence of home detention, and/or as a result of a failure to consider whetherthe risk to public safety posed by Mr Howe could be adequately addressed by asentence of home detention, with GPS monitoring. However that does not precludecounsel from addressing other issues.[4] The appeal needs to be heard promptly given the 13 month sentence, of whichMr Howe has already served some 4 months. The Court already has the benefit ofdetailed submissions for Mr Howe on the application for leave to appeal. Those willbe taken as his submissions on appeal. The Crown must file submissions on the appealby Friday 19 November 2021. A one hour fixture will be allocated in the weekbeginning 22 November 2021.Solicitors:Robinson Legal, Wellington for AppellantCrown Law Office, Wellington for Respondent1 Police v Howe [2021] NZDC 13856.2 Howe v Police [2021] NZHC 2087.