Bowie v Police - [2016] NZHC 216

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000115 [2016] NZHC 216

BETWEEN
LEVI TYSON BOWIE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 16 February 2016

Appearances:

E Huda for the Appellant
C E Martyn for the Respondent

Judgment:

18 February 2016

JUDGMENT OF NATION J

[1] On 21 October 2015, the appellant was sentenced on a charge of driving with excess breath alcohol to a six month disqualification from holding or obtaining a driver licence. He appeals his sentence on the basis that the District Court Judge erred when he exercised a discretion, under s 85 of the Land Transport Act 1998, to set the commencement date for that disqualification at 2 January 2016 instead of the date of sentencing.

[2] At the date of sentencing, the appellant was already subject to a disqualification period of three months for the accumulation of demerit points, which began on 2 October 2015.

[3] The appeal is brought under s 244 of the Criminal Procedure Act 2011.

BOWIE v POLICE [2016] NZHC 216 [18 February 2016]

[4] Under s 250 of the Criminal Procedure Act, this Court may only allow an appeal against sentence if it is satisfied there has been an error in the imposition of the sentence and, in that event, a different sentence should be imposed.1

[5] There being no assertion that the Judge misdirected himself as to a question of fact, the appeal falls to be decided on the question of whether the Judge erred in law in imposing the sentence he did.

[6] For the appellant, Mr Huda submitted the Judge made an error of law in not giving reasons when deciding to exercise his discretion to delay the commencement of the six month period of disqualification. Mr Huda submitted that s 31 of the Sentencing Act 2002 imposed an obligation on the sentencing Judge to provide reasons for his decision.

[7] For the Police, Ms Martyn accepted the Judge did not articulate reasons and, in that sense, implicitly accepted there was an error. However, she stated the reason was clear to all and was apparent from the record. The appellant’s licence had been suspended for three months beginning 2 October 2015 as a result of accumulating
100 or more demerit points within a two year period. The commencement of the six months’ disqualification on the excess breath alcohol charge was suspended to give effect to that initial period of suspension and to ensure there was an additional penalty of six months’ disqualification, as required by the legislation, in respect of the appellant’s driving with excess breath alcohol on 2 October 2015.

[8] The Judge’s omission to expressly refer to reasons is not, of itself, a sufficient ground for interfering with the sentence which was imposed on the excess breath alcohol charge by the Judge. I can allow the appeal only if I am satisfied that a different sentence should have been imposed. If not so satisfied, I am required to dismiss the appeal.

[9] Mr…

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.

Continue reading Bowie v Police

Details

AGLC: Bowie v Police [2016] NZHC 216
Case: [2016] NZHC 216
Decision Date: 18 February 2016

CaseChat Overview and Summary

Levi Tyson Bowie appealed his sentence against the New Zealand Police, arguing that the District Court Judge erred when he exercised a discretion to set the commencement date for a six-month disqualification from holding or obtaining a driver licence at 2 January 2016 instead of the date of sentencing. At the time of sentencing, Bowie was already subject to a three-month disqualification period for the accumulation of demerit points, which began on 2 October 2015. The appeal was brought under section 244 of the Criminal Procedure Act 2011.

The legal issues the court had to decide were whether the Judge misdirected himself as to a question of fact and whether the Judge erred in law in imposing the sentence he did. The appellant argued that the Judge made an error of law in not giving reasons when deciding to exercise his discretion to delay the commencement of the six-month period of disqualification. The respondent accepted that the Judge did not articulate reasons but argued that the reason was clear to all and was apparent from the record.

The Court found that the Judge's omission to expressly refer to reasons was not, in itself, a sufficient ground for interfering with the sentence which was imposed on the excess breath alcohol charge by the Judge. The Judge was required to impose a minimum six-month period of disqualification, and it was not suggested that the Judge could or should have imposed disqualification for any lesser period. The Court found that the Judge gave full effect to the relevant legislation and ensured that Bowie suffered the penalty of a disqualification for six months, as the legislation required, given his conviction for an excess breath alcohol offence. The Court found no basis on which a different sentence should have been imposed, and the appeal was dismissed.

The final orders were that the appeal was dismissed, and the original sentence was upheld.

Orders