Bowman v Police - [2017] NZHC 884

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2017-443-5 [2017] NZHC 884

BETWEEN
HURA BOWMAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 May 2017

Counsel:

N Bourke for Appellant
G N Milne for Respondent

Judgment:

4 May 2017

JUDGMENT OF ELLIS J

[1] On 15 March 2017, Mr Bowman was sentenced to 33 months’ imprisonment

for:1

(a) three charges of burglary; and

(b) one charge of receiving.2

[2] He now appeals against that sentence on a number of grounds.

1 Police v Bowman [2017] NZDC 5389.
2 He was also convicted and discharged on one charge of possession of cannabis, one charge of breach of community work and one charge of breach of supervision.

BOWMAN v POLICE [2017] NZHC 884 [3 May 2017]

The relevant offending

[3] On 3 September 2016, an associate of Mr Bowman’s, Mr Boyle, went to a house in Hawera and stole two televisions, a tablet and a playstation, valued at around $2,220. He took these things to Mr Bowman’s home and together they sold them to persons unknown. Those events gave rise to the receiving charge.

[4] The following day, Messrs Boyle and Bowman were driving around Hawera. They parked their car outside a house there and knocked on the door. They were seen by someone across the road. They went around the back where they found the back door was unlocked. Both men went inside. Mr Bowman took one television to the back door. He told Mr Boyle there was another one. Mr Boyle then took both televisions and put them in the back of their car. The men also took some jewellery. The total value of the things taken was around $1,550.

[5] Early in the morning of 9 September 2016, the two men drove to a house in Normanby. Mr Boyle stayed in the car while Mr Bowman knocked, first on the front, and then the back door. Again, the back door was unlocked and both men entered the house. They took property from inside valued at approximately $1,050.

[6] Later that same morning, they parked in a driveway in Egmont Street in Hawera. Mr Bowman told Mr Boyle to check out the house. A neighbour saw them both and called Police. In the meantime, Mr Boyle forced open a door and went inside. Mr Bowman checked out the garage. Mr Boyle picked up something from the lounge but when he saw a Police car pull into the drive he ran from the address empty-handed.

[7] Mr Boyle went to a house on Reid Avenue and changed his jersey. Then he went to the Hawera Police station and made a complaint that his car had been stolen. He was later arrested, as was Mr Bowman. The car they had been driving, which belonged to Mr Boyle’s father, was found at the Egmont Street address, with the keys still in the ignition. Stolen property was found in the car.

[8] A search conducted at the Police Station revealed 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 Bowman v Police

Details

AGLC: Bowman v Police [2017] NZHC 884
Case: [2017] NZHC 884
Decision Date: 4 May 2017

CaseChat Overview and Summary

The case of Bowman v Police involves an appeal against sentence by the appellant, Mr Bowman, who was sentenced to 33 months’ imprisonment for three charges of burglary and one charge of receiving. The sentencing judge had adopted a starting point of three years for the burglary charges, which Mr Bowman argued was excessive, particularly in light of the fact that his co-offender, Mr Boyle, had been sentenced to nine months’ home detention for twice as many burglary charges. Mr Bowman further contended that the eight-month uplift was excessive, and that the sentence was inconsistent with Mr Boyle’s sentence. He also argued that he was not given credit for the six months he spent on a 24-hour curfew or for his youth. Finally, Mr Bowman contended that the end sentence was outside the available range and manifestly excessive.

The court agreed with Mr Bowman that the starting point of three years was excessive when compared to the 30-month starting point for Mr Boyle. The court held that the marked difference in the sentences imposed on co-offenders, for which no justification could be shown, may be of importance to the administration of justice and may justify a reduction in a sentence imposed on one which would otherwise be appropriate. The court also found that the eight-month uplift was excessive and that Mr Bowman should have been given credit for the six months he spent on 24-hour curfew. The court found that the end sentence was manifestly excessive and substituted a sentence of nine months’ home detention.

The court held that the appeal against sentence was allowed and the sentence of 33 months imprisonment was quashed. A sentence of nine months’ home detention was substituted, with the sentence to commence on the day after the date of the judgment. Mr Bowman was to attend alcohol and drug counselling, an assessment for Short Rehabilitative Programmes and a Tikanga Programme as directed by his Probation Officer.

Orders