Bishop v Police - [2024] NZHC 3895

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…

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.

Continue reading Bishop v Police

Details

AGLC: Bishop v Police [2024] NZHC 3895
Case: [2024] NZHC 3895
Decision Date: 18 December 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Dominic Martyn Bishop appeals against his conviction for offences committed against his mother, Helen (or Darcey) Rose. The respondent, the New Zealand Police, does not oppose the appeal. Mr Bishop seeks to be discharged without conviction, a matter not considered at the time of his sentencing. The appeal was heard on 11 November 2024, with judgment delivered on 18 December 2024 by Downs J. The primary legal issues were whether the court could extend the time for the appeal and whether Mr Bishop should be discharged without conviction. Downs J found that the appeal should be heard out of time as it was in the interests of justice to do so. Downs J also found that the consequences of the convictions were out of all proportion to the gravity of the offending and discharged Mr Bishop without conviction. The court considered the delay in the appeal, the mitigating circumstances, and the ongoing negative consequences of the conviction on Mr Bishop's life and career.

The court balanced the competing interests of finality and the potential for a miscarriage of justice due to a material error in entering convictions. Downs J concluded that the delay was justified as there was merit in the proposed appeal and Ms Rose supported the discharge without conviction. Downs J also noted that the offending, while serious, had significant mitigating factors, including Mr Bishop's prompt guilty plea, efforts to reform before sentencing, and the causative nexus between his drug addiction and offending. Furthermore, Downs J highlighted that Ms Rose's complaint to the police was intended to help her son rather than seek his conviction. Downs J found that the ongoing consequences of the conviction, such as difficulties in obtaining finance and insurance, were out of all proportion to the gravity of the offending. The court allowed the appeal, quashed Mr Bishop's convictions, and discharged him without conviction.

Orders