Lowther v Police

[2023] NZHC 296

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-145

[2023] NZHC 296

BETWEEN

MARC WILLIAM LOWTHER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

23 February 2023

Appearances:

Appellant in person

G E R Alloway for Respondent

Judgment:

24 February 2023

Reissued:

24 October 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 24 February 2023 at 11.45 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

LOWTHER v NEW ZEALAND POLICE [2023] NZHC 296 [24 February 2023]

Introduction

[1]    The appellant, who prefers to be known as Mr Bishop,1 was sentenced in the District Court on 22 November 2018 to 12 months’ supervision in relation to breaching a protection order.2 Mr Bishop’s notice of appeal, filed on 23 September 2022, records he is appealing against the sentencing decision. However, some of the submissions filed in support of the appeal suggests he takes issue with the conviction, and I treat the appeal as one against both conviction and sentence.

Facts of the offending

[2]    In July 2015, a final protection order was served on Mr Bishop in favour of [redacted].

[3]    In July 2018, Mr Bishop telephoned [the protected person] and left an abusive message before sending a large number of abusive, threatening, and offensive text messages.

[4]    Mr Bishop pleaded guilty to the breach of the protection order and was sentenced by Judge Saunders.

District Court decision

[5]    At sentencing, the Judge clearly had considerable information about Mr Bishop before him. The pre-sentence report detailed Mr Bishop’s background, including the serious head injuries he sustained from accidents he suffered at the age of six and the age of eight. The report also explained that his father obtained custody of him when his parents separated when he was 11. That was the start of a very unhappy period of his life. Mr Bishop told the report writer he was sexually abused by an employee of his father, was not able to see his mother or his siblings for approximately five years, and then was convicted on two counts of indecent assault. The report explained that Mr Bishop has little respect for his father and blamed him for all his misfortunes. A sentence of supervision was recommended.

1      And accordingly I will refer to him as Mr Bishop in this judgment.

2      New Zealand Police v Lowther [2022] NZDC 27652.

[6]    The Judge clearly was alive to Mr Bishop’s difficult and complex background, and he expressed his sympathy for Mr Bishop’s circumstances. He explained that the sentence he was imposing was “purely to assist you” in rehabilitation, saying, “… we cannot rewrite the past. But we can try and provide some positive ways forward for you in the future”. It was for that reason he sentenced Mr Bishop to 12 months’ intensive supervision.

[7]    It appears that Corrections subsequently applied to review the sentence, because he was unwilling to participate in a Stopping Violence Services programme. However, that coincided with Mr Bishop relocating to the Waikato to support his ill mother, and it seems the application was withdrawn.

[8]    Mr Bishop filed written submissions, but it was difficult to discern what relevance they had to the appeal. Some pages were dedicated to physics equations, a subject Mr Bishop clearly has an affinity for, and others detailed his childhood history, including the accidents which caused his head injury, the medical treatment which followed, and the grievances he had about his upbringing with his father. Mr Bishop also takes issue with his convictions for indecent assault.

Leave to appeal out of time

[9]    The appeal is filed more than four years out of time.3 I must therefore consider whether leave should be granted to file the appeal allowing the appeal to be heard.

[10]   Mr Bishop explained the lengthy delay by saying that he has been looking after his ill mother. He said she was diagnosed with a terminal cardio-respiratory disease which was why he moved to the Waikato to look after her during his sentence of intensive supervision. Mr Bishop says she then broke her shoulder, and she subsequently broke her back. He was caring for her throughout this time. I accept, in those circumstances, and without the assistance of a lawyer, the delay is reasonably explained.

3      Criminal Procedure Act 2011, ss 231 and 248.

[11]   However, before granting leave to appeal out of time, I must also consider the merits of the appeal. In that regard, the basis of the appeal was not evident from the written submissions filed. When I discussed the basis of the appeal with Mr Bishop, it was clear that his grievance was not with either the conviction or the sentence, but with events which had happened prior to that which have adversely shaped his life.

[12]   The conviction was entered following Mr Bishop’s guilty plea, and he confirmed to me that he did commit the offence of breaching the protection order by sending the abusive messages to [the protected person]. Indeed, he said to me that as far as this case goes: “I pleaded guilty because absolutely I did do it”.

[13]   He also acknowledged that the sentence was appropriate, saying the sentence was “good for me”. In those circumstances, there is no discernible basis for allowing the appeal against either conviction or sentence. No miscarriage of justice has arisen.

[14]   I apprehend that the real miscarriage of justice in Mr Bishop’s eyes arises out of his treatment as a child and the fact he was taken away from a “good safe environment” with his mother and then exposed to events which adversely shaped his life. He is particularly aggrieved by his convictions for indecent assault, saying they have hampered him in his adult life. However, as I explained, I had no jurisdiction to revisit those matters on an appeal in respect of an entirely different conviction.

Conclusion

[15]   For the above reasons, the appeal has no merit. Accordingly, leave to appeal out of time is declined.

Solicitors:
Raymond Donnelly & Co., Christchurch

Copy To: Appellant