Howell v Police [2014] NZHC 1060 (20 May 2014)

Last Updated: 2 July 2014

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-000017 [2014] NZHC 1060

CLYDE MATHEW HOWELL Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	5 May 2014
Appearances:	Greg Burt for the Appellant Andrew Hill for the Respondent
Judgment:	20 May 2014

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by on 20 May 2014 at 4:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

_Date:

HOWELL v NEW ZEALAND POLICE [2014] NZHC 1060 [20 July 2014]

Introduction

[1] The appellant, Clyde Mathew Howell, was sentenced to 12 months’ imprisonment in the Rotorua District Court on 18 March 2014. He pleaded guilty on one charge of assault with intent to injure and one charge of wilful damage. He appeals against that sentence.

Facts

[2] The events giving rise to the charges occurred in December 2013. The appellant believed his partner was having an affair with the victim. Impersonating his partner he texted the victim and obtained the latter’s address and when he would be home.

[3] The appellant, intending to confront the victim for the purpose of determining the truth or otherwise of the relationship, drove to the victim’s home which was some 45 minutes away.

[4] On arriving at the victim’s address he knocked on the door. It was answered by the victim who introduced himself. The appellant told the victim he was the partner of the woman the victim had been sleeping with. The victim responded that the appellant was wrong and invited him inside to discuss it.

[5] The two men sat down and began to talk. At one point the appellant said he wanted to kill someone. Understandably, the victim felt intimidated and moved to get his mobile telephone.

[6] The appellant then punched him causing him to fall to the ground. He stood over him and, according to the summary of facts, pummelled him with a barrage of punches.

[7] The victim pleaded for the appellant to stop and attempted to get up. He was again hit to the ground.

[8] The victim made his escape through a ranch slider, grazing his knees as he escaped.

[9] The appellant took the victim’s cell phone and left the scene.

[10] As a result of the attack the victim received a cut to the top of his head, swelling and bruising to his cheek and nose. The nail from his big toe was torn off. He suffered a sore back and sternum.

[11] The appellant pleaded guilty on 5 February 2014 on his third appearance.

District Court decision

[12] Although the sentencing Judge acknowledged the strong submissions made by the appellant’s counsel that he be kept in the community on an electronically monitored sentence and taking into account a letter of apology, the Judge observed that the weight of the previous convictions left him unable to reach a position where the balance was tipped in favour of an electronically monitored sentence.

[13] The Judge referred to the appellant’s nine previous violence-related offences with the most recent being male assaults female in 2012 for which he received a sentence of community work and supervision. His Honour observed that that sentence should have equipped the appellant with the emotional tools to deal with issues short of resorting to violence.

[14] Of particular significance to the sentencing Judge was the conduct of the appellant in travelling to the victim’s address and attacking the victim in his home; a place where he was entitled to feel safe.

[15] In addition to imposing a sentence of 12 months’ imprisonment, his Honour directed the appellant to attend and complete such counselling, programme or treatment to address his offending as may be directed by the probation officer to the satisfaction of the probation officer and the programme provider.

[16] The economic sentencing remarks of the experienced Judge no doubt reflect the business of the list Court on the day. The Judge did not identify a starting point for the offending nor did he identify any adjustments either in relation to the offending or the offender. The end sentence was simply adopted after the Judge had referred to the appellant’s previous convictions and the circumstances of the offending.

Sentence appeal

[17] Appeals against sentence to this Court are governed by s 250 of the Criminal

Procedure Act 2011. This requires the Court to allow the appeal if:

(a) for any reason there is an error in the sentence imposed on conviction;

and

(b) a difference sentence should be imposed.

[18] In any other case the Court must dismiss the appeal (s 250(3)).

[19] Section 250 confirms the approach taken by the Courts under its predecessor, the Summary Proceedings Act 1957. The approach is set out in Yorston v Police where the Court said:¹

(a) there must be an error vitiating below a Court’s original sentencing

decision;

(b) the appeal must proceed on an “error of principle”;

(c) to establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court;

(d) it is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[20] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

The present appeal

[21] The sole ground of appeal is that the appellant submits he should have been sentenced to home detention rather than imprisonment.

[22] While the appellant’s broad ground of appeal is that the sentence was manifestly excessive, counsel narrowed the proposition to a submission that the Judge adopted an incorrect approach to sentencing resulting in a failure to properly consider a sentence of home detention, specifically:

(a) by failing to take into account relevant principles of sentencing in deciding to sentence to imprisonment rather than home detention;

(b) by failing to take into account relevant matters, namely that no emphasis was given to the appellant’s efforts at rehabilitation and the ability of home detention to deal with the appellant with a rehabilitative purpose;

(c) failure to take into account the requirement to impose the less restrictive sentence.

Relevant case law

[23] The following cases are of assistance when considering the option of home detention in the context of violent offending.

[24] In R v Luff-Pycroft the appellant pleaded guilty to one charge of injuring with intent to injure and two charges of assault with intent to injure.² He was sentenced to 18 months’ imprisonment. The appellant choked the victim and threatened her with a knife. On a subsequent occasion he pushed the same victim to the ground, kicked her and threatened to kill her with a knife. In the third episode of

offending involving the same victim, he attacked her by placing his hands around her neck, strangling her, biting her on various parts of her body. Her injuries included bruising and swelling. The sentencing Judge declined to allow home detention because of the seriousness of the offending which included numerous instances of violence extending over months.

[25] On appeal, the Court of Appeal recognised the appellant had made rehabilitative efforts and reconciliation attempts with his victim. ³ Although there were three separate episodes of offending committed over time, the appellant had an otherwise virtually clean record and his risk of re-offending was assessed as low. The Court of Appeal observed that the appropriate sentencing response was to recognise those rehabilitative efforts and provide a real chance for them to succeed.

[26] In R v Howie the appellant pleaded guilty to a charge of assault with intent to injure and one charge of intentional damage.⁴ His pleas followed a sentencing indication that the end sentence would be two years or less and that the Judge would “keep an open mind as to a sentence of home detention”. A sentence of two years’ imprisonment was imposed. The appellant and two co-offenders travelled to a residential address to exact retribution. They located the victim in a car. After causing damage to the car they attacked the victim. The appellant punched the victim a number of times. His co-offenders joined the attack using weapons. While

the victim’s injuries were not life threatening they were serious enough to require hospitalisation. The appellant was 21 at the time of the attack. He had a long list of previous convictions mostly for violence and dishonesty and had previously served a sentence of one years’ imprisonment for assault on police. He had also been previously sentenced to four months’ home detention on a range of dishonesty offences.

[27] The Court of Appeal concluded the Judge did not err. ⁵ The Court found he had acknowledged that the appellant’s culpability was less than that of his offenders’ and his participation was relatively limited. However, the offending was

_{premeditated and the Judge had expressly turned his mind to the option of a sentence}

³ _{Luff-Pycroft v R [2012] NZCA 107.}

⁴ _{R v Howie DC Dunedin CRI-2011-012-2857, 7 December 2011.}

⁵ Howie v R [2012] NZCA 55.

of home detention but declined to adopt it as a sentencing option because the appellant had been the recipient of such a sentence previously but had continued to offend.

Decision

[28] In the present case the Judge expressly made reference to considering a community-based sentence.⁶

[29] However, he did not refer to the appellant’s attempts to rehabilitate. I note the Court file contains a note dated 11 March 2014 confirming the appellant was attending a programme known as Tane Ora in Turangi and that as of 11 March 2014 he had completed two of the 10 sessions. The programme appears to be focused, inter alia, on the development of domestic violence intervention strategies. In the course of argument I asked Mr Burt if he was aware of what submissions, if any, had been made to the Judge on the question of rehabilitation. As he was not counsel at the sentencing he was unable to assist.

[30] However, in this Court, the appellant has filed a lengthy and detailed affidavit in which he explains the background to the offending and asserts his remorse.

[31] Of particular relevance is that shortly after the assault on 7 December 2013 the appellant actively sought help from a number of agencies and voluntarily enrolled in the Tane Ora Life Without Violence Programme. This is the programme noted on the Court file. He completed two sessions before he was imprisoned on the present charges. Reports from those involved in the programme refer to the appellant’s readiness to make transformative decisions in his life. He is described as being very proactive in his programme.

[32] There is also a letter dated 11 March 2014 recording the appellant’s engagement in a 12 session anger management and domestic violence programme with an organisation called Relationships Aotearoa. That letter records that it is

_{believed he would benefit by completing the programme.}

⁶ New Zealand Police v Howell DC, CRI-2013-069-001511, 18 March 2014 at [1] and [5].

[33] In another letter dated 18 April 2014 the appellant’s positive involvement in the local Muslim community is noted. The author, who describes himself as Missionary and Minister of Religion for the Ahmadiyya Muslim Jama’at New Zealand Inc. describes the appellant has being part of their community for more than two years noting that although he had had a challenging past, the appellant has shown a commitment towards making positive changes “on his journey towards high moral development as an Ahmadiyya Muslim”.

[34] The appellant is in a new relationship with a woman who he has known for a long time. She has made an affidavit observing the appellant is remorseful and has a shown a commitment to transform his life through attendance in the various programmes he volunteered for prior to imprisonment. She, herself, assisted in one of the programmes and speaks of his sincerity and commitment towards making a change in his life.

[35] References are also made to the fact that since his imprisonment he has enrolled in a rehabilitative programme although, given the commencement date, it is not guaranteed he will receive a place on the course.

[36] Little, if any, of this material was before the sentencing Judge. I have had the benefit of reviewing it. In doing so I do not ignore the Provision of Advice for Courts which records the appellant’s apparent absence of remorse. The appellant’s affidavit, supported by his partner’s affidavit, refers to his difficulties in communicating and describes the interview process as difficult. He expresses remorse.

[37] The expression of remorse is not only supported by his new partner but is independently supported by the authors of various letters referred to above. Again, this was not material available to the sentencing Judge.

[38] I note that the appellant has not previously served a sentence of home detention. I also note that he has only one conviction for breaching a Court order which was a conviction for breaching a release condition in 2006. He has received a

number of community-based sentences which he appears to have completed without breach.

[39] Considering these factors I am of the view that a sentence of home detention would be appropriate if there was a suitable residence. In accordance with s 26A of the Sentencing Act 2002, a pre-sentence report was prepared which considered the suitability of the proposed home detention residence. The nominated address is occupied by the appellant’s new partner and the appellant’s sister. Given the circumstances of the present offending and the appellant’s conviction in 2012 for male assaults female, I am not satisfied that this address is suitable.

Result

[40] Leave is given in accordance with s 80I to apply under s 80K for cancellation of the sentence of imprisonment and substitution of home detention if the offender

_{finds a suitable residence at a later date. Other than this the sentence is unchanged.}

Moore J

Solicitors:

Mr Burt, Rotorua

Crown Solicitor, Rotorua