Bishop v The Queen

[2020] NZHC 3050

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2020-454-000021

[2020] NZHC 3050

BETWEEN

LAURENCE ADAM BISHOP

Appellant

AND

THE QUEEN

Respondent

Hearing:

18 November 2020 (AVL)

Counsel:

S N Hewson for Appellant

E R Pairman for Respondent

Judgment:

18 November 2020

JUDGMENT OF ELLIS J

[1]    Mr Bishop appeals his sentence of 21 months’ imprisonment on charges of demanding with menaces, theft, and injuring with intent to injure. He says that his sentence should have been commuted to home detention.

Facts

[2]    The complainant owed Ms Bianca Somers $6,000. Ms Somers is Mr Bishop’s cousin. Ms Somers’ attempts to get the complainant to pay her back had failed. So she asked Mr Bishop, Ms Kelly Hancock and others to help her.

[3]    At around 3.45 pm on 2 June 2019, Mr Bishop, Ms Somers, Ms Hancock and two unidentified people unlawfully entered a house where the complainant was asleep on the couch. Mr Bishop demanded that he repay Ms Somers. The complainant said he did not have the money. Mr Bishop then assaulted the complainant, repeatedly punching him in the face and head, causing his nose to crack and bleed profusely. The

BISHOP v R [2020] NZHC 3050 [18 November 2020]

others yelled at the complainant and one of them joined Mr Bishop in the assault.  Mr Bishop pulled the complainant up off the couch by his collar and kneed him in the chin.

[4]    Mr Bishop then took the complainant’s keys, wallet, and phone before continuing to assault him, again with the assistance of another. As the group left the address, Mr Bishop threw a final punch at the complainant. The complainant’s car, wallet and cell phone were found in the possession of Mr Bishop and others later that same day.

Sentencing

[5]    On 26 May 2020 Judge Krebs  gave  sentence  indications  to  Mr  Bishop, Ms Somers and Ms Hancock.1 Although the defendants were, at that stage, “quite properly” charged with aggravated robbery, the sentence indication was based on amended charges of demanding with menaces, theft, and injuring with intent to injure.2 The Judge noted that this meant the indication process had taken on a “somewhat artificial flavour”.3

[6]    After setting out the alleged facts of the offending, the Judge indicated that he would adopt the same two-year starting point for all three offenders in relation to the demanding with menaces charge. He then imposed differing uplifts to reflect their different roles in the violent offending. This gave a starting point for Mr Bishop of two years and nine months’ imprisonment. Ms Somers’ indicated starting point was two and a half years’ imprisonment; Ms Hancock’s was two years’ imprisonment. The Judge deliberately gave no indication about discounts or about whether home detention for any of the three offenders might be an option.

[7]    Mr Bishop and his co-offenders accepted these indications, and on 24 July they were sentenced by the Judge.4 Mr Bishop was sentenced to 21 months’ imprisonment.5 His co-offenders received sentences of home detention.

1      R v Hancock DC Palmerston North CRI-2019-054-1517, 26 May 2020.

2      If the Crown had maintained the aggravated robbery charge against Mr Bishop, he would have been on his second strike and so required to serve his full sentence without parole.

3      The summary of facts for the aggravated robbery charge is materially the same as the summary of facts for the reduced charges.

4      R v Hancock [2020] NZDC 15450.

5      Discounts were afforded for his guilty plea and for time spent on EM bail.

[8]    The Judge expressed the view that, in Mr Bishop’s case, a sentence to home detention was insufficient to meet the purposes and principles of sentencing—in particular, the needs to hold him accountable and to denounce and deter. This view was based on Mr Bishop’s role in the offending, his previous breaches of EM bail, and his “difficulty with some earlier community-based sentences”.

The appeal

[9]    On appeal, Mr Bishop says the Judge erred in not commuting his sentence to home detention because:

(a)the pre-sentence report (which was negative, and recommended a sentence of imprisonment) proceeded  on  the  incorrect  basis  that  Mr Bishop still faced a charge of aggravated robbery;

(b)the Judge wrongly relied on the reference to 11 bail breaches in the pre- sentence report, which were unsubstantiated; and

(c)there is an absence of parity with the sentence imposed on Ms Somers, who had her sentence commuted to home detention notwithstanding that she was the instigator of the offending.

Extension of time

[10]   The appeal was filed out of time. An extension of time has not been opposed by the Crown, and leave is granted accordingly.

Discussion

[11]I deal with each of the matters listed at [9] above in turn.

[12]   First, I acknowledge that the pre-sentence report appears to proceed on the basis that the charge was one of aggravated robbery, which carries a maximum sentence of 14 years’ imprisonment.6 I also acknowledge that this may have played a

6      Crimes Act 1961, s 235.

part in the report writer recommending a sentence of imprisonment. But I do not accept that this would have played a material part in the Judge’s analysis. More particularly:

(a)the Judge was well aware (having expressly noted it in his sentence indication and in his sentencing notes7) that the charges had been reduced;

(b)the summaries of facts for the original aggravated robbery charge and the reduced charges were materially the same;

(c)the contents of the pre-sentence report suggest that the recommendation would have been one of imprisonment even if the lead charge had been correctly recorded as demanding with menaces;8 and

(d)the Judge expressly turned his mind to the question of whether home detention should be substituted.

[13]   Secondly, the Crown has now provided further detail about the EM bail breaches. The relevant  records  show  10  instances  of  non-compliance  between  18 April 2020 and 24 July 2020, none of which were formally recorded as breaches. Mr Bishop offered further explanations for some of them through counsel today, and I accept that they are, at best, relatively minor matters. But while the Judge did refer to “previous breaches of EM bail” as one of the reasons for not commuting to home detention, it is difficult to conclude that he put any significant weight on those breaches. He had already acknowledged that he had little information about the breaches and, indeed, he also allowed a discount for the time that Mr Bishop had spent on EM bail. The Judge said:

7 At [18].

8      The maximum sentence for which is seven years’ imprisonment. As the Judge recorded (at [10]), the pre-sentence report “suggests Mr Bishop has no genuine remorse, that he has not engaged in any rehabilitative programmes in the past, that he lives an unstructured lifestyle and has antisocial peers. It suggests he is anti-authoritarian with a strong sense of entitlement. It is said he has a reputation within the community as standing over other people and threatening violence.”

[20] … I understand, and there is a representative in Court to confirm, that there have been no hiccups while Mr Bishop has been on electronically monitored bail and he is entitled therefore to a discount in that regard.

[14]   And the Judge made it clear that there were other matters that militated against a home detention sentence in Mr Bishop’s case.

[15]   Thirdly, I understand, to some extent, that Mr Bishop feels unfairly treated by comparison with Ms Somers. The facts suggest that she was, indeed, the instigator of the offending, and it seems that Mr Bishop’s more positive qualities are his loyalty to whānau and his willingness to help those close to him. But as the Judge made very clear, it was Mr Bishop’s lead role in the violence meted out to the complainant, the negative pre-sentence report, and his criminal history (which is extensive and includes a conviction for similar offending,9 for which no uplift was imposed) that distinguished him from his co-offenders. The decision to sentence  them—but not  Mr Bishop—to home detention is entirely explicable on those bases. As the Judge noted, the sentencing purposes of denunciation and deterrence could not otherwise adequately be met.

Result

[16]   I am unable to discern any error in the Judge’s approach or analysis. Leave to appeal out of time is granted but the appeal is dismissed.

Rebecca Ellis J

Solicitors:

Crown Solicitor, Palmerston North for Respondent

9      Mr Bishop was sentenced for this offending in 2015. He received a sentence of four years and six months’ imprisonment (and a first strike warning) for a robbery involving firearms and violence; the victims were a couple in their seventies and their son.