Howe v Police [2021] NZCA 604 (12 November 2021)

Last Updated: 16 November 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA532/2021 [2021] NZCA 604

	BETWEEN	DARWIN MARLIN HOWE Appellant
	AND	NEW ZEALAND POLICE Respondent

Court:	Miller, Goddard and Katz JJ
Counsel:	M G Robinson and S J McDonald for Appellant A H N Forward-Taua for Respondent
Judgment: (On the papers)	12 November 2021 at 4.30 pm

JUDGMENT OF THE COURT

1. The application for leave to appeal to this Court against sentence is granted.
2. The Crown must file its submissions on the appeal by Friday, 19 November 2021

100. A one hour fixture will be allocated by the Registrar in the week beginning 22 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 Howe obtain a place in a suitable residential rehabilitation facility.^[1] His appeal to the High 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 under s 253 of the Criminal Procedure Act. Counsel should focus their submissions on whether a miscarriage of justice occurred as a result of an incorrect assumption about the potential availability of a residential rehabilitation facility as an address at which to serve a sentence of home detention, and/or as a result of a failure to consider whether the risk to public safety posed by Mr Howe could be adequately addressed by a sentence of home detention, with GPS monitoring. However that does not preclude counsel from addressing other issues.
• [4] The appeal needs to be heard promptly given the 13 month sentence, of which Mr Howe has already served some 4 months. The Court already has the benefit of detailed submissions for Mr Howe on the application for leave to appeal. Those will be taken as his submissions on appeal. The Crown must file submissions on the appeal by Friday 19 November 2021. A one hour fixture will be allocated in the week beginning 22 November 2021.

Solicitors:
Robinson Legal, Wellington for Appellant
Crown Law Office, Wellington for Respondent

---

^[1] Police v Howe [2021] NZDC 13856.

^[2] Howe v Police [2021] NZHC 2087.