Bowman v R - [2010] NZCA 162

IN THE COURT OF APPEAL OF NEW ZEALAND
CA23/2010
[2010 ] NZCA 162
BETWEENDANIEL GEORGE MAEHE BOWMAN

Applicant

ANDTHE QUEEN

Respondent

Hearing:26 April 2010

Court:Baragwanath, MacKenzie and Lang JJ
Counsel:E J Forster for Applicant

M J Inwood for Respondent

Judgment:3 May 2010 at 2.30pm

JUDGMENT OF THE COURT

The application for an extension of time to appeal is refused.
____________________________________________________________________

REASONS OF THE COURT
(Given by MacKenzie J)
Introduction
[1] The applicant seeks to appeal against a sentence of four years imprisonment imposed after trial in the District Court at Palmerston North before Judge Lynch and a jury on two counts of wounding with intent to cause grievous bodily harm. The notice of appeal was filed out of time, so an extension of time for appealing is sought.
The facts
[2] The facts, as they emerged at trial, were described by Judge Lynch at sentencing in these terms:
[2] On Saturday evening, 12 April 2008 you were at the Mangatera Hotel in Dannevirke with a friend. The victim Bevan Hewitt was also there with friends from his rugby team. There was some sort of incident where you gestured in some way behind Mr Hewitt who was taking a shot on the pool table.
[3] Mr Hewitt himself did not see that but was told by one of his friends. You had gone out to the garden bar. Mr Hewitt followed you out to confront you about what it was said that you had done.
[4] I find that in doing so he had a number of his friends about him. There was some mutual pushing and shoving, but you ended up hitting Mr Hewitt with a bottle causing a cut on the left side of his face near his eyebrow. It was all broken up quickly and the hotel closed.
[5] Now that decision caused a great deal of heat and Mr Hewitt’s friends or those known to him were calling you out to fight. Inevitably this all did not stop there. Had wiser heads prevailed both on your part and the others involved this need not have gone any further.
[6] The inevitable confrontation outside the hotel rolled up Ruahine Road to the railway tracks. It is fair to say that you got the worst of that. You ended up on the ground having tripped up or [been] knocked down. Mr Hewitt accepted he had hit you at about 12 times to the head and face and that you were only able to hit him three or four times.
[7] You ended up running up the road, but had had your clothes taken off you by either Mr Hewitt or by his friends. You went to your cousin’s house arriving in your boxers. He gave you clothes and he and two others he was with returned down the hill with you. The purpose, I find, was to enable you to get your clothes and your cousin’s role, as he said, was to make sure you were not “jumped again”.

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 R

Details

AGLC: Bowman v R [2010] NZCA 162
Case: [2010] NZCA 162
Decision Date: 3 May 2010

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an application by Daniel George Maehe Bowman to extend the time for appealing his four-year imprisonment sentence imposed after a trial in the District Court. The appeal was filed out of time, necessitating a request for an extension. The legal issues before the court were whether the sentencing judge erred in his approach when determining the starting point and whether the sentence was manifestly excessive. Counsel for the applicant argued that the judge erred by considering both counts together, failing to evaluate the seriousness of the factors, inadequately allowing for provocation and excessive self-defence, and not properly assessing the totality of the offending. The Crown contended that the judge could justifiably have adopted a higher starting point and that the end sentence was, if anything, lenient. The Court of Appeal found that the sentencing judge's approach was appropriate, as the two phases of the incident were closely connected. The judge's evaluation of the seriousness of the factors was deemed appropriate, and the reduction for provocation and excessive self-defence was considered adequate. The court concluded that the sentence was within the available range, rendering any appeal unlikely to succeed, and thus refused the extension of time sought.

The final orders of the court were to refuse the extension of time to appeal.

Orders