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…

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 Bowring v Police

Details

AGLC: Bowring v Police [2021] NZCA 325
Case: [2021] NZCA 325
Decision Date: 20 July 2021 at 10.30 am

CaseChat Overview and Summary

In the case of Bowring v Police, Brandon Cain Bowring sought leave to bring a second appeal against the sentence imposed upon him by the District Court. Bowring had been sentenced to two years and four months' imprisonment following his guilty pleas to several charges stemming from his offending against his partner. His appeal to the High Court had been dismissed. The Court of Appeal was asked to consider whether Bowring should be granted leave to bring a second appeal against sentence. The legal issues before the Court were whether the global starting point adopted by the Judge and upheld by Gwyn J resulted in a miscarriage of justice and whether the concept of "tinkering" as applied by Gwyn J was appropriate. The Court of Appeal found that the approach taken by Gwyn J was correct. The Court was not persuaded that leave should be granted for a second appeal, as the overall sentence was not excessive, and no matter of general or public importance had arisen. The Court was also not satisfied that a miscarriage of justice may have occurred or may occur unless a second appeal is heard. The application for leave to bring a second appeal against sentence was declined.

Orders