Bishop v The Queen - [2016] NZHC 3054

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000286 [2016] NZHC 3054

BETWEEN
RAEWYN TEPANA BISHOP

Appellant

AND

THE QUEEN Respondent

Hearing: 13 December 2016

Counsel:

N G Cooke for Appellant
H D Benson-Pope for Respondent

Judgment:

14 December 2016

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 14 December 2016 at 1 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
N G Cooke, Auckland.
Kayes Fletcher Walker, Manukau.

BISHOP v THE QUEEN [2016] NZHC 3054 [14 December 2016]

The issue

[1] This is a sentence appeal in relation to serious drug offending.1 The appellant contends her three and a half year term of imprisonment is manifestly excessive, primarily by reference to her role in the offending.

Background

[2] The appellant, Feng Di Chen and Xijie He imported approximately

18 kilograms of ephedrine to New Zealand over four consignments. The drugs were worth approximately $2 million. Mr Chen was the primary offender. Through contacts in China he sourced ephedrine for the New Zealand market. Mr He was the distributor, and both he and Mr Chen supplied ephedrine here. The appellant’s role was less significant, but not unimportant. She identified the addresses to which the drugs were to be sent from China, provided that information to Mr Chen and arranged for the drugs’ collection. As with the other defendants, the appellant pleaded guilty the day before trial in consequence of a sentence indication. And like them, she had hitherto exercised her right to silence.

[3] The Judge adopted starting points of 10 and a half years’ imprisonment in relation to Mr Chen, six years’ imprisonment in relation to Mr He, and five years’ imprisonment in relation to the appellant. The Judge mitigated the appellant’s sentence by six months to reflect her age (she was 55 and a grandmother), illness in her family and prior good character (notwithstanding historic drug convictions). The Judge then afforded the appellant a further 25 percent for her late plea of guilty on the basis of a Crown concession that was appropriate. The other defendants received the same discount for their late pleas. Mr Chen’s sentence was seven years and nine months’ imprisonment; Mr He’s was four years and one month’s imprisonment.

[4] The appellant submits the Judge erred in adopting a five year starting point as she played little role in the offending, and did not appreciate its true scale. The appellant also invites attention to the level of discount for personal mitigating
features. Before considering these points, a little more detail is necessary.

1 R v Bishop [2016] NZDC 15939.

[5] As observed, the defendants sought a sentence indication the day before trial. The Crown advanced submission in relation to each defendant’s role by reference to a summary of facts that ultimately formed the basis of the defendants’ pleas of guilty. The Judge said this about the appellant’s role at the sentence indication hearing:2

Ms Bishop’s role, it is alleged, was to provide addresses and…

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 [2016] NZHC 3054
Case: [2016] NZHC 3054
Decision Date: 14 December 2016

CaseChat Overview and Summary

Raewyn Tepana Bishop appealed against her sentence of three and a half years’ imprisonment for her involvement in the importation of approximately 18 kilograms of ephedrine into New Zealand. Bishop was one of three individuals involved in the importation of the drugs, which were worth approximately $2 million. Feng Di Chen was the primary offender who sourced the drugs from China, while Xijie He was the distributor. Bishop's role was less significant but still important, as she identified the addresses to which the drugs were to be sent from China and arranged for their collection. Bishop argued that her sentence was excessive, particularly in comparison to the sentences of the other two offenders, and that the Judge had erred in adopting a five-year starting point for her sentence. The court rejected Bishop's arguments, finding that her role in the offending was not as minor as she suggested and that she was aware of the commercial nature of the operation. The court also found that the sentence was appropriate given the nature and scale of the offending and the personal mitigating factors that were taken into account.

The High Court of New Zealand found that Bishop's appeal against her sentence was without merit and dismissed the appeal. The court found that the sentence imposed by the Judge was appropriate, taking into account the nature and scale of the offending and the personal mitigating factors that were considered. The court also made some observations about the role of counsel in raising potential errors with the Judge and the need for care in making Crown concessions that may promote sentencing discounts inconsistent with principle and practice. Overall, the court found that Bishop was fortunate to have escaped a more severe sentence.

Orders