Bowlin v Police [2014] NZHC 2066 (29 August 2014)

Last Updated: 24 September 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000237 [2014] NZHC 2066

JOEL BOWLIN

v

_{NEW ZEALAND POLICE}

Hearing:	5 August 2014
Counsel:	J D Munro for the Appellant W P Cathcart for the Respondent
Judgment:	29 August 2014

REASONS JUDGMENT OF DUFFY J [Re Appeal Against Refusal to Grant Bail]

This judgment was delivered by Justice Duffy on 29 August 2014 at 3.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Counsel: J D Munro, Auckland

_{Solicitors: Meredith Connell, Auckland}

BOWLIN v POLICE [2014] NZHC 2066 [29 August 2014]

Summary

[1] On 5 August 2014, I delivered a result judgment in which I allowed Joel Bowlin’s appeal against the refusal of the District Court to grant him bail pending the determination of his appeal against sentence. My reasons now follow.

Background

Facts of offending

[2] Mr Bowlin is 22 years of age. On 24 August 2013, he was driving a Toyota Hiace van at around 2.45 am in Kumeu. In the front of the van were two passengers: 19 year old Mr Gibbs; and 20 year old Ms Walsh. Mr Bowlin lost control of the van, rolled violently over an open drain and collided with a retaining post and brick feature wall. He incurred minor injuries. Both passengers died at the scene.

[3] Tests revealed that Mr Bowlin had a blood alcohol level of 113 milligrams of alcohol per 100 millilitres of blood. The legal limit is 80 milligrams of alcohol per

100 millilitres of blood: see s 56(2) of the Land Transport Act 1998. The New Zealand Police (“police”) laid two charges of driving with excess blood alcohol causing the death of a person under ss 61(1)(b) and 61(3AA) of the Land Transport Act.

District Court sentencing indication given on 14 May 2014

[4] On 14 May 2014, Judge Bergseng gave a sentence indication. He indicated that an appropriate starting point would be a term of imprisonment of between three years and three years and three months’ imprisonment.

[5] The Judge then canvassed the personal mitigating factors and said:

[44] In my view the credit that you would be entitled to would be somewhere in the vicinity of 15 to 20 months [sic].

[6] After noting that the appellant would be entitled to a full 25 per cent guilty plea discount, the Judge said that the end sentence was one which would be within the range of home detention: [48]. However the Judge declined to comment on whether home detention or any other community-based sentence would be an appropriate end result without more information.

District Court sentencing notes

[7] After the sentence indication from Judge Bergseng, on 22 May 2014

Mr Bowlin pleaded guilty. Mr Bowlin was sentenced on 23 July 2014. He had one minor previous offence, which the Judge considered to be not relevant; so Mr Bowlin was treated as if was a first time offender.

[8] The Judge considered the nature of the offending and noted that aggravating features, such as excessive speed, racing, a disregard of warnings from other passengers and a prolonged course of bad driving did not feature in this case. Instead, the Judge noted that there was no suggestion of irresponsible behaviour, apart from the excess blood alcohol.

[9] The Judge adopted a starting point of three years’ imprisonment. There were no personal aggravating factors. For personal mitigating factors, the Judge considered the fact that this was an isolated incident, Mr Bowlin’s previous good character, his youth and his remorse. In this regard, he had attended a defensive driving course, a “Right Track” programme and he took part in a restorative justice conference. For all these factors, the Judge gave a discount of 20 per cent. The full

25 per cent guilty plea discount was awarded. This brought the sentence to an end sentence of 21 months’ imprisonment.

[10] The Judge then considered whether home detention or a community-based sentence would meet the purposes and principles of the Sentencing Act 2002. The Judge noted that he had to impose the least restrictive outcome that was appropriate in the circumstances. He concluded that denunciation and deterrence were important factors to consider and that a sentence of home detention would not meet those

purposes and principles of sentencing. This left the sentence at 21 months’

imprisonment.

[11] Later that day, Mr Bowlin filed an appeal against this sentence and sought bail pending the determination of the appeal. He was refused bail, hence this appeal.

District Court decision on bail

[12] In the District Court, the police took a neutral stance on the question of bail. Bail was declined by Judge Bergseng on the same day as the sentencing.

[13] Judge Bergseng noted that the mother, brother and girlfriend of one of the deceased victims supported the application for bail whereas other family members of the deceased victims did not. The Judge said that he had limited ability to consider the views of the victims’ families.

[14] The Judge then said that with an application for bail following an appeal against sentence, the “focus has to be on s 14” of the Bail Act 2000 (“the Act”). This provision requires a Judge to refuse bail unless satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to grant bail. The onus being on Mr Bowlin to show just cause as to why bail should be granted. The factors for consideration are set out in s 14(3).

[15] Judge Bergseng considered the submissions that were made for Mr Bowlin in relation to the s 14(3) factors. Regarding the apparent strength of the appeal, the Judge noted that Mr Bowlin had identified three areas that may be pursued on appeal. First, the starting point of three years’ imprisonment may have been too high. Secondly, too much weight may have been given to the need for deterrence and denunciation. Thirdly, that following the sentence indication (under s 60 of the Criminal Procedure Act 2011), a particular sentence type was not given.

[16] Regarding the length of the sentence, Judge Bergseng noted Mr Bowlin’s submission that taking his age and particular circumstances into account, it would be a salient sentence if he were to be held in custody until his appeal was heard. This

submission was combined with a submission that his present employment would be lost if he were to remain in custody.

[17] Regarding Mr Bowlin’s personal circumstances, Judge Bergseng noted the diagnosis that Mr Bowlin is suffering from post-traumatic stress disorder (“PTSD”) arising from the offending. He also noted counsel’s description of Mr Bowlin as him being a particularly vulnerable young man.

[18] Judge Bergseng then referred to Court of Appeal authority that bail pending an appeal is unusual and should only be granted in exceptional circumstances, with the concern being for the overall interests of justice.

[19] Judge Bergseng decided that it was too soon to be clear about the apparent strength of the appeal. He saw the loss of employment as a consequence of a term of imprisonment. The earliest likely appeal date was October 2014, which the Judge considered was not so distant that it made a refusal to grant bail unjust. Finally, the Judge concluded that after considering all the relevant factors, they were not so exceptional that bail should be granted.

Grounds of appeal

[20] Mr Bowlin appealed the refusal to grant bail on the grounds that the Judge:

(a) erred in determining that the grounds for appeal of sentence were weak;

(b) did not take into account the defendant’s vulnerability (young and

suffering from PTSD);

(c) did not take into account the fact that by the time the appeal is heard, Mr Bowlin will have served a significant portion of his sentence;

(d) did not take into account the views of some family members of the victims on clemency; and

(e) erred in taking into account a different victim’s view seeking prison

sentence.

Appellant’s submissions

[21] Mr Bowlin submitted that the Judge failed to assess adequately the respective merits or strength of the grounds of appeal against sentence. Mr Bowlin submitted that in terms of s 14(3)(a) of the Act, the grounds of his appeal against sentence are strong. He contended too much weight was placed on the importance of denunciation and deterrence, and insufficient weight was given to his rehabilitation and reintegration needs. Mr Bowlin argued that the Judge failed to appreciate that the principles of denunciation and deterrence can also be served through a sentence of home detention. Mr Bowlin submitted that there is a real chance that on appeal, his sentence of imprisonment will be substituted by a sentence of home detention.

[22] Mr Bowlin submitted that there was ample information available to the Judge at sentencing to enable him to assess the appropriateness of a sentence of home detention. These included a restorative justice report, a positive pre-sentence report, which recommended home detention, and statements from the victims’ families. In addition, numerous references spoke highly of Mr Bowlin.

[23] Mr Bowlin submitted that the sentence indication, in which the Judge recognised that home detention was an option open to the Court, was flawed for being too opaque and not being a true representation of the Judge’s intentions. Further, [48] of the sentence indication noted that home detention was likely to be an option available to the Court. The reports the Judge later received all revealed Mr Bowlin to be a “glowing candidate” for home detention. Alternatively, the Judge erred in not allowing himself to be bound by his sentence indication in accordance with s 116(2) of the Criminal Procedure Act. Mr Bowlin also referred to ambiguities in the sentence indication, including the Judge’s reference to a discount of 15 to

20 months when he intended to say 15 to 20 per cent.

[24] As a further ground of appeal against sentence, Mr Bowlin submitted that the starting point of three years was too high, particularly as there were no aggravating features of the offending.

[25] Regarding the timing of the appeal, Mr Bowlin submitted that the Judge failed to consider properly that Mr Bowlin was likely to spend three months in prison before the appeal hearing. This would equate to almost 30 per cent of the likely time that he would serve on a 21 month sentence.

[26] Regarding Mr Bowlin’s personal circumstances, he submitted that he was a young man and when this factor is combined with the effects of PTSD, he is someone who will be particularly vulnerable to the prison environment.

[27] In conclusion, Mr Bowlin submitted that the Judge was plainly wrong, in light of the particular facts of this case, not to grant bail pending appeal in the interests of justice.

Respondent’s submissions

[28] The police opposed the appeal. They argued that the refusal of bail did not reveal any appealable error. However, following an exchange between bench and bar, they later acknowledged that the sentencing process may have contained an error of law. They accepted that [48] of the sentence indication signalled that in principle, home detention was an available sentencing option, so once supportive reports were received, Mr Bowlin would have had a reasonable expectation that a sentence of home detention would be imposed.

Approach to appeal

[29] If a District Court Judge refuses to grant bail to a defendant, he or she may appeal to the High Court against that refusal: see s 44(1) of the Act. Such an appeal is by way of rehearing: see s 44(6).

[30] In the case of Dodd v R [2011] NZCA 490, the Court of Appeal affirmed the principles cited in B v Police (No 2) [1999] NZCA 205; [2000] 1 NZLR 31 (CA):

[26] Prior to the enactment of the Bail Act, this Court described the principles to be applied when considering an appeal against the grant of bail in B v Police (No 2) in these terms:

[6] ... Someone who appeals a refusal of bail and is unable to point to a material change in the circumstances since the lower Court's decision faces the difficulty that it is a challenge to the exercise by a Judge of a discretion. The appellant must therefore establish that the refusal of bail was contrary to principle, or that the Judge failed to consider all relevant matters or took into account irrelevant matters, or that the decision was plainly wrong. (Where there has been such a change in circumstances the better course is for a further application to be made to the lower court, rather than the pursuit of an appeal).

[27] Counsel accepted that these principles continue to apply under the Bail Act. We agree and note that the Supreme Court has accepted that decisions under the Bail Act involve the exercise of discretion.

[31] So, as Heath J summarised in R v Keefe CA162/04, 22 July 2004 at [22], the appellant must demonstrate that the Judge:

(a) Made an error of principle, or

(b) Failed to take into account all relevant matters, or

(c) Took into account irrelevant matters, or

(d) Was plainly wrong.

Relevant law

[32] The relevant provision of the Act is s 14, which provides:

14 Exercise of discretion when considering bail pending appeal

(1) If a person is in custody or subject to a sentence of home detention under a conviction and is appealing the conviction or sentence, or both, the court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.

(2) The onus is on the appellant to show cause why bail should be granted.

(3) When considering the interests of justice under subsection (1) the court may, instead of the considerations in section 8, take into account the following considerations:

(a) the apparent strength of the grounds of appeal:

(b) the length of the sentence that has been imposed on the appellant:

(c) the likely length of time that will pass before the appeal is heard:

(d) the personal circumstances of the appellant and the appellant's immediate family:

(e) any other consideration that the court considers relevant.

[33] The Court of Appeal in R v Patel [2007] NZCA 380 at [7] stated that the overall question in s 14 is “what do the interests of justice require?” Further, in R v de Bruin [2007] NZCA 76, the Court of Appeal said that:

[9] It is neither necessary, nor appropriate, to attempt an extensive analysis of the merit of the appeal.

[34] Ellis v R [1998] 3 NZLR 555 (CA) made it clear that bail pending appeal is only to be granted in exceptional circumstances. The principles in Ellis have recently been endorsed in Iti v R [2012] NZCA 307 at [7]:

[7] The applicants rightly accept that s 14 confronts them with a high threshold. That is because, once an offender has been convicted and sentenced, the Court will grant bail pending appeal only in exceptional circumstances. Section 14 encapsulates well settled principles stated by this Court in Ellis v R:

... Admission to bail pending appeal is unusual and only to be granted in exceptional circumstances. The concern is for the overall interests of justice. The starting point is that the applicant has been found guilty and sentenced. Two further factors for special consideration are the apparent strength of the appeal and the element of delay causing injustice. As to the first, the Court in Moananui accepted that the applicant had an arguable case on the points intended to be advanced in the appeal but concluded that none of them pointed overwhelmingly to the ultimate success of the appeal. As to the second, what has to be weighed along with the length of the sentence is any previous delays in dealing with the appeal and the prospective delay in bringing it to finality.

Analysis

[35] Under s 14 of the Act, the presumption is that bail should not be granted unless the Court is satisfied that it would be in the interests of justice to grant bail. Under s 14(2), the onus is on the appellant.

[36] I have considered the factors in s 14(3). I consider that it would be in the interests of justice to grant bail in this case. My reasons are as follows.

Strength of the grounds of appeal – s 14(3)(a)

[37] Mr Bowlin has discussed three grounds of appeal in the submissions: the starting point was too high; the Judge gave excessive weight to denunciation and deterrence; and the opaque nature of the sentence indication. As the Court of Appeal has stressed that it is unnecessary to consider in detail the merits of the appeal, I will speak of the grounds of appeal in general terms.

[38] Mr Bowlin appears to have a strong arguable case that a sentence of home detention should have been imposed instead of a term of imprisonment. Under s 8(g) of the Sentencing Act, the Judge must impose the least restrictive outcome that is appropriate in the circumstances. In the Judge’s sentencing notes, the Judge at [33] said he was not satisfied that a sentence of home detention would meet the purposes and principles of the Sentencing Act. The Judge did not explain this position. He may have failed to take into account relevant case law authority, such as R v Iosefa [2008] NZCA 453 where the Court of Appeal recognised that:

[41] The sentence of home detention introduced by the 2007 amendment indeed provides a real alternative to imprisonment.

[39] Similar comments on the effect of a sentence of home detention were made by the Court of Appeal in R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [32] and [33]:

[32] First, although the relevant requirements are differently worded, both ss 57 and 15A indicate that home detention was intended to be a mechanism to reduce the number of people sentenced to imprisonment. It is apparent from the explanatory note to the relevant Bill, the Criminal Justice Reform Bill no 93-1, that an important objective of the new sentence of home

detention is to reduce the prison population. The opening sentence of the explanatory note reads:

The purpose of the Bill is to introduce a range of measures to arrest the sharp increase in the prison population in recent years. This increase is no longer sustainable, neither financially nor socially. New Zealand’s imprisonment rate is considerably higher than countries that we habitually compare ourselves with, such as the United Kingdom, Canada, and Australia. The Bill, which includes some measures that will have an immediate effect and others that will take longer for their impact to be felt, is intended to contribute to a reduction in the imprisonment rate over time.

[33] The sentence of home detention reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment. The explanatory note at p 5 identifies the “acknowledged advantages” of home detention as including “low rates of re-conviction and re-imprisonment, high compliance rates, and positive support for offenders’ reintegration and rehabilitation”: at 5.

[40] I considered that there was a seriously arguable case in support of the appeal against sentence. For the particular offending, and given the reports on the circumstances of Mr Bowlin, all of which favoured a non-custodial sentence, a sentence of home detention may well have been appropriate.

[41] First, Mr Bowlin was a young offender and was treated as a first time offender. He showed genuine remorse. This was evident through his taking part in restorative justice, a defensive driving course and a “Right Track” programme. He had self-referred himself to the latter programme. This all evidenced the kind of “extraordinary” remorse to which the Court of Appeal in R v Clifford [2011] NZCA

360[2011] NZCA 360; , [2012] 1 NZLR 23 at [60] referred. He has also stayed away from alcohol since the accident.

[42] Secondly, as was noted by the sentencing Judge, aggravating features of the offending, such as excessive speed and competitive racing, were absent from the offending in this case. The offending seemed to be a one-off mistake. Mr Bowlin is of otherwise good character and he did not have a history of drink driving, nor irresponsible behaviour.

[43] Thirdly, the pre-sentence report was very positive. The report writer referred to Mr Bowlin’s likelihood of reoffending in a similar manner as “extremely low”.

The report writer recommended home detention as the least restrictive option in the circumstances. Further, Mr Bowlin’s employer, Kumeu Plumbing, stated that the business would endeavour to enable Mr Bowlin to continue working if he was sentenced to home detention. In this regard, I note that Mr Bowlin first worked for his employer for a year without pay in order to secure an apprenticeship as a plumber.

[44] Fourthly, the restorative justice report revealed that certain members of the victims’ families had forgiven Mr Bowlin and support a term of home detention. Other members support a term of imprisonment, and have not accepted his apology.

[45] In light of all the circumstances, home detention was arguably adequate to serve the principles and purposes of sentencing. Whilst denunciation and deterrence are important considerations, so too are the purposes of rehabilitation and reintegration, particularly with a young offender who is not likely to reoffend in the future and who, before sentence, was gainfully employed. For such persons, there is a real risk, as was implicitly recognised at [33] in Hill, that a period of imprisonment will derail their lives and place them on a track of further offending. The diminished future prospects and acquaintance with criminal associates that all too often accompany a sentence of imprisonment can later lead young persons to further offending. On the other hand, sentences of home detention have low rates of re- conviction and re-imprisonment: see Hill at [33]. In Tutakangahau v R [2014] NZCA 279 at [45], the Court of Appeal drew a link between the greater capacity for rehabilitation in the case of young offenders and at [46] the use of alternative sentences to that of imprisonment that are “more directed at the appellant’s prospects of rehabilitation”. In Tutakangahau, the appellant was 18 years old, whereas Mr Bowlin is 22 years old. However, it is seriously arguable that someone of Mr Bowlin’s age and former good record also merited an approach to sentencing that placed more focus on rehabilitation than was given by Judge Bergseng.

[46] The deceased victims of the offending were Mr Bowlin’s friends. He already feels responsible for the harm done and acknowledges that harm under s 7(1)(b). So arguably there was nothing to be gained from sending Mr Bowlin to prison, apart from s 7(1)(c), to provide for the interest of the victims of the offence. However, this

is only one factor that must be balanced against the benefits of a non-custodial sentence.

[47] Regarding the opaque nature of the sentence indication, and the indication that, in principle, a sentence of home detention would be available, this was addressed in R v Gledhill [2009] NZCA 350. In that case, the appellant was sentenced to a term of imprisonment. The appellant was a first time offender. The Court of Appeal granted bail pending appeal against the sentence taking into account the opaque nature of the sentencing indication, the recommendation of the pre- sentence report of a community-based sentence and the fact that the appellant was a single mother.

[48] In this case, the sentence indication was arguably opaque. First, the Judge made a mistake in referring to a discount for mitigating factors of between 15 to 20 months when he intended to say 15 to 20 per cent. Secondly, the Judge did not indicate the likely end sentence in terms of a length of imprisonment. The Judge alluded to home detention as an option that was open to the Court, but then on sentencing declined to impose home detention in light of positive evidence that pointed towards the imposition of this sentence.

The likely length of time that will pass before the appeal is heard – s 14(3)(c)

[49] There was also the likely length of time that would pass before the appeal against sentence is heard. At the time I heard the bail appeal, there was no firm fixture for the hearing of the appeal against sentence, so I could not be sure that it would be heard in October 2014. Even if it was, I considered that was too long a time for him to be in custody. For Mr Bowlin to remain in custody until the appeal was heard would have exposed him to the very risks that a sentence of home detention would obviate. Thus, a refusal to allow the bail appeal carried with it the risk that all the benefits of a sentence of home detention that were recognised in [33] of Hill would no longer be fully available to him.

Personal circumstances

[50] Regarding Mr Bowlin’s personal circumstances, under s 14(3)(4), a psychologist’s report indicated that Mr Bowlin has PTSD. The psychologist noted that Mr Bowlin did not attempt to present himself in an unrealistically favourable light for the assessment. The report also noted that continued employment is pivotal to Mr Bowlin’s rehabilitation and that he has the full support of both his parents.

Conclusion

[51] Balancing the above considerations, I considered that Mr Bowlin had identified a seriously arguable error of law arising from the sentencing indication and the eventual outcome of the sentencing process, which supported granting bail pending the hearing of the sentence appeal. I also considered that there was a serious argument for the sentence being manifestly excessive, either because the starting point adopted was too high and/or because sufficient weight was not reasonably given to Mr Bowlin’s rehabilitation prospects. Tutakangahau at [33]–[35] confirms that s 250(2) of the Criminal Procedure Act was not intended to change this “well- engrained” approach to sentence appeals. Thus, I was satisfied that there were so many factors favouring a grant of bail pending the sentence appeal that the refusal to grant bail was a decision that was plainly wrong. In my view, any reasonable decision-maker would view this case as being one of those exceptional cases that met the requirements in Ellis for the grant of bail.

[52] I considered that this case was similar to R v Gledhill where there was a seriously arguable case that the matter could have been dealt with by way of a community-based sentence instead of a term of imprisonment. Bail was granted pending appeal against sentence in that case. This case at hand is similar in that there is a strong case that home detention would be more appropriate than imprisonment. I considered that this Court could be satisfied that it was in the interests of justice to grant bail.

[53] For all of the above reasons, I allowed the appeal and granted Mr Bowlin bail.

Duffy J