Legal Research
Cases
R v Bishop

R v Bishop

Case [2009] NZCA 265 24 June 2009

Sentencing

Appeal

Jurisdiction

Disparity between Co-offenders

Criminal Law

No judgment structure available for this case.

Type to search within this case.

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…

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 R v Bishop

Details

AGLC: R v Bishop [2009] NZCA 265
Case: [2009] NZCA 265
Decision Date: 24 June 2009

CaseChat Overview and Summary

The appeal in R v Bishop was 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. The appellant, Oralia Kelly Rangimarie Bishop, was convicted alongside her co-offender, Ms Cullen, on the two counts they faced. The court was required to decide whether the sentence was manifestly excessive, focusing on two issues: whether the appellant should have received a discount for her time served on restrictive bail conditions, and whether there was an impermissible disparity between the sentences of the co-offenders.

The court considered the first issue, the discount for restrictive bail conditions. It noted that there is no requirement for a discount to be given, and that the time spent on bail was not overly long. More importantly, the extent to which the offender had complied with the bail conditions was a relevant factor. In this case, the appellant breached bail on four occasions, and the Judge was correct not to grant her a discount for time spent on bail conditions with which she did not comply.

The court then considered the second issue, the disparity between the sentences of the co-offenders. It found that there was no impermissible disparity. 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 Ms Cullen a discount for the very restricted bail conditions she had been under and with which she had complied, and for her reparation payment. The difference between the two sentences was rationally constructed on the basis of different mitigating features appropriate to the two offenders. The court concluded that there was no reason to think that a reasonably minded independent observer would be troubled by the differential.

The appeal was dismissed, and the sentences were upheld.

Orders