BOWRING v NEW ZEALAND POLICE [2021] NZCA 325

BOWRING v NEW ZEALAND POLICE [2021] NZCA 325 [20 July 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA722/2020[2021] NZCA 325BETWEEN BRANDON CAIN BOWRINGApplicantAND NEW ZEALAND POLICERespondentCourt: Cooper, S France and Edwards JJCounsel: N P Bourke for AppellantR E King for RespondentJudgment:(On the papers)20 July 2021 at 10.30 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal against sentence is declined.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] Mr Bowring seeks leave to bring a second appeal against sentence. He wassentenced in the District Court to two years and four months' imprisonment afterpleading guilty to a number of charges arising out of offending against his partner.1His appeal to the High Court was dismissed.2[2] Under s 253(3) of the Criminal Procedure Act 2011, this Court must not giveleave for a second appeal unless satisfied that either the appeal involves a matter of1 Police v Bowring [2020] NZDC 20149 [District Court judgment].2 Bowring v Police [2020] NZHC 3252 [High Court judgment].general or public importance, or a miscarriage of justice may have occurred, or mayoccur, unless the appeal is heard. This broad statutory language, which recurs in anumber of sections of the Criminal Procedure Act dealing with applications for leaveto bring a second appeal,3 sets a high threshold.4 As observed by the Supreme Courtin Mist v R, appeals against the nature or length of a sentence will "only infrequentlyraise a question of general principle suitable for a second appeal ".5The offending and District Court sentence[3] Mr Bowring was convicted of one charge of threatening to kill,6 arepresentative charge of assault with intent to injure,7 and one charge each ofstrangulation and wilful damage.8 The complainant was a person with whomMr Bowring had been in a relationship with for five months.[4] Judge Hunt took strangulation as the lead offence, and adopted a starting pointof 20 months' imprisonment.9 The relevant facts concerning that offence, and theevents that immediately preceded it were set out in the Judge's sentencing notes asfollows:[9] On 11 October, you were in a residential address in New Plymouthwith the victim. You were in the lounge arguing. The victim was smoking atailormade cigarette at the time. During the argument, you approached heraggressively. She protected her head with her hands and fell to the ground onher knees dropping her cigarette. You picked up that cigarette and you pushedit 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 intoher neck and, as a result of that assault, she had a burn mark on the back ofher 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 beganarguing about [your] relationship and you again took her phone off her. Shetried to leave, but you stood in the doorway blocking her exit. She thenattempted to leave via a window, but you pulled her back into the room. Youthen punched her in the head with a closed fist, dragged her onto the bedpunching her twice more. You then held the victim down on the bed with yourhand applying pressure to the right side of her jaw pushing her head into the3 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].6 Crimes Act 1961, s 306.7 Section 193.8 Section 189A(b); and Summary Offences Act 1981, s 11(1)(a).9 District Court judgment, above n 1, at [32].bed. As a result of that assault, she received tenderness to her head andbruising 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 theaddress. You pushed her up against the pantry with two hands, put your righthand around her throat squeezing hard causing her to struggle for breath. As aresult of the assault, she received bruising to her neck.[5] Having adopted the starting point of 20 months' imprisonment, the Judge thenuplifted that figure by 12 months to reflect the representative charge of assault and bysix months for the charge of threatening to kill.10 That brought the starting point to38 months' imprisonment.11 He deducted three months to reflect submissions that hadbeen made concerning Mr Bowring's difficult childhood circumstances.12 The Judgeconsidered 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.13This resulted in an end sentence of two years and four months' imprisonment.14The High Court appeal[6] In the High Court, Mr Bourke, counsel for Mr Bowring, argued thatMr Bowring should have been allowed a full discount of 25 per cent in respect of hisguilty pleas, and that the 18-month uplift for the assault and threatening to kill chargeswas too high. The starting point of 20 months' imprisonment for the strangulationoffence was not challenged.[7] Gwyn J held that a starting point of up to 24 months' imprisonment would havebeen appropriate for the strangulation offence alone.15 She also thought that an upliftof nine months would have been more appropriate for the assault charge, butconsidered that the difference was more than accounted for by the lower starting pointthat had been adopted in respect of the strangulation charge.16 She held that the upliftof six months for the charge of threatening to kill was appropriate.17 In the result, sheconsidered there had been no error in setting the overall starting point.1810 At [33].11 At [33].12 At [34].13 At [36].14 At [37].15 High Court judgment, above n 2, at [20].16 At [26].17 At [28].18 At [29].[8] In respect of the guilty pleas, Gwyn J found that Mr Bowring did plead guiltyat the earliest opportunity, and it would have been appropriate for the Judge to havegranted the full 25 per cent discount.19 However, Gwyn J declined to alter the sentenceon 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 notbe sufficient for home detention to be considered.21The application for leave to appeal[9] 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 Jresulted in a miscarriage of justice. That submission was advanced on the basis thatnone of the authorities cited in the High Court supported an uplift as high as 18 monthswhich had been imposed in addition to the 20-month starting point adopted for thestrangulation offence.[10] The second ground advanced concerns the fact that although Gwyn J foundthat Mr Bowring pleaded guilty at the first opportunity and so should have beenentitled to the full 25 per cent discount, she declined to interfere with the sentence onthe basis that to do so would be in the nature of "mere tinkering".22[11] Mr Bourke submits that taken together these two considerations are sufficientto justify a second appeal. He submits that the concept of "tinkering" is often referredto but ill-defined, and there would be merit in this Court addressing the issue. He alsoargues that the uplift of 18 months in respect of the other offending was such that asecond appeal would be appropriate to avoid a miscarriage of justice.Decision[12] 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 examinethe constituent elements of a sentence and argue there has been error if any of the19 At [30].20 At [37].21 At [37].22 At [37].elements can be individually criticised. But as has been emphasised on numerousoccasions, what matters is not the individual elements but whether the overall sentenceis excessive.23[13] In this case, Gwyn J's reasoning made it plain that she did not consider thesentence imposed was excessive as a result of the uplift for the representative chargeof 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 ashigh as the 12 months imposed by the Judge. Somewhere in the realm ofnine months would have been more appropriate. However, that is offset bythe higher starting point that could have been given for the strangulation.[14] This was the correct approach.[15] Insofar as the timing of the guilty plea was concerned, while Gwyn Jconcluded, contrary to the view of the sentencing Judge, that a full discount shouldhave been given on the basis that Mr Bowring had pleaded guilty at the earliestpossible opportunity, she found that the difference of three months that would haveresulted was not such as to indicate there was a "material error in the sentencing, suchthat a different sentence should be imposed".25 We agree with the approach that shetook.[16] No matter of general or public importance has arisen, and we are not satisfiedthat a miscarriage of justice may have occurred or may occur unless a second appealis heard.[17] For these reasons, the application for leave to bring a second appeal againstsentence is declined.Solicitors:Crown Law Office, Wellington for Respondent23 Tutakangahua v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].24 High Court judgment, above n 2, at [26].25 At [37].