Bowlin v The Queen - [2015] NZCA 137

IN THE COURT OF APPEAL OF NEW ZEALAND

CA686/2014
[2015] NZCA 137

BETWEEN	JOEL DYLAN BOWLIN Applicant
AND	THE QUEEN Respondent

Hearing:	5 March 2015
Court:	Harrison, Fogarty and Dobson JJ
Counsel:	J Munro for Applicant K J Cooper for Respondent
Judgment:	29 April 2015 at 3.15 pm

JUDGMENT OF THE COURT

AAn extension of time to appeal is granted.

B The application for leave to appeal to this Court is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

Joel Bowlin pleaded guilty in the Waitakere District Court to two charges of driving with excess breath alcohol causing death. He was convicted and sentenced to 21 months imprisonment and disqualified from driving for two years.[1] His appeal to the High Court against sentence was dismissed.[2]
[1]R v Bowlin DC Waitakere CRI-2014-090-445, 23 July 2014 [Sentencing notes].
[2]Bowlin v R [2014] NZHC 2635 [High Court judgment].
Mr Bowlin now applies for leave to bring a second appeal against sentence.[3] His two substantive grounds are that in the District Court Judge Bergseng erred in imposing a term of imprisonment instead of home detention and that the sentencing indication procedure was unfair.
[3]Criminal Procedure Act 2011, s 253.
Mr Bowlin’s application was filed out of time and he seeks an extension. The Crown does not oppose. We are satisfied by Mr Bowlin’s explanation for his delay and an extension is granted accordingly.

District Court

In the early hours on Saturday, 24 August 2013 Mr Bowlin was driving a van which crashed. Two of his passengers died in the accident. Mr Bowlin suffered relatively minor injuries. His blood alcohol level was 113 milligrams of alcohol per 100 millilitres of blood: his allowable legal limit for driving as a 21 year old was 80 milligrams of alcohol.
Mr Bowlin appeared before Judge Bergseng for a sentencing indication. The Judge indicated that taking into account personal mitigating circumstances the case might be in the range where a non-custodial sentence could be imposed. He specifically left open the option of a sentence of home detention, noting that all relevant information would need to be considered in determining whether such a sentence would be suitable.[4]
[4]Bowlin v R DC Waitakere CRI-2014-090-445, 14 May 2014 at [48].
Mr Bowlin entered guilty pleas following this indication. At sentencing the Judge adopted an orthodox approach. He fixed a starting point of three years imprisonment.[5] He allowed a substantial discount for mitigating features including previous good character, steps taken to address the offending, a guilty plea and remorse.[6] However, he was satisfied that the requirements of denunciation and deterrence required a sentence of imprisonment.[7]

High Court

[5]Sentencing notes, above n 1, at [24].

[6]At [26]–[28].

[7]At [29]–[33].

Mr Bowlin appealed to the High Court on the ground that Judge Bergseng erred in imposing a sentence of imprisonment rather than home detention. Gilbert J correctly identified the question for determination as whether the Judge had erred in exercising his sentencing discretion.[8] He rejected an argument that the…

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 The Queen

Details

AGLC: Bowlin v The Queen [2015] NZCA 137
Case: [2015] NZCA 137
Decision Date: 29 April 2015 at 3.15 pm

CaseChat Overview and Summary

Joel Dylan Bowlin, the applicant, sought an extension of time and leave to appeal against his sentence, which was imposed by the Waitakere District Court. The respondent, the Crown, did not oppose the extension of time. The central issues were whether the District Court Judge had erred in imposing a term of imprisonment instead of home detention and whether the sentencing indication procedure was fair. The Court of Appeal examined whether the appeal involved a matter of general or public importance or if a miscarriage of justice might occur unless the appeal was heard.

The Court of Appeal found that the District Court Judge had not erred in imposing a sentence of imprisonment instead of home detention. The Court held that the Judge had considered all relevant issues and that the requirements of denunciation and deterrence justified the sentence of imprisonment. The Court also determined that the Judge had not made any commitment to impose home detention and had clearly indicated that imprisonment was an option. The Court concluded that the grounds for appeal did not meet the threshold for leave to appeal to the Court of Appeal. Therefore, the application for leave to appeal was dismissed.

An extension of time to appeal was granted to the applicant. The application for leave to appeal to the Court of Appeal was dismissed.

Orders