Bowlin v R [2015] NZCA 137 (29 April 2015)

Last Updated: 12 May 2015

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

1. An 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

[1] 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]
[2] 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] 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

[4] 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.
[5] 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]
[6] 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

[7] 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 Judge placed undue weight on the requirements of denunciation and deterrence.^[9] He was satisfied that the Judge had considered all relevant issues and in particular the least restrictive available outcome.^[10] While accepting that a sentence of home detention can denounce and deter, Gilbert J held that in cases of drink driving causing death home detention is a rare exception to the norm of a sentence of imprisonment.^[11]
[8] Gilbert J also rejected a submission that the sentencing process was unfair because the Judge did not adhere to what was said to be an assurance at the sentencing indication hearing that home detention would be granted so long as further information was provided.^[12] In this respect, Gilbert J noted that if Mr Bowlin had been able to prove a substantial departure from a sentencing indication his appropriate remedy would have been to appeal against conviction rather than sentence, allowing him the opportunity to vacate his plea.^[13] Mr Bowlin had not pursued that course.
[9] Gilbert J was satisfied that the Judge did not make any such commitment in favour of home detention and that the Judge clearly indicated that imprisonment was an option: it could not be said that the Judge had resiled from a sentencing indication.^[14]

Decision

[10] This Court must not grant leave for a second appeal against sentence unless it is satisfied that the appeal involves a matter of general or public importance or a miscarriage of justice may occur unless the appeal is heard.^[15] Mr Munro submitted that leave should be granted because a miscarriage had occurred for the same two reasons as advanced in support of Mr Bowlin’s appeal to the High Court – that the sentencing decision was plainly wrong because the Judge erred in exercising his discretion not to impose a sentence of home detention; and that the Judge erred in failing to follow his sentencing indication as required by statute.^[16] Mr Munro argued that all the matters that would be relevant on sentencing, but which remained unknown at the time of the sentencing indication, were resolved positively in Mr Bowlin’s favour. He had completed a restorative justice process, had stopped drinking alcohol and had a favourable pre-sentence report that recommended home detention, including his employer’s support for him to remain in work subject to the constraints of a home detention sentence.
[11] Alternatively, Mr Munro said that the sentence indication was not a sentence indication as prescribed by the statute as it did not determine a sentence.^[17]
[12] Mr Munro acknowledges that Mr Bowlin must satisfy a high threshold in order to obtain leave to bring a second appeal. He submitted, however, that the threshold is satisfied here because the grounds raise an issue of general or public importance to the administration of criminal law by the courts. He described that issue as a requirement for consistency in the scope and use of sentencing indications.
[13] To a certain extent, Mr Bowlin’s grounds merge both statutory criteria for granting leave. Whatever criterion is nominated, Mr Bowlin’s application falls well short of the threshold. Mr Bowlin is seeking to leave to appeal “against the determination of a first appeal” – that is, Gilbert J’s decision upholding the District Court sentence.^[18] In support of Mr Bowlin’s appeal Mr Munro’s submissions were directed primarily to the District Court decision. He did not, however, identify any error by Gilbert J.
[14] We are not satisfied that Gilbert J erred. In particular, he correctly identified the obligation on Mr Bowlin to prove the Judge’s error when exercising his discretion to impose a sentence of home detention rather than imprisonment. The appellate Judge also correctly concluded, on what was essentially a factual evaluation, that the sentencing Judge did not give a firm or definite indication in advance of Mr Bowlin’s guilty pleas that a sentence of home detention would be imposed, either at all or in defined circumstances. Gilbert J acknowledged the sequence of positive factors that arose between the indication being given and the sentencing, but did not treat them as sufficient to commit the sentencing Judge to imposing home detention. We agree with Gilbert J on that point.
[15] We see nothing in the alternative contention that the sentence indication did not qualify as such because it omitted to determine a sentence. The qualified nature of the indication was entirely conventional and in accordance with the relevant statutory provision.

Result

[16] An extension of time to appeal is granted but the application for leave to appeal to this Court is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[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].

^[3] Criminal Procedure Act 2011, s 253.

^[4] Bowlin v R DC Waitakere CRI-2014-090-445, 14 May 2014 at [48].

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

^[6] At [26]–[28].

^[7] At [29]–[33].

^[8] High Court judgment, above n 2, at [23].

^[9] At [25].

^[10] At [25].

^[11] At [24] and [26].

^[12] At [27]–[29].

^[13] At [29].

^[14] At [9] and [29].

^[15] Criminal Procedure Act, s 253(3); McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.

^[16] Criminal Procedure Act, s 116(2).

^[17] Section 60.

^[18] Section 253.