Bishop v Police
[2024] NZHC 3895
•18 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000430
[2024] NZHC 3895
BETWEEN DOMINIC MARTYN BISHOP
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 November 2024 Counsel:
RD Mulgan for Appellant
HCI Wagner-Hiliau for Respondent
Judgment:
18 December 2024
JUDGMENT OF DOWNS J
This judgment was delivered by me on Wednesday, 18 December 2024 at 12 pm.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Auckland. RD Mulgan, Auckland.
BISHOP v POLICE [2024] NZHC 3895 [18 December 2024]
The appeal
[1] In 2019, Dominic Bishop was convicted of offending in relation to his mother, Helen (or Darcey) Rose. Mr Bishop applies, out of time, to appeal conviction, an application supported by Ms Rose. In short, Mr Bishop contends he should be discharged without conviction, an outcome not considered when Mr Bishop was sentenced five years ago.
Background
[2] From late 2018, Mr Bishop was living with Ms Rose after his substance abuse “spiralled out of control”. In February 2019, Ms Rose asked her son to leave. Mr Bishop did so, albeit he slept in his car on a vacant section next door. Later that month, Mr Bishop entered his mother’s home and swapped his laptop for hers (valued at $1,500). Mr Bishop (electronically) transferred $3,000 from her bank account to his. He also took his mother’s bank card, which he used to purchase food and accommodation totalling $409.99.
[3]Ms Rose complained to Police “to force him to get help and keep him alive”.
[4] Mr Bishop was charged with burglary, using a document for pecuniary advantage, and accessing a computer system for a dishonest purpose. He pleaded guilty to these offences and one of breaching bail.
[5] Judge D J Sharp considered the offending reflected “addiction issues”.1 The Judge imposed a sentence directed at rehabilitation: a 12-month term of supervision, with a condition Mr Bishop undertake assessment for a drug treatment programme and any other counselling programme. Mr Bishop was convicted on all charges; no application was made that Mr Bishop be discharged without conviction. Ms Rose attended court in support of her son, a matter commented on by the Judge.2
1 Police v Bishop [2023] NZDC 19216 at [2].
2 At [2].
A précis of Mr Bishop’s case
[6] Mr Mulgan argues Mr Bishop has overcome his drug addiction, lives a stable life with his partner and daughter, and has built a successful landscaping business. He contends the convictions continue to adversely effect Mr Bishop and others: for example, Mr Bishop faces difficulty obtaining finance and insurance. Mr Bishop was not advised about the possibility of being discharged without conviction in connection with sentencing. For these reasons, Mr Mulgan submits “a discharge is a proportionate outcome” despite the significant delay in advancing that application.
Analysis
Extension of time
[7] An appellate Court may extend time in relation to an appeal when it is in the interests of justice to do so.3 Competing interests (for example, in finality and of the applicant) must be balanced.4
[8] Mr Bishop’s application is five years late. However, there is merit in the proposed appeal, as discussed below. And, while a conviction recognises broader interests than those of the victim, Ms Rose’s interests in finality are not compromised as she wishes her son to be discharged without conviction.
[9]I, therefore, extend time, a course not opposed by the respondent.
Discharge without conviction
[10] A Court may discharge a defendant without conviction if “the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”.5 A Court must identify the gravity of the offence; identify the direct and indirect consequences of a conviction; and then determine whether those consequences would be out of all proportion to the gravity of the offence.6
3 Filivao v R [2024] NZCA 103 at [24], referencing R v Knight [1988] 1 NZLR 583 (CA); and
R v Lee [2006] 3 NZLR 42 (CA).
4 At [25].
5 Sentencing Act 2002, s 107. See also s 106.
6 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [12]–[13].
[11] A discharge without conviction may be sought for the first time on appeal.7 Unsurprisingly, an appellate Court must be persuaded a miscarriage of justice has occurred by a material error in entering convictions, or for any other reason.8
[12] The Judge did not characterise the gravity of the offending, at least directly. This is hardly surprising, as an application for a discharge without conviction was not advanced. Burglary is inherently serious. That Mr Bishop abused Ms Rose’s trust is aggravating. So too the target premises: a home. However, mitigating features also exist.
[13] First, Mr Bishop pleaded guilty promptly. He was charged 27 March 2019. He pleaded guilty 6 June 2019.
[14] Second, Mr Bishop made significant efforts to reform before sentencing. He made amends with his mother, repaid some of the money he had stolen, obtained a Class 2 driving licence, and “got back into work”. His pre-sentence report (dated 14 August 2019) records twice-weekly Narcotics Anonymous meetings and voluntary work. The Judge noted at sentencing that Mr Bishop was already “undergoing community service to help people”9 and was somebody “who, at 35 years of age, may have rounded a corner”.10
[15] Third, a causative nexus existed between Mr Bishop’s drug addiction and his offending, a feature the Judge recognised, and which underlay the rehabilitative sentence.
[16] Fourth, and atypically, Ms Rose complained about her son not so that he would be brought to justice, but rather, that he would be brought to his senses. Importantly, this is apparent from contemporaneous sources and not mere revisionist history, the pre-sentence report records:
Ms Darcey Rose, Mr Bishop’s mother was contacted and she was able to verify much of what he discussed with the writer. She stated that due to her
7 Bedford v R [2021] NZCA 395 at [15]–[18].
8 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12]–[13]; and R v Taulapapa [2018]
NZCA 414 at [18].
9 Police v Bishop, above n 1, at [4].
10 At [5].
daughter’s mediation she has forgiven her son and her only motive in pressing charges was to “help stem his drug addiction”. Ms Rose believes he is finally facing and dealing with his addiction “which has always been at the root of his problems”.
[17] It follows a credible case existed for Mr Bishop’s discharge without conviction at the time of sentencing (on the basis direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending). But no such application was brought because Mr Bishop “just wanted it over so I could move on”.
[18] This brings me to the evidence of ongoing consequences of conviction. Brendan Britts, a registered mortgage broker with no knowledge of, or connection to, Mr Bishop, says convictions of the type in question “would be grossly prejudicial to any application for personal or business finance”. Mr Britts’ testimony accords Mr Bishop’s experience. Mr Bishop has been unable to obtain finance for his otherwise successful landscaping business, which has two employees. Mr Bishop adds:
I have structured the company so [my partner] is the sole director and shareholder. I had to do things this way to get insurance for my heavy equipment. I attach marked “B” the printouts from the Companies Office that shows this set-up. In reality I am the main driving force behind the company. I don’t know if the insurance company would accept the situation if I made a claim and the circumstances were investigated. It would be much more satisfactory to list myself as a fellow director and a 50% shareholder.
I have twice been asked to tender for landscaping school grounds. I know school contractors need to undergo a police check so I have declined. Even if I was given the chance to explain the circumstances I would find it humiliating to have to go through it all with people who are my customers and who are likely to just avoid the issue by using someone else.
We bought a house but I had to put the $500,000 mortgage in my mother’s name, not mine. I would far rather raise a mortgage in my own name, and let my mother disentangle herself from my affairs.
[19] Are these consequences out of all proportion to the gravity of the offending? By a very fine margin, I conclude they are. As observed, burglary is inherently serious, and the offending had aggravating features. But as discussed, there were significant mitigating features too, including the arguably distinctive feature in connection with Ms Rose’s complaint to Police. But for that complaint, the offending would have remained a private matter between mother and son.
[20] Still, a discretion remains. It is undesirable to overturn convictions long after they have been entered, in part because finality is an important consideration in the administration of criminal justice. As against these concerns, a credible case existed for Mr Bishop’s discharge without conviction at the time of sentencing.
[21] The respondent “agrees that the consequences of the appellant’s convictions are out of all proportion to the circumstances of the relevant offending”. Mr Wagner-Hiliau cited a case involving some of the present features. In Richardson v Police, the appellant was discharged without conviction on one charge of theft more than six years after sentencing.11 The appellant had “taken substantial steps to reform her life”,12 the offending was “opportunistic and unsophisticated”,13 the victim of the offending did not oppose the appeal and did “not wish the conviction to impede [the appellant’s] future job prospects”14 and the conviction impacted the appellant’s career. Unlike Mr Bishop, the appellant had a dangerous driving conviction arising after the challenged conviction.15
[22] Whereas Gendall J in Richardson placed weight on what had happened since sentencing, I respectfully consider the appropriate frame of reference is what might have happened at sentencing had all relevant information, then available, been before the Court. Otherwise, defendants could return to the courts years after the fact and routinely offer post-conviction rehabilitation as evidence to support belated discharges without conviction, thereby eroding the principle of finality, and in turn, public confidence in the administration of justice. That is why I have stressed the credibility of Mr Bishop’s discharge without conviction at the time of sentencing.
[23] I consider had all relevant information been before the Court at sentencing, including but not limited to the likelihood Mr Bishop would suffer in the ways identified, and that Ms Rose’s Police complaint was not intended to result in the conviction of her son — a point apparent from the pre-sentence report — a different
11 Richardson v Police [2015] NZHC 1431.
12 At [29].
13 At [42].
14 At [44].
15 Mr Bishop has minor historical drug-connected convictions that would expunged by the Criminal Records (Clean Slate) Act 2004.
outcome would have prevailed. The interests of justice permit that outcome now, despite the delay.
Result
[24]The appeal is allowed.
[25] Mr Bishop’s convictions are quashed, and an order is made discharging him without conviction.
……………………………..
Downs J
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