on the charge of possessing the Class C controlled drug cannabis for the purpose of sale is allowed. That sentence is set aside and a sentence of two years three months imprisonment is substituted.

BThe cumulative sentence of one month’s imprisonment on the receiving charge stands, as do the concurrent sentences imposed on the remaining charges.

C The order requiring forfeiture of the sum of $15,000 is set aside.

REASONS OF THE COURT

(Given by Heath J)

FREDERICK CHARLES BISHOP V R CA CA529/2009 16 March 2010

Introduction

[1] Mr Bishop was charged, in the District Court at Auckland, with one count of possessing the Class C controlled drug, cannabis, for the purpose of sale, three of receiving stolen property, one of possessing a pipe for the purpose of consuming the Class A controlled drug, methamphetamine and one of possessing explosives (25 ‘Rio 20-Super Game 32’ shotgun cartridges).

[2] The receiving charges arose out of separate incidents that occurred between

24 March and 3 November 2007. The remaining charges all relate to items found during the course of a search of Mr Bishop’s residence, on 3 November 2007.

[3] Mr Bishop was due to stand trial on 2 March 2009. At that time he entered pleas of guilty to five counts. On the remaining two (both alleging receiving stolen property) he was discharged. A pre-sentence report was requested and Mr Bishop was remanded until sentence.

[4] On 30 July 2009, Judge Paul imposed an effective sentence of two years and nine months imprisonment.[1] He ordered a sum of $15,000, found during the course
[1] R v Bishop DC Auckland CRI-2007-004-25333, 30 July 2009.
of the search on 3 November 2007, to be forfeited. An order destroying items located during the search was also made.

[5] Mr Bishop appeals against the sentence imposed on the grounds that it is manifestly excessive.

Facts

[6] At about 3pm on 3 November 2007, police officers attended at Mr Bishop’s residence in Massey to execute a search warrant. Their intention was to recover property they believed to have been stolen. Mr Bishop lived at the address with three flatmates. At the time the police officers called at the address two of the flatmates were present but the accused was not.

[7] The officers located stolen property in the garage. They entered the house. Some methamphetamine was located in one of the flatmate’s bedrooms. Powers contained in ss 18(2) and (3) of the Misuse of Drugs Act 1975 were invoked to search the premises for drugs.

[8] In Mr Bishop’s bedroom, a quantity of 25.6 grams of cannabis was located…

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 R

Details

AGLC: Bishop v R [2010] NZCA 66
Case: [2010] NZCA 66
Decision Date: 16 March 2010

CaseChat Overview and Summary

Frederick Charles Bishop appealed against his sentence of two years and nine months imprisonment, imposed by Judge Paul in the District Court at Auckland, for charges including possessing cannabis for the purpose of sale, receiving stolen property, possessing a pipe for consuming methamphetamine, and possessing explosives. The appeal focused on the sentence for the cannabis charge, which was deemed manifestly excessive. The Court of Appeal considered the appropriate starting point for the sentence, the relevance of the $15,000 found during the search of Bishop's residence, and the cumulative sentence for the receiving charges. The Crown conceded that the $15,000 could not be forfeited under the Misuse of Drugs Act 1975, and it was inappropriate to consider the money in assessing the commerciality of the offending.

The Court of Appeal found that the starting point of two and a half years imprisonment was too high, considering Bishop's role as a low-level dealer. The Court adopted a starting point of two years, with an uplift of six months for aggravating factors, and a discount of three months for the late guilty pleas. The end sentence for the cannabis charge should have been two years and three months imprisonment. The cumulative sentence of one month's imprisonment on the receiving charge and the concurrent sentences on the remaining charges were upheld. The order requiring forfeiture of the $15,000 was set aside.

Orders