Bowring v Police
[2021] NZCA 325
•20 July 2021 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA722/2020 [2021] NZCA 325 |
| BETWEEN | BRANDON CAIN BOWRING |
| AND | NEW ZEALAND POLICE |
| Court: | Cooper, S France and Edwards JJ |
Counsel: | N P Bourke for Appellant |
Judgment: | 20 July 2021 at 10.30 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal against sentence is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooper J)
Mr Bowring seeks leave to bring a second appeal against sentence. He was sentenced in the District Court to two years and four months’ imprisonment after pleading guilty to a number of charges arising out of offending against his partner.[1] His appeal to the High Court was dismissed.[2]
[1]Police v Bowring [2020] NZDC 20149 [District Court judgment].
[2]Bowring v Police [2020] NZHC 3252 [High Court judgment].
Under s 253(3) of the Criminal Procedure Act 2011, this Court must not give leave for a second appeal unless satisfied that either the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred, or may occur, unless the appeal is heard. This broad statutory language, which recurs in a number of sections of the Criminal Procedure Act dealing with applications for leave to bring a second appeal,[3] sets a high threshold.[4] As observed by the Supreme Court in Mist v R, appeals against the nature or length of a sentence will “only infrequently raise a question of general principle suitable for a second appeal ”.[5]
The offending and District Court sentence
[3]See Criminal Procedure Act 2011, ss 223(3), 237(2), 264(2) and 267(2).
[4]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
[5]Mist v R [2005] NZSC 29 at [3].
Mr Bowring was convicted of one charge of threatening to kill,[6] a representative charge of assault with intent to injure,[7] and one charge each of strangulation and wilful damage.[8] The complainant was a person with whom Mr Bowring had been in a relationship with for five months.
[6]Crimes Act 1961, s 306.
[7]Section 193.
[8]Section 189A(b); and Summary Offences Act 1981, s 11(1)(a).
Judge Hunt took strangulation as the lead offence, and adopted a starting point of 20 months’ imprisonment.[9] The relevant facts concerning that offence, and the events that immediately preceded it were set out in the Judge’s sentencing notes as follows:
[9] On 11 October, you were in a residential address in New Plymouth with the victim. You were in the lounge arguing. The victim was smoking a tailormade cigarette at the time. During the argument, you approached her aggressively. She protected her head with her hands and fell to the ground on her knees dropping her cigarette. You picked up that cigarette and you pushed it into the victim’s neck. This was not an accident. It was not inadvertent. The summary discloses that you deliberately picked it up and pushed it into her neck and, as a result of that assault, she had a burn mark on the back of her neck.
[10] On the evening of Friday 11 October into the morning of 12 October, you were at a residential address in New Plymouth with the victim. You began arguing about [your] relationship and you again took her phone off her. She tried to leave, but you stood in the doorway blocking her exit. She then attempted to leave via a window, but you pulled her back into the room. You then punched her in the head with a closed fist, dragged her onto the bed punching her twice more. You then held the victim down on the bed with your hand applying pressure to the right side of her jaw pushing her head into the bed. As a result of that assault, she received tenderness to her head and bruising to her right eye, arms and legs, as well as a graze to her forearm.
[11] A few hours later, early morning, you were in the kitchen of the address. You pushed her up against the pantry with two hands, put your right hand around her throat squeezing hard causing her to struggle for breath. As a result of the assault, she received bruising to her neck.
[9]District Court judgment, above n 1, at [32].
Having adopted the starting point of 20 months’ imprisonment, the Judge then uplifted that figure by 12 months to reflect the representative charge of assault and by six months for the charge of threatening to kill.[10] That brought the starting point to 38 months’ imprisonment.[11] He deducted three months to reflect submissions that had been made concerning Mr Bowring’s difficult childhood circumstances.[12] The Judge considered there had been a significant delay in the entry of Mr Bowring’s guilty pleas, and for that reason declined to allow a deduction of more than 20 per cent.[13] This resulted in an end sentence of two years and four months’ imprisonment.[14]
The High Court appeal
[10]At [33].
[11]At [33].
[12]At [34].
[13]At [36].
[14]At [37].
In the High Court, Mr Bourke, counsel for Mr Bowring, argued that Mr Bowring should have been allowed a full discount of 25 per cent in respect of his guilty pleas, and that the 18-month uplift for the assault and threatening to kill charges was too high. The starting point of 20 months’ imprisonment for the strangulation offence was not challenged.
Gwyn J held that a starting point of up to 24 months’ imprisonment would have been appropriate for the strangulation offence alone.[15] She also thought that an uplift of nine months would have been more appropriate for the assault charge, but considered that the difference was more than accounted for by the lower starting point that had been adopted in respect of the strangulation charge.[16] She held that the uplift of six months for the charge of threatening to kill was appropriate.[17] In the result, she considered there had been no error in setting the overall starting point.[18]
[15]High Court judgment, above n 2, at [20].
[16]At [26].
[17]At [28].
[18]At [29].
In respect of the guilty pleas, Gwyn J found that Mr Bowring did plead guilty at the earliest opportunity, and it would have been appropriate for the Judge to have granted the full 25 per cent discount.[19] However, Gwyn J declined to alter the sentence on that basis as the resultant discount of three months’ imprisonment would amount to “mere tinkering”.[20] She noted that this reduction in Mr Bowring’s sentence would not be sufficient for home detention to be considered.[21]
The application for leave to appeal
[19]At [30].
[20]At [37].
[21]At [37].
The application for leave to appeal to this Court is advanced on two grounds. The first is that the global starting point adopted by the Judge and upheld by Gwyn J resulted in a miscarriage of justice. That submission was advanced on the basis that none of the authorities cited in the High Court supported an uplift as high as 18 months which had been imposed in addition to the 20-month starting point adopted for the strangulation offence.
The second ground advanced concerns the fact that although Gwyn J found that Mr Bowring pleaded guilty at the first opportunity and so should have been entitled to the full 25 per cent discount, she declined to interfere with the sentence on the basis that to do so would be in the nature of “mere tinkering”.[22]
[22]At [37].
Mr Bourke submits that taken together these two considerations are sufficient to justify a second appeal. He submits that the concept of “tinkering” is often referred to but ill-defined, and there would be merit in this Court addressing the issue. He also argues that the uplift of 18 months in respect of the other offending was such that a second appeal would be appropriate to avoid a miscarriage of justice.
Decision
We have not been persuaded that leave should be granted for a second appeal. The approach for which Mr Bourke contends assumes that it is appropriate to examine the constituent elements of a sentence and argue there has been error if any of the elements can be individually criticised. But as has been emphasised on numerous occasions, what matters is not the individual elements but whether the overall sentence is excessive.[23]
[23]Tutakangahua v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
In this case, Gwyn J’s reasoning made it plain that she did not consider the sentence imposed was excessive as a result of the uplift for the representative charge of assault. Having referred to the cases cited before her she indicated:[24]
… an appropriate uplift for the assaults was greater than six months but not as high as the 12 months imposed by the Judge. Somewhere in the realm of nine months would have been more appropriate. However, that is offset by the higher starting point that could have been given for the strangulation.
[24]High Court judgment, above n 2, at [26].
This was the correct approach.
Insofar as the timing of the guilty plea was concerned, while Gwyn J concluded, contrary to the view of the sentencing Judge, that a full discount should have been given on the basis that Mr Bowring had pleaded guilty at the earliest possible opportunity, she found that the difference of three months that would have resulted was not such as to indicate there was a “material error in the sentencing, such that a different sentence should be imposed”.[25] We agree with the approach that she took.
[25]At [37].
No matter of general or public importance has arisen, and we are not satisfied that a miscarriage of justice may have occurred or may occur unless a second appeal is heard.
For these reasons, the application for leave to bring a second appeal against sentence is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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