Bishop v The Queen

[2020] NZHC 1360

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2020-412-000011

[2020] NZHC 1360

BETWEEN

NAHI TERAUKURA BISHOP

Appellant

AND

THE QUEEN

Respondent

Hearing:	16 June 2020
Appearances:	M J Scally for Appellant R D Smith for Respondent
Judgment:	17 June 2020

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 17 June 2020 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date  17 June 2020

Introduction

[1]    Nahi Teraukura Bishop appeals his sentence of two years and four months’ imprisonment for supplying methamphetamine, offering to supply methamphetamine, selling cannabis and offering to sell cannabis. He appeals on the ground that the starting point for the methamphetamine offending was too high, leading to an end sentence that was manifestly excessive.

BISHOP v R [2020] NZHC 1360 [17 June 2020]

Background facts

[2]    Between 22 October 2018 and 21 November 2018 Mr Bishop sold a combined total of 4.6 g of methamphetamine and offered to supply a further 5.5 g in total in multiple transactions. He also sold $400 worth of cannabis and offered to supply cannabis worth $1,675, again over a number of transactions. At the time the offending began, Mr Bishop was subject to sentences of community detention and community work.

District Court decision

[3]    Judge Crosbie sentenced Mr Bishop on 17 April 2020.1 The Judge said the offending fell within band two of Zhang v R because the quantity was more than 5 g but less than 250 g.2 He considered while not right at the bottom, Mr Bishop was close to the lower end of that band. He said the better assessment of where the offending sat was the starting point proposed in the Crown’s submissions which was two years and six months.3

[4]    For the cannabis offending, the Judge identified R v Terewi as the guideline decision for cannabis offending.4 He again preferred the Crown’s proposed starting point of two years. While that would have meant a  cumulative starting point  of  four years and six months, the Judge adjusted the starting point to four years on a totality basis.

[5]    The Judge noted that any aggravating features of the offending, for example, the number of sales, was already built into the assessment of the starting point. He also appeared to be unsure whether the offence was committed while Mr Bishop was subject to a sentence, saying “it is a little bit grey for me just looking at the time of things”. He concluded there would be no uplift for being on sentence while offending.

[6]    The Judge considered there was proof of a significant addiction issue that was a primary driver of Mr Bishop’s offending. For this, the Judge gave a 20 per cent

1      R v Bishop [2020] NZDC 6579.

2      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

3 At [20].

4      R v Terewi [1999] 3 NZLR 62 (CA).

discount, which he rounded up to 10 months. The sentence thus sat at three years and two months. Finally, a full 25 per cent discount was given for Mr Bishop’s guilty plea which, again, was rounded up to 10 months.  An end sentence of two  years and   four months was imposed.

Principles on appeal

[7]    Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.5 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, “…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.6 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7 The focus of an appellate court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached”.8

Submissions

Appellant’s submissions

[8]    For Mr Bishop, Ms Scally submits Mr Bishop’s offending should be considered to sit at the bottom of band two because of his “lesser” role in the offending.9 She says while the culpability factors identified in Zhang are directed at participation in multi-offender operations, they are relevant for sole offenders such as Mr Bishop, a street level/subsistence dealer, as they share the same culpability features as a minor player in a larger organisation.

5      Criminal Procedure Act 2011, ss 250(2) and 250(3).

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

7      Ripia v R [2011] NZCA 101 at [15].

8      Skipper v R [2011] NZCA 250 at [28].

9      See Zhang, above n 2, at [126].

[9]    She says a starting point of only two years should have been adopted. She cites several cases in support.10 Notably, in Tuuta v R the High Court considered a starting point of three years was too high for offending of supply of 16.3 g, where $4,230 in cash and a sawn-off shotgun were found in the offender’s possession. The appeal was allowed, and in substituting a reduced sentence, a starting point of two to two and a half years’ imprisonment was said to be within range for the methamphetamine dealing.

[10]   Ms Scally also highlights no money or stores of drugs were found when a police search was conducted at Mr Bishop’s address, suggesting this offending is low-level, subsistence offending to fuel an addiction.

Respondent’s submissions

[11]   Mr Smith for the Crown submits a starting point of two years and six months was within range. He notes that in Zhang, one of the individual appeals within that case (Ms Crighton’s) attracted a starting point of two years for offending involving the supply of only 3.75 g and a lesser role in the offending.

[12]   He submits Judge Crosbie was generous not to impose an uplift for the offending having occurred while Mr Bishop was still subject to release conditions. The 20 per cent discount for addiction and 25 per cent guilty plea discount were also generous. Ultimately, the end sentence of two years and four months was not manifestly excessive.

Analysis

[13]   In my view, the starting point adopted of two years and six months was within range. While the Judge did not discuss the culpability in the terms used in Zhang of “lesser”, “significant” and “leading”, it is  clear  he  sentenced  on  the  basis  that  Mr Bishop’s role was lesser and put him towards the bottom of band 2.

[14]   While Ms Scally has referred me to other cases to suggest the starting point was high, I do not consider they demonstrate the starting point was out of line. In any

10     Roberts v R [2019] NZHC 3319; Govender v R [2019] NZHC 3212; and Tuuta v R [2019] NZHC.

event, I consider consistency is best achieved by using the tariff decision in Zhang and assessing the appellant’s culpability using the criteria identified in that decision.

[15]   While the appellant placed much weight on the decision in Tuuta, where the appellant was found with 16.3 g of methamphetamine and the High Court considered a starting point of two to two and a half years’ imprisonment would have been within range for the drug offending. I do not consider the level of Mr Bishop’s offending is so different that a starting point of two years and six months (which was subsequently adjusted for totality) was excessive. While Mr Tuuta was in possession of a firearm, that was the subject of a separate charge. I also do not consider the fact Mr Bishop had no money in his possession lessened his offending given it occurred prior to a prison sentence and he was apprehended after his release from prison when he contacted his supplier with a view to recommencing supply, but had had no opportunity to recommence dealing.

[16]   Similarly, when I look at the two year starting point for Ms Crighton in the Zhang appeal, which involved 3.75 g supply of methamphetamine and where she exhibited “lesser” involvement, the two and a half year starting point for Mr Bishop cannot be criticised. Finally, the appellant referred me to the case of Govender, where the appellant was sentenced on the basis of supplying 29 g of methamphetamine and 10 g of cannabis.11 The District Court Judge imposed a starting point of three years and six months’ imprisonment for the lead charge of methamphetamine supply and her appeal of the sentence imposed was dismissed. Again, this suggests to me that the starting point for Mr Bishop’s offending was entirely appropriate; being a year less before the discount for totality.

[17]   I also accept Mr Smith’s submission that the District Court Judge could have uplifted the sentence for offending whilst subject to a sentence. This is because, on 25 July 2018, Mr Bishop was sentenced to four months’ community detention and 200 hours’ community work for theft and burglary.12 The Judge would have been justified in seeing that as an aggravating factor justifying an uplift of some months.13

11     Govender v R, above n 10.

12     He was later re-sentenced to three months’ imprisonment as he had failed to comply with his sentence of community detention and community work: Police v Bishop [2019] NZDC 14774.

13     See R v Lefupa (1997) 15 CRNZ 262 (CA) at 265.

[18]   There is no issue taken with the significant credit given to Mr Bishop for addiction and the full credit for a guilty plea. I am, therefore, satisfied that the end sentence was well within range and not manifestly excessive. The appeal is therefore dismissed.

Solicitors:

Public Defence Service, Dunedin Crown Solicitor, Dunedin