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…

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 Queen

Details

AGLC: Bishop v The Queen [2020] NZHC 1360
Case: [2020] NZHC 1360
Decision Date: 17 June 2020

CaseChat Overview and Summary

The appellant, Nahi Teraukura Bishop, appealed his sentence of two years and four months’ imprisonment for supplying and offering to supply methamphetamine, and selling and offering to sell cannabis. The appeal was based on the argument that the starting point for the methamphetamine offending was too high, resulting in a manifestly excessive sentence. The Crown opposed the appeal, arguing that the sentence was within the appropriate range.

The court had to decide whether the starting point for the methamphetamine offending was appropriate, and whether the sentence imposed was manifestly excessive. The court also needed to consider whether the Judge had correctly assessed the aggravating and mitigating factors, including the offender's addiction and guilty plea.

The court held that the starting point of two years and six months for the methamphetamine offending was within range, given the appellant's lesser role in the offending. The court noted that the Judge had taken into account the appellant's addiction and guilty plea, which led to a discount of 40 per cent. The court concluded that the end sentence was well within the range and not manifestly excessive. The appeal was therefore dismissed.

The court did not make any orders.

Orders