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…

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 [2008] NZCA 97
Case: [2008] NZCA 97
Decision Date: 24 April 2008

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Barbara Joy Bishop against her nine-month imprisonment sentence imposed by Judge Crosbie in the District Court at Timaru. The appeal concerned charges of assault against her 15-year-old son during a car journey from Geraldine to Dunedin. Bishop was convicted as a party to the assault, specifically for her involvement in the second incident where she provided tape to restrain the victim. The legal issues before the court were whether the sentence was manifestly excessive, whether imprisonment was appropriate, and if the hierarchy of sentences was properly applied. The court found that while the judge was correct in rejecting a non-custodial sentence, the term of imprisonment was excessive. Given the appellant's limited active involvement and her role as a party in the offence, the court substituted a sentence of four and a half months imprisonment.

The Court of Appeal held that the original sentence of nine months was manifestly excessive. The court recognised the serious nature of the assaults but emphasised that Bishop was only charged for her passive role in one incident. The court considered her limited active participation, the potential fear she may have felt, and the relative disparity with the sentence of her co-offender, who received a concurrent six-month sentence for more severe charges. The court substituted a sentence of four and a half months imprisonment, while maintaining the conditions imposed by the sentencing judge. The appeal was allowed, and the original sentence was quashed.

Orders