Bishop-Lister v Police - [2022] NZHC 216

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2022-443-1 CRI-2022-443-2

CRI-2022-443-3 [2022] NZHC 216

BETWEEN
BARRY JAMES BISHOP-LISTER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing (by VMR): 17 February 2022

Counsel:

J C Hannam for the Appellant J E Bourke for the Respondent

Judgment:

18 February 2022

JUDGMENT OF GWYN J

Summary

[1] On 17 May 2021, the appellant was sentenced to community work and community detention on two charges of driving while disqualified and one of assault on a person in a family relationship.

[2] On 15 November 2021, the appellant was sentenced for breaching the community work and community detention conditions, as well as for two further sets of offending relating to driving misconduct. The sentence at issue in this appeal relates to the following charges:

(a)breaching conditions of community detention (s 69G(a) of the Sentencing Act 2002);1

1 Maximum term of imprisonment of 6 months, or a fine of $1,500.

BISHOP-LISTER v NEW ZEALAND POLICE [2022] NZHC 216 [18 February 2022]

(b)breaching conditions of community work (s 71(1)(a) of the Sentencing Act);2

(c)two charges of driving while disqualified—third or subsequent offence r (s 32(1)(a) and 32(4) of the Land Transport Act 1998);3

(d)operating a vehicle carelessly (s 37 of the Land Transport Act);4 and

(e)failing to stop when followed by red/blue flashing lights (s 52A(1)(a)(ii)).5

[3] The appellant was sentenced to 18 months’ imprisonment and a disqualification of two years and six months was imposed by Judge Greig in the Whanganui District Court.6

[4]On 11 January 2022, the appellant filed an appeal against sentence.

Background

[5] The appellant was disqualified from driving in October 2020 with the disqualification period to begin on 15 March 2021.

[6] On 25 June 2021, the appellant was found driving while trying to locate his son who was in some distress. Mr Bishop-Lister says this situation has caused him significant stress. As a result of what has happened to his son, the appellant has had to become involved in other court proceedings. He has experienced a breakdown of the previously co-operative parenting relationship with his son’s mother. The appellant’s background context also includes having to relocate out of his stepfather’s residence, who is a recovering alcoholic and is considered controlling and difficult by the appellant. Mr Bishop-Lister says he has felt overwhelmed by the consequences of dealing with simultaneous District Court and Family Court proceedings while also

2      Maximum term of imprisonment of 3 months, or a fine of $1,000.
3      Maximum penalty of two years, or a fine of $6,000; and, the Court must order the person to be disqualified from holding or obtaining a driver licence for one year or more.
4      Maximum penalty is a fine of $3,000.
5      Maximum penalty is a fine of $10,000.
6      Police v Barry James Bishop [2021] NZDC 22398.

contending with the consequences of his son’s situation, fractured family dynamics and Covid-19.

[7] On 27 August 2021, the appellant drove again while disqualified.…

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.

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Details

Case: [2022] NZHC 216
Decision Date: 18 February 2022

CaseChat Overview and Summary

Barry James Bishop-Lister appealed against his sentence, arguing it was manifestly excessive, the driving disqualification was excessive, and that leave to apply for home detention should have been granted. The respondent argued the sentence was appropriate and the driving disqualification was consistent with the authorities. The court found the starting point for the sentence was excessive, but the uplift for the breaches was appropriate. The court also found that the period of disqualification was excessive and the refusal to grant leave to apply for home detention was inappropriate. The appeal against sentence was allowed, and a sentence of 10 months’ imprisonment with no release conditions was substituted. The appeal against the period of driving disqualification was allowed and a period of eighteen months’ disqualification was substituted. The appeal against refusal to grant leave to apply for home detention was allowed.

The court was required to decide whether the sentence imposed by the sentencing Judge was appropriate. The court also had to consider whether the driving disqualification was excessive, and whether the refusal to grant leave to apply for home detention was appropriate. The court found that the starting point for the sentence was excessive and that the period of disqualification was excessive. The court also found that the refusal to grant leave to apply for home detention was inappropriate.

The court found that the starting point of nine months for each of the appellant’s fifth and sixth driving while disqualified convictions, totaling 18 months, was excessive. The court adopted an eight month starting point for the appellant’s sixth conviction and four months for the fifth conviction, a total starting point of 12 months. The court found that the three-month uplift for breaches of community work and community detention conditions was appropriate. The court found that the total period of disqualification was excessive and that disqualification from driving for a total of eighteen months was appropriate. The court found that the refusal to grant leave to apply for home detention was inappropriate and that the appellant has leave to apply for home detention.

Orders