R v Bishop

[2008] NZCA 97

IN THE COURT OF APPEAL OF NEW ZEALAND

CA73/2008
[2008] NZCA 97

THE QUEEN

v

BARBARA JOY BISHOP

Hearing:14 April 2008

Court:Hammond, Williams and MacKenzie JJ

Counsel:S A Saunderson-Warner for Appellant

M D Downs for Crown

Judgment:24 April 2008 at 11 am

JUDGMENT OF THE COURT

A.       The appeal is allowed.

B.       The sentence of nine months imprisonment is quashed.

C.       A sentence of four and a half months imprisonment is substituted.

D.       The conditions imposed will apply to that substituted sentence.

REASONS OF THE COURT

(Given by MacKenzie J)

[1]       The appellant appeals against a sentence of nine months imprisonment imposed by Judge Crosbie in the District Court at Timaru on a charge of assault as a party: DC TIM 2007-076-180 15 February 2008.

Facts

[2]       The facts, as they appear from the notes of the victim’s evidence, the Judge’s sentencing notes and the submissions of counsel, may be briefly summarised.  The victim of the assault was the appellant’s 15 year old son.  On 27 January 2006, the appellant and her former husband, Mr Bishop, were driving the son from Ruapuna near Geraldine to Dunedin.  The son lived with his father in Queenstown and had spent a period over the school holidays staying with his mother and her husband.  While the three were driving south a number of arguments and verbal altercations arose, which became the subject of charges against the appellant and her husband.  The formulation of the indictment was such that it is necessary to distinguish between three incidents. 

[3]       The first was alleged to have occurred when they were driving near Geraldine.  The son’s evidence was that the appellant turned from the front passenger seat and punched and slapped her son in the face at least three times, causing his nose to bleed.  He responded by hitting her once in the forehead.  That formed the basis of count 1 in the indictment, a count of assault, against the appellant alone.  We describe that as “incident 1”.

[4]       Mr Bishop then stopped the car and the son got out.  There was a struggle between Mr Bishop and the son, in which the son said he was hit in the cheek, punched and thrown over the tow bar of the vehicle’s trailer by Mr Bishop.  The son got Mr Bishop in a headlock, from which he escaped and kicked the son, to the side of the body, chest, kidney and upper thigh.  Mr Bishop then yelled out to the appellant for her to get some binding tape from the vehicle.  She brought the tape to him, which he used to restrain the son by taping the son’s legs together and then taping his arms to his legs.  Attempts were then made to place the son in the vehicle.  In the course of these events, the son kicked Mr Bishop in the face.  Mr Bishop pulled him from the vehicle onto the ground (hitting his head on the step of the vehicle) and kicked him further.  While this was happening the appellant was standing alongside watching and did not intervene.  Mr Bishop shouted to her to “get the cops” but she said “no, we will take him to the Geraldine Police Station”.  For these events, both the appellant and Mr Bishop faced a count of assault, as parties.  We describe these events as “incident 2”.

[5]       They did then call at the Geraldine Police Station, but no one was in attendance.  The journey continued, with the victim still partly tied.  The victim made a cell phone call to his father before the appellant took his cell phone from him.  His injuries caused a build up of blood in his mouth, which he spat onto a seat.  That infuriated Mr Bishop, who stopped the car and the victim got out.  Mr Bishop kicked and punched him again at least twice.  That was done within view of a passing motorist, who stopped and intervened.  That point was the first time the appellant asked her husband to stop.  Police arrived shortly after.  That incident formed the basis of a count of assault with intent to injure against Mr Bishop.  The appellant did not face any charge arising from that incident.  We describe that as “incident 3”.

[6]       Mr Bishop pleaded guilty to the charges that he faced arising from incidents 2 and 3, and was sentenced by Judge Noble on 5 September 2007: DC TIM CRI-2007-076-745.  Mrs Bishop elected trial by jury.  She was acquitted on the count in respect of incident 1 (where parental discipline was raised as a defence), and convicted on the count in respect of incident 2.  She was sentenced by Judge Crosbie on 15 February 2008.

The Judge’s sentencing remarks

[7]       The Judge said at the outset of his remarks that this case is not about the correction or discipline of a child with emotional or behavioural difficulties; rather it was about an unjustified, excessive and brutal use of force by Mr Bishop and the appellant’s assistance in that.  After describing the facts, he noted that the appellant was being sentenced for being a party to the initial assault of binding her son and the events that took place in getting him into the car (which we have described as incident 2), and that the Crown had also said to the jury that the appellant had failed in her duty to intervene.  The Judge referred to the probation report, the victim impact report, and a number of letters of support for the appellant.  He described some of those as entirely unsatisfactory in that they amounted to an attack on the verdict rather than presenting any balanced view.  In terms of the approach in R v Taueki [2005] 3 NZLR 372 (CA), he described the aggravating features as being: that actual violence was used in which the appellant had participated; that she had the opportunity to intervene and to at least limit the violence after he was tied; and that she had abused a position of trust. He accepted that she may well have been scared. He said that there were no mitigating features relating to the offending. He did not accept that the appellant was remorseful. He noted, as an aggravating personal factor, convictions for attempting to procure the murder of a former partner and of threatening to kill seven years earlier. He noted the probation report recommendation of supervision. He referred to the relevant purposes and principles of sentencing as being to hold the appellant to account and to deter, both the appellant and more generally those in positions of trust. He described rehabilitation as being less significant than those matters. He expressed himself satisfied that the purposes and principles of sentencing could not be met by a community sentence, and he specifically rejected home detention or community detention, as undermining the need for both specific and general deterrence and denunciation. He adopted a starting point of nine months imprisonment, which because of the absence of mitigating factors became the end sentence.

Counsel’s submissions

[8]       Counsel for the appellant submits that: the sentence was manifestly excessive; a sentence of imprisonment was inappropriate and should not have been imposed; the purposes and principles of sentencing could be met by a non custodial sentence; and the Court did not impose the least restrictive sentence and did not properly apply the hierarchy of sentences..  She describes a sentence of imprisonment as a last resort and submits that s 16 of the Sentencing Act 2002 (the Act) in effect provides a presumption against imprisonment.  She submits that a sentence short of imprisonment could have provided adequate deterrence and denunciation of the appellant’s offending.  She submits that Judge Crosbie’s description of the offending as “almost a case of common assault that’s the worst of its kind” (at [19]) does not reflect the appellant’s limited role as a party to that offending.  She submits that the sentencing Judge failed to take into account consistency of sentencing as required by s 8(e) of the Act, and that he failed to apply s 8(g), which requires the imposition of the least restrictive outcome that is appropriate in the circumstances in accordance with the hierarchy of sentences in s 10(A).  She submits that the appellant’s limited involvement in the offence was a mitigating factor required to be taken into account under s 9(2).  She further submits that the sentence imposed was inconsistent with that imposed on Mr Bishop.

[9]       Counsel for the Crown submits that it would be difficult to contend that a nine month term of imprisonment would necessarily attend the detention of the type in issue, if that conduct were viewed in isolation.  The Crown submits however that, as the Judge had found, the appellant’s criminality was broader than that: the violence was serious; it was humiliating to the victim; and administered to a victim who ought to have been able to look to the appellant for protection.  Counsel submits that the appellant’s conduct warranted a custodial response and nothing about her personal circumstances detracts from that proposition.  As to the submission that the Judge misapplied ss 8 and 9 of the Act, counsel for the Crown submits that the Judge was bound to treat her offending, as found by the jury, as involving serious violence, and that the relevant issue on this appeal is not the Judge’s application of sentencing principles, but the length of sentence in the light of the role that the Judge attributed to the appellant.  Counsel acknowledges that the sentence of home detention may well be a live appellate issue.

Discussion

[10]     We consider first the issue of the appropriate form of sentence, having regard to the hierarchy of sentences in s 10A of the Act.

[11]     The pre sentence report had recommended supervision.  The Judge did not accept that recommendation.  We think that the Judge was right in this.  The Judge’s conclusion that the purposes and principles of sentencing could not be met by a sentence that has the appellant remaining in the community was a proper one, having regard to the circumstances of the offending, and of the offender.

[12]     The real question, on the hierarchy issue, is whether home detention or imprisonment was appropriate.  In making that choice, regard must be had to s 8(g) (which requires the Court to impose the least restrictive outcome that is appropriate in the circumstances); s 15A (which sets out the basis for the imposition of a sentence of home detention); and s 16 (which imposes certain restrictions on the imposition of a sentence of imprisonment).  In this case, the Judge expressly considered home detention and did not ask for a report under s 26A of the Act.  The imposition of home detention as a sentence in its own right was considered by a permanent bench of this Court in R v Hill [2008] NZCA 41. The Court considered, at [31] to [41], a number of points relevant in that case to the question whether home detention should be imposed. Two of these points are particularly relevant here. The first is the point made at [33] that the sentence of home detention reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment. The second is that, as stated at [34], a sentence of home detention must be imposed in a way that is consistent with the purposes and principles of sentencing as set out in the Act.

[13]     In this case, the Judge concluded that society’s intolerance of violence against children by people who are meant to keep them safe required a sentence of imprisonment, and that the need for specific and general deterrence and denunciation would be undermined by a sentence of home detention or community detention.  Both of these were conclusions which the Judge was properly able to draw in the circumstances of this case.  We do not consider that any proper basis for disturbing the Judge’s decision as to the appropriate ranking of this case in the sentencing hierarchy has been demonstrated.

[14] That conclusion means that the only sentencing option which requires further consideration on this appeal is that of imprisonment. The issue is whether the term of imprisonment imposed here is manifestly excessive. The Judge has carefully enunciated the relevant factors which have led him to fix the sentence of nine months imprisonment. These incidents involved a series of serious assaults. As stated at [8] above, the Judge described it as “almost a case of common assault that’s the worst of its kind”. We consider that, in respect of the totality of the incidents, the description is well merited. But it is necessary, in considering the appropriate sentence for the appellant, to consider the two aspects:

(a)That she was to be sentenced only in respect of one of the three incidents, namely incident 2; and

(b)That her criminality was to be assessed having regard to her level of involvement as a party in incident 2.

[15]     As to the first of these aspects, the appellant was acquitted on incident 1, and was not charged in respect of incident 3.  Incident 3 was the most serious, as is reflected by the fact that Mr Bishop faced a charge of assault with intent to injure rather than common assault.  The appellant’s failure to intervene in respect of incident 3 did not form part of the charges against her.  As to the second aspect, Mrs Bishop’s only active part in the assault was in handing the binding tape to her husband.  Her involvement as a party in incident 2 beyond that act was essentially passive, providing encouragement by failing to dissuade rather than by active encouragement.  It is necessary also to bear in mind that the Judge accepted that she may well have been scared.  When these two aspects are taken into account, we consider that a sentence of nine months, against a one year maximum, is too high.

[16]     A further factor to be taken into account is relativity with the sentence imposed on the co-offender, Mr Bishop.  On the totality of his offending, as the principal offender in incidents 2 and 3, a starting point of two years was taken.  That must be viewed in relation to the maximum penalty for the assault with intent to injure in incident 3 of three years.  On the assault charges, a sentence of six months was imposed.  While that concurrent sentence cannot of itself be given significant weight, as it was a follow-on sentence with little practical effect on the overall sentence, we are of the view that the nine months imposed on the appellant, relating only to her limited role in incident 2, must be seen as excessive by comparison.

[17]     In these circumstances, we have reached the view that the sentence of nine months was outside the available range, and must be regarded as manifestly excessive.  We would substitute a sentence of four and a half months.

Result

[18]     The appeal is allowed.  The sentence of nine months imprisonment is quashed and a sentence of four and a half months is substituted.  The conditions imposed by the sentencing Judge will continue to apply to that substituted sentence.

Solicitors:           

Aspinall Joel, Dunedin for Appellant
Crown Law Office, Wellington