Bishop v The King - [2024] NZHC 1944

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2024-412-15

[2024] NZHC 1944

BETWEEN
JOHN SHAUN BISHOP

Appellant

AND

THE KING

Respondent

Hearing: 15 July 2024

Appearances:

B P Stephenson for Appellant M E A Brosnan for Respondent

Judgment:

15 July 2024

ORAL JUDGMENT OF EATON J

(appeal against sentence)

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BISHOP v R [2024] NZHC 1944 [15 July 2024]

Introduction

[1] John Shaun Bishop pleaded guilty to charges of possession of cannabis for supply,1 and selling cannabis.2 On 21 February 2024 he was sentenced by Judge Turner to one year and nine months’ imprisonment. Mr Bishop now appeals his sentence. He says the sentence of imprisonment should have been commuted to one of home detention.

The facts

[2] In April 2023 police identified Mr Bishop as a local drug dealer believed to be selling cannabis. Police inquiries revealed that in the 10 or so week period between 1 May 2023 and 20 July 2023 Mr Bishop had sold a total of 58 ounces of cannabis, 71 half ounces of cannabis, 129 $100 bags of cannabis and 106 $50 bags of cannabis. That is said to be a conservative estimate. Based on it, the value of the cannabis sold was just under $48,000.

[3] On 3 August 2023 police executed a search warrant at Mr Bishop’s address. On meeting with the police, Mr Bishop was cooperative and immediately showed police the cannabis in his bedroom. He also showed police cash he had received from sales of cannabis.

[4] In his bedroom police found 12 one-ounce bags, 15 half ounce bags, 18 $100 bags and 28 $50 bags. In combination that cannabis is said to have a value of about $11,000. In addition, just under $14,000 in cash was found along with scales and what is described as a burner cell phone.

Sentencing decision

[5] In sentencing Mr Bishop, the Judge accepted that this offending fell within band 2 of the Court of Appeal guideline decision of R v Terewi.3 The Judge considered this was commercial dealing in cannabis, although acknowledged there was no level of sophistication, describing Mr Bishop as being in business for himself. The Judge

1      Misuse of Drugs Act 1975, s 6(1)(f) and 2(c). Maximum penalty: eight years’ imprisonment.
2      Misuse of Drugs Act 1975, s 6(1)(e) and 2(c). Maximum penalty: eight years’ imprisonment.
3      R v Terewi [1999] 3 NZLR 62 (CA).

observed Mr Bishop was able to obtain significant quantities of cannabis and in a relatively short period had sold just under $48,000 worth, giving an indication of the scale of the operation.

[6] The Judge made particular reference to Sinclair v New Zealand Police4 where a starting point of three years and two months’ imprisonment was adopted for broadly similar cannabis offending. On appeal, the High Court in that case considered the starting point…

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 The King

Details

AGLC: Bishop v The King [2024] NZHC 1944
Case: [2024] NZHC 1944
Decision Date: 15 July 2024

CaseChat Overview and Summary

John Shaun Bishop was convicted of possession of cannabis for supply and selling cannabis. He appeals his sentence of one year and nine months' imprisonment, arguing it should have been commuted to home detention. The High Court considered whether the trial Judge erred in declining to commute the sentence. The court found that the trial Judge had not sufficiently considered Bishop's rehabilitative needs and efforts, which included completing a residential treatment programme and participating in an aftercare programme. The court also noted that Bishop had not been previously sentenced to imprisonment and had only been sentenced to community work for his prior drug convictions. The appeal was allowed, granting Bishop leave to apply for release on home detention if he can provide a suitable address.

Orders