HOWES v NEW ZEALAND POLICE [2019] NZHC 1841

HOWES v NEW ZEALAND POLICE [2019] NZHC 1841 [31 July 2019]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI 2019-488-0013[2019] NZHC 1841BETWEEN WAYNE LESLIE HOWESAppellantAND NEW ZEALAND POLICERespondentHearing: 31 July 2019Appearances: A M Dooney for the appellantKJG Macneil for the respondentJudgment: 31 July 2019ORAL JUDGMENT OF JAGOSE JThis judgment was delivered by me on 31 July 2019 at 9amRegistrar/Deputy Registrar.Solicitors/Counsel:K Macneil, Marsden Woods Inskip Smith, WhangareiA M Dooney, Barrister, AucklandBackground[1] On 10 April 2019, in a judge-alone trial, Judge D J Orchard in the District Courtat Whangārei found Wayne Leslie Howes guilty of one charge of assault with intentto injure, as a result of a road rage incident.1 On 23 May 2019, Judge Orchardsentenced him to imprisonment for two years and one month.2 Mr Howes appeals ongrounds the sentence was manifestly excessive.Approach on appeal[2] I must allow the appeal only if satisfied there is an error in the sentenceimposed, and a different sentence should be imposed.3 Otherwise, I must dismiss theappeal.4 The measure of error is the sentence be "manifestly excessive" – a principle"well-engrained" in the Court's approach to sentence appeals.5 That is to bedetermined by reference to the final sentence, not the route adopted to reach it.6 Howthe sentence was structured is not material.7Facts[3] On 3 August 2018, Mr Howes was driving on a residential road in Whangārei.He overtook Mr van Loggerenberg, indicating he should pull over. Thinking there wassomething wrong with his car, Mr van Loggerenberg did so. Mr Howes approachedMr van Loggerenberg's car as Mr van Loggernberg attempted to get out and, throughthe opened driver's door, punched him in his temple, causing him to fall back into hiscar. Mr Howes continued to punch and kick Mr van Loggerenberg's head and torsoseveral times, only stopping as other members of the public came to assist the victim.1 New Zealand Police v Howes [2019] NZDC 6933. Crimes Act 1961, s 193. Maximum penalty ofthree years' imprisonment.2 New Zealand Police v Howes [2019] NZDC 9911.3 Criminal Procedure Act 2011, s 250(2).4 Criminal Procedure Act 2011, s 250(3).5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27], [33] and [35].6 Ripia v R [2011] NZCA 101 at [15].7 Mita v R [2012] NZCA 137.District Court decision[4] Judge Orchard set the starting point for his sentence by identifying aggravatingfactors of the offending: attacking the head; road rage; the seriousness of the injury;and Mr van Loggerenberg's vulnerability. The Judge noted the significant impact ofthe attack on Mr van Loggerenberg, both then constrained by recent shoulder surgeryso as not to be able to defend himself or evade Mr Howes, and subsequently inexacerbating his recovery, now requiring complete replacement of his shoulder, andleaving him unable to care for his wife, recently diagnosed with a brain tumour, andso unable to work he lost his job.[5] Judge Orchard also had regard for the purposes and principles of sentencing:in particular, the principle requiring the maximum penalty be imposed whereoffending is within the most serious of its kind.8 The Judge considered Mr Howes mayhave been undercharged in regard to the present offending, and rejected his claim thathe was defending himself from someone who had attempted to deliver the first punch.In light of the serious nature of the offending, the impact on Mr van Loggerenberg, thevarious aggravating factors and the desire to denounce and deter such behaviour, theJudge adopted a starting point of two years and three months' imprisonment.[6] Judge Orchard found no reason for uplift, and applied a two-month deductionfor Mr Howes' chronic back pain as a mitigating factor, which may have impacted hisemotional state at the time of the offending.9 This resulted in an end sentence of twoyears' and one month's imprisonment. While the end sentence was close to the homedetention threshold, Judge Orchard said, even if it had been available, it would notadequately have addressed the principles and purposes of sentencing in this case.10Appeal[7] Mr Howes' counsel, Aaron Dooney, says the sentence was manifestlyexcessive, and from too high a starting point. The Judge double-counted Mr van8 Sentencing Act 2002, s 8(c).9 At [21].10 At [23], and see Sentencing Act 2002, s 15A(1)(a).Loggerenberg's vulnerability, referring to it both as an aggravating factor in its ownright, and again when discussing the seriousness of the injury caused.11[8] In reliance on caselaw,12 Mr Dooney says, with only two aggravating factors,the offending ought to fall within Tamihana's band two, and attract a lower start pointthan the 12- and 24-month start points in contended more serious offending. Heaccepts the Judge's two-month discount, and seeks Mr Howe's sentence be commutedto home detention.[9] Crown counsel, Kyle Macneil, responds the Judge's start point wasappropriate, as the offending was squarely within Tamihana's band three, andconsistent with comparable cases.13 The end sentence, he says, reflects Mr Howes'prolonged and unprovoked attack on a complete stranger.Discussion[10] There is no guideline judgment for the offence of assault with intent to injureunder s 193 of the Crimes Act 1961. But, in Tamihana, the Court of Appeal found theapproach adopted in the Nuku guideline judgment14 – of three bands, by reference toaggravating factors – "helpful in sentencing for offending contrary to s 193".15 Inessence, where there are few aggravating factors or only low-level violence, anon-custodial sentence may be appropriate. Three or fewer aggravating factors wouldattract a start point no higher than about 45% of the maximum sentence; three or morein serious combination would require a start point from about 30% "and up".16[11] The Judge did not double-count Mr van Loggerenberg's vulnerability; hissecond reference to that factor was only to describe the seriousness of his injury, given11 New Zealand Police v Howes, above n 2, at [13] and [16]–[17].12 Tamihana v R [2015] NZCA 169 at [16]–[18]; Tiplady-Koroheke v R [2012] NZCA 477; andKojeunikov v New Zealand Police [2013] NZHC 551.13 Devery v New Zealand Police [2013] NZHC 264; Kovalic v New Zealand Police [2019] NZHC1214; Ransfield v New Zealand Police [2014] NZHC 1046; and Kojeunikov v New Zealand Police,above n 12.14 Nuku v R [2012] NZCA 584, with reference to sentencing for wounding with intent to injure (s188(2): maximum seven years' imprisonment), injuring with intent to injure (s 189(2): maximumfive years' imprisonment) and aggravated wounding or injury (s 191(2): maximum seven years'imprisonment).15 Tamihana v R, above n 12, at [16].16 At [18].his shoulder surgery. The Judge's inclusion of Mr van Loggerenberg's injury'sseriousness as an aggravating factor only is justified if that seriousness may stand as aproxy for Mr Howes' culpability.17 But it very largely derives from Mr vanLoggerenberg's vulnerability, rather than being anything Mr Howes may be thoughtto have intended. On the other hand, the attack was in part to Mr van Loggerenberg'shead. And the prolonged and unprovoked violence meted out by Mr Howes is a thirdaggravating factor. The combination of aggravating factors was particularly serioushere: Mr van Loggerenberg's vulnerability meant he could not defend or evade MrHowes' significant and continued violence. Thus Nuku's third band is available,requiring a starting point here of at least 11 months' imprisonment, and not limited bythe second band's effective 16-month 'cap' (both from the three-year maximum term).[12] Comparator cases suggest a higher start point.18 In Devery, this Court acceptedthe offender there properly was assessed in Nuku's third band, with a starting point ofthree years' imprisonment. Although the offender returned to the fray with a weapon,exacerbating the offending, there was nothing to suggest that victim was particularlyvulnerable. The Judge said, of that 'road rage' incident, "random unprovoked violenceis a very culpable activity threaten[ing] the sense of safety that citizens are entitledto have driving about in a car".19 In Gibson v New Zealand Police – also a 'roadrage' type case resulting in convictions for wounding with intent to injure and assault,although there an appeal against refusal of home detention – a two-year, nine-monthstart point was not criticised.20 And, although there involving discharge of an air riflein the course of a 'road rage' incident, the same two-year, nine-month start point wasadopted in Stirling v New Zealand Police.21[13] The offending here is not comparable with Kojuenikov's "fairly minor assaultin the street following some provocation over in a moment", attracting a 12-monthstarting point.22 In Kovalic, although an appeal against refusal to grant dischargewithout conviction, this Court considered similar offending to be "moderately high",17 Nuku v R, above n 14, at [15].18 I do not consider the particular factual circumstances of Tiplady-Koroheke v R, above n 12, orRansfield v New Zealand Police, above n 13, to assist in establishing a starting point here.19 Devery v New Zealand Police, above n 13, at [18].20 Gibson v New Zealand Police [2012] NZHC 315.21 Stirling v New Zealand Police HC Nelson CRI 2011-442-0037, 8 December 2011 at [6].22 Kojeunikov v New Zealand Police, above n 12, at [25].only "quite weighty mitigating factors" resulting in a non-custodial sentence.23'Moderately high' suggests a start point in the top third of the available range.[14] Judge Orchard's two-year, three-month start point thus is entirely within range.I have no reason to disturb her subsequent deduction (or indeed, to apply any uplift).The end sentence therefore is not manifestly excessive, and the issue of homedetention does not arise. Even so, I accept the Judge had a basis – in the self-entitlednature of Mr Howes' offending and subsequent attitude, suggesting deterrence andprotection of the public were important factors – on which to consider the purposesand principles of sentencing would not be met by home detention.Result[15] The appeal is dismissed.—Jagose J23 Kovalic v New Zealand Police, above n 13, at [19]-[20].