R v Bishop

[2009] NZCA 265

IN THE COURT OF APPEAL OF NEW ZEALAND

CA203/2009
[2009] NZCA 265

THE QUEEN

v

ORALIA KELLY RANGIMARIE BISHOP

Hearing:17 June 2009

Court:Chambers, MacKenzie and Simon France JJ

Counsel:J B M Henderson for Appellant

M D Downs for Crown

Judgment:24 June 2009 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by MacKenzie J)

[1]       This is an appeal against a sentence of two and a half years imprisonment for aggravated robbery and assault with intent to injure imposed by Judge Roberts after a jury trial in the District Court at New Plymouth in March 2009.

Background

[2]       The appellant (Ms Bishop) is a 21 year old unemployed woman.  The co-offender (Ms Cullen) is a 27 year old woman.  The complainant and the appellant are cousins.  On 6 May there was a party at which both co-offenders and the complainant were present.  Around midnight the party ran dry and the complainant gave the co-offender $40.00 in cash to buy alcohol.  The co-offender left in a vehicle.  At some point it seems that the appellant joined the co-offender in that vehicle, but the two were unable to source the required alcohol.  In the early hours of the morning, the complainant tracked the offenders down in their vehicle and demanded the return of her money.  They said that they did not have it and an argument ensued.

[3]       The appellant then physically attacked the complainant.  The complainant was struck and fell to the ground.  She was kicked while she lay on the ground, including a kick to the head.  Both co-offenders participated in this part of the attack.  One of the co-offenders then ripped the complainant’s bag from her shoulder and took it.  The bag contained a Nokia cellphone, a leather Roxy wallet, a leather “Caterpillar” bag, some tobacco and a lighter, an EFTPOS card and the like, some personal photographs, and $360.00 cash.  The total value was $809.00. 

The sentencing

[4]       The appellant and Ms Cullen were convicted on the two counts which they faced: aggravated robbery and assault with intent to injure.  At sentencing, both co-offenders continued to contest the jury’s verdict.  The Judge described this stance as “incomprehensible”.

[5]       The Judge noted that the appellant had a previous record involving violent crimes, dishonesty crimes, driving offences, and breaches of community work, and that this had included six previous sentences of imprisonment.  He recorded the details of the victim impact statement, noting the victim’s anger toward the appellant.  He discussed in detail the pre-sentence reports on both co-offenders.  The pre-sentence report on the appellant notes that she had been in casual work as a car groomer;  that she had been drinking heavily before the offence;  that she expressed remorse and offered reparations;  but also that the author of the report had doubt about the appellant’s intention to rehabilitate herself because she had said these things before.

[6]       The Judge noted that both of the co-offenders had been on restrictive bail conditions:  five months for the appellant and seven for the co-offender.  However, he also noted that the appellant had been granted bail on 16 May 2008 and had breached it;  that it was reinstated on 25 June and she breached it again twice;  that it was reinstated again on 12 August and that she had breached it again on 16 October.  He also noted that when he sentenced the appellant on a previous occasion, she had given an assurance that if she was given community service she would stay out of trouble.  This she has failed to do.

[7]       The Judge noted that the co-offender, by contrast, had kept to her bail conditions, and even that she had exceeded his expectations in this, as he had little faith in her when he granted it.  He noted too that she had turned up to Court with $400.00 ready to pay reparations. 

[8]       The Judge adopted a starting point for both offenders of two and a half years.  In doing so he took into account counsel’s submissions and referred in particular to R v Mako [2000] 2 NZLR 170. He found no mitigating or aggravating factors for the appellant. He found that the co-offender had significant mitigation in the form of the reparations and her time spent on bail (since she complied with bail conditions). He mentioned that the co-offender had a sporting background and urged her to apply the discipline she had learned from that endeavour to the rest of her life. The appellant received an end sentence of two and a half years imprisonment, and the co-offender received an end sentence of nine months’ home detention, plus 250 hours community work.

Appellant’s submissions

[9]       The appellant concedes that a sentence of imprisonment was inevitable.  In his oral submissions, Mr Henderson acknowledged that, viewed in isolation, the sentence of two and a half years was appropriate.  He submits however that there are two factors which render it manifestly excessive.

[10]     The first is that it is submitted that the appellant should have received a discount for her time served on restrictive bail conditions.  Counsel for the appellant referred in his written submissions to a number of cases where this Court has endorsed a discount for time spent on restrictive bail conditions in general terms.  In R v Faisandier CA185/00 12 October 2000 there was a lump discount for the mitigating features and the time spent on bail.  The Court of Appeal did not think that a more mathematical approach was necessary, but adjusted the discount to reflect a conclusion that the time on bail had not been properly represented.  In R v Aram HC AK CRI-2004-004-007049 12 October 2006 Stevens J discounted the sentence by 12 months to acknowledge the 18 months spent on a rather restrictive bail regime.  In R v Potoru HC AK CRI 2006-092-003877 14 September 2007 John Hansen J also allowed some six months in recognition of ten months on highly restrictive bail conditions.

[11]     The second is the submission that the final sentences show a disparity between the co-offenders.  Counsel refers to s 8(e) of the Sentencing Act 2002 and the principles as to disparity between co-offenders as enunciated in R v Lawson [1982] 2 NZLR 219 (CA). Counsel refers also to the comments of Thomas J to similar effect in Derks v Police HC AK AP 139/92 9 June 1992.

Respondent’s submissions

[12]     Counsel for the respondent in his written submissions submits that bail on restrictive detention is not to be equated with time on remand, and that time spent on electronically monitored bail does not necessarily require a discount:  R v Faisandier;  R v Edwards [2008] NZCA 205. The respondent submits that the repeated breaches of the terms of bail meant that the appellant was not entitled to a discount, as the Judge held. The respondent submits that the differences in outcome were justified by the different circumstances of each, and that Ms Cullen’s sentence was a lenient response.

Discussion

(a)      Time spent on restrictive bail conditions

[13]     A discount for restrictive bail conditions is a matter for assessment by the sentencing Judge.  There is no requirement that a discount must be given.  Here, the time spent on bail was not overly long, some four and a half months.  More importantly, a clearly relevant factor was the extent to which the offender had complied with the bail conditions.  In this case, bail was breached on four occasions.  The Judge was correct not to grant the appellant a discount for time spent on bail conditions with which she did not comply.

(b)      Disparity

[14]     There is no impermissible disparity between the sentences of the co-offenders in this case.  The starting points were the same, and it was only in the discount for mitigating factors that there was a difference.  A difference between the end sentences was therefore appropriate.  The Judge allowed to Ms Cullen a discount for the very restricted bail conditions she had been under and with which she had complied.  He also allowed her a discount for her reparation payment.  While he did not quantify what these mitigating factors were worth, he must have concluded they justified at least a six months reduction, because only if he would otherwise have imposed a sentence of two years or less could home detention be an available sentence.

[15]     Lawson articulates an objective test based on whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.  The disparity principle is not to be applied on a mathematical basis to end sentences, but with due appreciation of the circumstances and characteristics of each of the offenders.

[16]     In the instant case, the difference between the two sentences was rationally constructed on the basis of different mitigating features appropriate to the two offenders.  There is no reason to think that a reasonably minded independent observer would be troubled by the differential, even if account were taken only of the sentences actually imposed, without regard for their practical effect.

[17]     When regard is had to the practical effect of the sentences, it may be questionable whether there is a disparity unfavourable to the appellant.  Ms Cullen spent seven months prior to sentence on bail conditions which included a 24 hour curfew.  She complied with those conditions.  She must serve the whole of the nine month sentence of home detention imposed.  That is practically equivalent to 16 months served on home detention.  She must also undertake 250 hours community work.  She has also paid $400 reparation.

[18]     The appellant served four and a half months on bail, on conditions with which she did not adhere.  She will be eligible for parole, on her two and a half years sentence, after ten months.  She had already served about five months of the sentence before sentencing, after bail was eventually revoked.  There is no possibility that a reasonably minded independent observer might think the difference unjust to the appellant.

Result

[19]     The appeal is dismissed.

Solicitors:          

Crown Law Office, Wellington