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 to be within range, reflecting the overall culpability of the offending.

[7]    Judge Turner settled on a starting point of three years and two months’ imprisonment for Mr Bishop. No uplift was applied for previous historical convictions. The Judge allowed credit of 25 per cent for Mr Bishop’s guilty pleas. No credit was allowed for Mr Bishop’s addiction as the Judge found the level of offending could not be explained by a cannabis addiction.  The Judge did, however, allow a   15 per cent deduction for the significant work Mr Bishop had undertaken to deal with his addiction including completing a nine-week residential programme and subsequent attending of AA meetings.

[8]    The end sentence was one of 21 months’ imprisonment which the Judge declined to commute to a sentence of home detention.

[9]    In refusing to commute the sentence, the Judge gave significant weight to the fact that in late 2021, while living at his mother’s address, Mr Bishop was caught in possession of 350 grams of cannabis and then made admissions to the police of drug dealing. He was referred to Te Pae Oranga (TPO), which is a Dunedin-based organisation offering an alternative resolution to what would otherwise be criminal prosecutions. Through his positive engagement with TPO, Mr Bishop was not prosecuted through the court.

[10]   The Judge considered that the fact Mr Bishop went on to commit the current offences, again while living with  his  mother,  was  indicative  of  an  attitude  by  Mr Bishop to continue with his drug-dealing activities notwithstanding efforts by the

4      Sinclair v New Zealand Police [2021] NZHC 2788.

authorities to keep him out of the general justice system and to allow him the opportunity to address his rehabilitative needs.

[11]   The Judge considered home detention was not appropriate because it did not carry with it the necessary level of denunciation and both personal and general deterrence.

Law on appeal

[12]   This Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.5 Otherwise, the Court must dismiss the appeal.6 An appeal court must focus on the identification of error, having regard to the discretionary nature of the decision.7

[13]   The Court of Appeal in Manikpersadh v R considered the appropriate approach in appeals against the refusal to grant home detention:8

An appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.

And further:9

…the proper approach of an appellant Court in cases such as this is that “the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellant review focusing … on the identification of error, if any, in the court below.”

[14]In Fairbrother v R, the Court of Appeal stated:10

5      Criminal Procedure Act 2011, s 250(2).

6      Section 250(3).

7      Doolan v R [2011] NZCA 542 at [39].

8      Manikpersadh v R [2011] NZCA 452 at [11].

9 At [12].

10     Fairbrother v R [2013] NZCA 340 at [30].

…the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[15]And finally, the Court of Appeal relevantly observed in Doolan v R:11

…In our view the critical point is that the sentencing decision as between imprisonment or home detention involves a discretionary exercise that necessarily engages all of the principles and purposes in ss 7 and 8 in the Sentencing Act. Those provisions of the Sentencing Act do not accord greater weight to factors such as denunciation or deterrence than the personal circumstances of the offender. The relative weight to be given to the principles and purposes of the Act is left to be determined by the sentencing judge in all the circumstances of the case.

(footnote omitted)

Submissions

Appellant submissions

[16]   Mr Stephenson submits the Judge erred in finding only a sentence of imprisonment could meet the purposes and principles of sentencing and contends that a sentence of home detention should have been imposed as the most appropriate and least restrictive sentence.

[17]   In particular, Mr Stephenson submits the Judge erred in not considering the progress Mr Bishop made in the Bridge Residential Treatment Programme, the changes in Mr Bishop’s behaviour, and the fact that Mr Bishop’s sentence for his only prior drugs conviction (in 2010) was community work.

[18]   Mr Stephenson says the Judge erred in failing to consider rehabilitation as relevant as to whether to commute the sentence of imprisonment. He submits that too much weight was placed by the Judge on the offending in 2021 that was not the subject of criminal prosecution.

11     Doolan v R [2011] NZCA 542 at [38].

Respondent submissions

[19]    Ms Brosnan, on behalf of the Crown, submits the Judge did not overlook or place insufficient weight on Mr Bishop’s rehabilitative efforts or prospects. She submits the Judge did not place excessive weight on the need to denounce and deter to the detriment of the other sentencing purposes and principles and in particular, rehabilitation.

[20]   Ms Brosnan says that although the Judge did not expressly refer to rehabilitation when considering whether to commute the sentence, that this Court ought to infer that the Judge did have regard to that sentencing purpose.

[21]   Ms Brosnan submits the Judge exercised his discretion appropriately and there is no error.

Discussion

[22]   Leave is sought for Mr Bishop to appeal out of time. Counsel explains that Mr Bishop raised the issue of an appeal against sentence with counsel soon after he was sentenced. Mr Stephenson was then waiting for the sentencing notes before providing further advice as to the merits of an appeal and had been working around his trial commitments in order to advise Mr Bishop. Ms Brosnan does not oppose leave being granted in those circumstances and I grant leave accordingly.

[23]   No issue is taken as to the starting point adopted by the Judge or with the credits that were allowed. The sole issue on appeal is whether the Judge erred in declining to commute the sentence of imprisonment to one of home detention.

[24]   Home detention was declined in this case for two reasons. Firstly, the scale of the offending representing what the Judge described as commercially motivated offending. Secondly, because Mr Bishop had not taken advantage of the opportunity afforded him when his cannabis offending in 2021 was not dealt with by way of police prosecution. Reading between the lines, it was clear the Judge considered Mr Bishop had then, that is in 2021, been given an opportunity to address his rehabilitative needs and yet he had continued to deal in cannabis.

[25]   Ms Brosnan does not suggest, and I do not accept, that the scale of this offending was at a level such that the only appropriate sentence in order to meet the sentencing purposes of denunciation and deterrence was a sentence of imprisonment. However, Ms Brosnan, in supporting the Judge’s decision, does highlight that in the case of Sinclair, which was discussed in the District Court, broadly similar offending was met by a sentence of imprisonment and not home detention.

[26]   Case comparisons when considering whether a sentence of imprisonment ought to be commuted to home detention are of limited value. Mr Sinclair’s offending was, I agree, broadly on a similar scale to that of Mr Bishop, but Mr Sinclair had purchased a cannabis operation, complete with a customer list, leading Gendall J on appeal to say, “Such black-market economics warrant a sentence of imprisonment and elevates the importance of the purposes of deterrence and denunciation.”12 On my assessment, Mr Sinclair’s offending was purely commercial. That offending was a consequence of a business transaction.

[27]   I agree with Mr Stephenson that Mr Bishop’s offending was, at least in part, driven by his addiction. That point of distinction led to the key submission advanced on behalf of Mr Bishop, that the Judge erred in failing to consider his rehabilitative needs. Standing back and looking at Mr Bishop’s longstanding relationship with cannabis, I accept that his offending has a strong causal connection to his entrenched cannabis addiction, notwithstanding the obvious commercial elements.

[28]   The reports before the Judge tell me that as a man now aged in his early thirties, Mr Bishop has been addicted to cannabis since the age of about 15 years. That addiction appears to be complicated by his mental health difficulties. He has been diagnosed as suffering from both bipolar disorder and ADHD. The pre-sentence report records that he had been admitted to Waikari Hospital on two occasions in 2016 and 2017 and had been subject to an indefinite compulsory treatment order that ceased in 2022 when he reverted to a voluntary status.

[29]   Although this offending was undoubtedly commercial, the fact of addiction is real.

12     Sinclair v Police 2021] NZHC 2788 at [32].

[30]   Two factors lead me to conclude that the Judge did err in declining to commute the sentence to one of home detention. First, whilst the Judge allowed a deduction to reflect Mr Bishop’s rehabilitative efforts, the Judge did not refer to rehabilitation in considering whether to commute the sentence. Essentially the Judge found that, having been given the opportunity to embark on a rehabilitative process back in 2021/2022, Mr Bishop had then thumbed his nose at that opportunity and continued on the same path of drug dealing.

[31]   In my view, the Court must exercise care when factoring into a sentencing decision a prior allegation of criminal offending that was not the subject of criminal charges, and therefore not the subject of a sentence. I accept the admitted 2021 drug dealing was a relevant consideration but not a factor that, in my view, ought to have effectively determined the sentencing outcome.

[32]   Plainly Mr Bishop was given a rehabilitative opportunity in 2021. But the rehabilitative path of a longstanding addict is commonly paved with failings. The real question is whether, when a failing gives rise to further criminal offending, the Court should have regard to the offender’s rehabilitative prospects, and how those prospects are then taken into account in assessing the sentencing principles of denunciation and deterrence.

[33]   In my view the measures undertaken by Mr Bishop since his most recent arrest are significant and were not afforded sufficient weight at sentencing. He had completed a nine-week residential treatment programme at the Salvation Army Bridge Programme. His sentencing had been deferred to enable him to complete that programme, indicating that at least at that point in time, his rehabilitative needs were recognised and prioritised. A treatment summary report from an AOD clinician at the Salvation Army recorded a number of salient findings including that:

(a)Mr Bishop was motivated to change;

(b)he was able to identify the link between issues in his life and substance use;

(c)he provided evidence of becoming abstinent from cannabis use; and

(d)a custodial sentence would not be in Mr Bishop’s best interests, given his psychiatric stability.

[34]   As at the date of sentencing, Mr Bishop had also participated in  the  Salvation Army aftercare programme. A reporting letter confirmed he had attended consistently, engaged in social events, was a good contributor at group sessions, and that his motivation towards recovery appeared to be consistent.

[35]   The Judge also had the benefit of a letter from Mr Bishop’s mother who, in addition to confirming his mental health diagnoses, had noted his improved demeanour post-arrest and having completed the Salvation Army treatment programme.

[36]   It follows that Mr Bishop had demonstrated his commitment to his rehabilitation following arrest and, by the time of sentencing, had positive structures in place to provide him support in the event of a community-based rehabilitative-focused sentence.

[37]   The second factor, in my view, favouring a sentence of home detention is that Mr Bishop’s only prior drug convictions were in 2009 and 2010, for which he sentenced to community work. His other criminal offending is very limited. He has never been sentenced to an electronically monitored sentence, let alone a sentence of imprisonment.

[38]   I agree with Mr Stephenson and the authorities to which I referred to earlier, that a sentence of home detention is a sentence that has strong elements of denunciation and deterrence. I do not consider the Judge had regard to that factor. I consider a home detention was the least restrictive appropriate sentence.

[39]    Although not addressed by the Judge, I have nevertheless considered the proposal advanced that Mr Bishop serve a sentence of home detention at his mother’s address to be unrealistic.

[40]As was observed by the Court of Appeal in Bryant v R:13

…where the drug dealing has been undertaken from a home environment, sending the offender back into that same environment will usually be inappropriate…

[41]   Mr Bishop was living at his mother’s address both in 2021 when he was found to be dealing in cannabis and was still residing at that address in relation to the current offending. Notwithstanding the best endeavours and intentions of his mother, I consider it would be inappropriate and adverse to his rehabilitative needs that he serves a sentence of home detention at his mother’s address. Recognising that there is an issue as to the suitability of the proposed address, Mr Stephenson submits that if the sentence is not to be commuted to home detention, Mr Bishop should be given leave to apply for home detention to an alternative address.

[42]   I am therefore prepared to allow  the  appeal  but  only  so  far  as  to  grant Mr Bishop leave under s 80I of the Sentencing Act to apply for release on home detention if and when he is able to advance a suitable address.

Result

[43]   The appeal  is  allowed to the extent that leave  is  granted under s 80I  for  Mr Bishop to apply for release on home detention.

...................................................

Eaton J

Solicitors:

Public Defence Service, Dunedin Crown Solicitors, Dunedin

13     Bryant v R [2011] NZCA 512 at [24].