Bowlin v Police - [2014] NZHC 2066

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000237 [2014] NZHC 2066

JOEL BOWLIN

v

NEW ZEALAND POLICE

Hearing: 5 August 2014

Counsel:

J D Munro for the Appellant
W P Cathcart for the Respondent

Judgment:

29 August 2014

REASONS JUDGMENT OF DUFFY J [Re Appeal Against Refusal to Grant Bail]

This judgment was delivered by Justice Duffy on 29 August 2014 at 3.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: J D Munro, Auckland

Solicitors: Meredith Connell, Auckland

BOWLIN v POLICE [2014] NZHC 2066 [29 August 2014]

Summary

[1] On 5 August 2014, I delivered a result judgment in which I allowed Joel Bowlin’s appeal against the refusal of the District Court to grant him bail pending the determination of his appeal against sentence. My reasons now follow.

Background

Facts of offending

[2] Mr Bowlin is 22 years of age. On 24 August 2013, he was driving a Toyota Hiace van at around 2.45 am in Kumeu. In the front of the van were two passengers: 19 year old Mr Gibbs; and 20 year old Ms Walsh. Mr Bowlin lost control of the van, rolled violently over an open drain and collided with a retaining post and brick feature wall. He incurred minor injuries. Both passengers died at the scene.

[3] Tests revealed that Mr Bowlin had a blood alcohol level of 113 milligrams of alcohol per 100 millilitres of blood. The legal limit is 80 milligrams of alcohol per
100 millilitres of blood: see s 56(2) of the Land Transport Act 1998. The New Zealand Police (“police”) laid two charges of driving with excess blood alcohol causing the death of a person under ss 61(1)(b) and 61(3AA) of the Land Transport Act.

District Court sentencing indication given on 14 May 2014

[4] On 14 May 2014, Judge Bergseng gave a sentence indication. He indicated that an appropriate starting point would be a term of imprisonment of between three years and three years and three months’ imprisonment.

[5] The Judge then canvassed the personal mitigating factors and said:

[44] In my view the credit that you would be entitled to would be somewhere in the vicinity of 15 to 20 months [sic].

[6] After noting that the appellant would be entitled to a full 25 per cent guilty plea discount, the Judge said that the end sentence was one which would be within the range of home detention: [48]. However the Judge declined to comment on whether home detention or any other community-based sentence would be an appropriate end result without more information.

District Court sentencing notes

[7] After the sentence indication from Judge Bergseng, on 22 May 2014

Mr Bowlin pleaded guilty. Mr Bowlin was sentenced on 23 July 2014. He had one minor previous offence, which the Judge considered to be not relevant; so Mr Bowlin was treated as if was a first time offender.

[8] The Judge considered the nature of the offending and noted that…

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 Bowlin v Police

Details

AGLC: Bowlin v Police [2014] NZHC 2066
Case: [2014] NZHC 2066
Decision Date: 29 August 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Joel Bowlin appealed against the District Court's refusal to grant him bail pending the determination of his appeal against sentence. Bowlin was convicted of driving with excess blood alcohol causing the death of two passengers in a car accident. He was sentenced to 21 months' imprisonment, but he appealed the sentence on the grounds that it was manifestly excessive. Bowlin's appeal against the refusal of bail was heard by Justice Duffy, who allowed the appeal and granted Bowlin bail. The grounds of appeal were that the District Court Judge erred in determining that the grounds for appeal of sentence were weak, did not take into account Bowlin's vulnerability due to his young age and PTSD, and did not consider the views of some family members of the victims on clemency. The court found that Bowlin had a strong arguable case that a sentence of home detention should have been imposed instead of a term of imprisonment, and that the refusal to grant bail was a decision that was plainly wrong. The court considered that it would be in the interests of justice to grant bail in this case, taking into account the apparent strength of the grounds of appeal, the length of the sentence, the likely length of time that will pass before the appeal is heard, and Bowlin's personal circumstances. The court also noted that the sentence indication was arguably opaque, and that Bowlin was likely to spend three months in prison before the appeal hearing, which would equate to almost 30 per cent of the likely time that he would serve on a 21-month sentence. The final orders were that Bowlin be granted bail pending the hearing of the appeal against sentence.

Orders