R v Bishop HC Gisborne CRI-2010-016-2882

[2011] NZHC 886

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2010-016-2882

THE QUEEN

v

EZRADONNA BISHOP

Hearing:         29 July 2011

Counsel:         S Manning for the Crown

A W Clarke on instructions for V Thorpe for the Prisoner

Judgment:      29 July 2011

SENTENCE OF POTTER J

Solicitors:           Crown Solicitor, Gisborne

Copy to:            V Thorpe, Gisborne

R V BISHOP HC GIS CRI-2010-016-2882 29 July 2011

[1]      Ezradonna Bishop: following trial by jury in this Court you were found guilty and convicted of a charge of wilfully attempting to obstruct the course of justice, by attempting to intimidate a witness who was to give evidence in criminal proceedings. That witness was your niece Deborah Tarei.  The maximum penalty for this offence is seven years imprisonment and that will give you a good idea of the seriousness with which this type of offending is regarded by Parliament.

Factual background

[2]      On the afternoon of 1 November 2010 Police arrived at the home of Deborah Tarei to take her to Court to give evidence.  She was due to give evidence in a case which involved allegations of two mongrel mob members seriously assaulting two police officers on Ranfurley Street, Gisborne, the street on which Ms Bishop and Ms Tarei both lived. The accused were known to both women.

[3]      As Ms Tarei was getting into the police vehicle Ms Bishop started yelling out to her from her home across the street.  She asked Ms Tarei if she was going with the police and when Ms Tarei said she was, Ms Bishop yelled out “If you go with them you’re an f...ng nark” and other statements to that effect.  Ms Tarei became visibly shaken and upset.  She went inside to get her partner and both were upset and angry when they returned.   The police officer driving the vehicle to collect Ms Tarei, Detective Wilcox, got out of the vehicle to intervene.  He said he would take care of the situation.   Ms Bishop then stopped yelling out.   Ms Tarei was taken to Court. She gave evidence in Court, but as Mr Manning has noted this morning, she was declared a hostile witness.

[4]      At the trial of Ms Bishop both Ms Bishop and Ms Tarei gave evidence for the defence.   Ms Bishop gave a different account of what she said to Ms Tarei and denied being aggressive.  Clearly the jury did not accept her evidence.

[5]      I have been provided with a pre-sentence report for sentencing purposes.

[6]      Ms Bishop is 36 years old.  She has three children, one of whom lives with her.  She was born and raised in Gisborne and says she has family connections to the mongrel mob.  Ms Bishop has been on an unemployment benefit since November

2010 but prior to that has usually been in some sort of employment or studying.  She is the secretary and treasurer for the Gisborne Tairiwhiti Rugby League Referees Incorporation and says she also helped with establishing the Moana Toa Rugby League Club which has a focus on youth.

[7]      The probation report states that departmental screening tests indicate that Ms Bishop has a harmful pattern of both alcohol and cannabis use over the preceding twelve months.  She advised that she has used both regularly since she was sixteen years old but she has been reducing her alcohol consumption in recent months.

[8]      Ms Bishop has eleven previous convictions but none since 2006 except for a recent conviction for common assault in July this year for which she received a sentence of 120 hours community work.  She has no previous offences relevant to the charge for which she must be sentenced today.  Ms Bishop apparently accepts that she is guilty of the offence but continues to deny her intention in confronting Ms Tarei in the day in question.  She is said to be remorseful for her offending and Mr Clarke her counsel has confirmed in Court today that is so.  She is assessed by the probation service as being of low risk of re-offending.  She has complied with all previous sentences imposed upon her.

Purposes and principles of sentencing

[9]      Denunciation and deterrence are the foremost principles in sentencing for this type of offending. The Court of Appeal said in R v Hillman1

1      R v Hillman [2005] 2 NZLR 681.

Any attempt to dissuade a witness from giving evidence strikes at the administration  of  justice  and  must  be  met  by  the  Courts  with  a  stern response.2

[10]     This is serious offending.  It is routinely met with a custodial sentence, but the Court must seek to impose the least restrictive outcome that is appropriate in the circumstances.

Authorities

[11]     I have referred to a number of cases.  In the case of Hillman from which I have just cited, the offender attempted to persuade the complainant, his girlfriend, to withdraw her complaint made to the police of an assault by another offender who was in the same local gang as Mr Hillman.  On two occasions he had walked towards his girlfriend and sworn at her in a manner which caused her to walk backwards and to feel scared.  There was an element of premeditation in Mr Hillman’s offending. An  appeal  against  a  sentence  of  three  years  imprisonment  was  allowed  and  a sentence of eighteen months imprisonment was substituted.

[12]     Cases such as R v Ormsby,3  R v Laugalis4  and R v Moniker5  have seen sentences of two and half to three years imprisonment imposed for more serious offending where direct and indirect threats to witnesses and jurors have occurred.

[13]     A number of cases such as R v Churchward,6  R v Barratt7  and Rakete v Police8   have  involved  some  form  of  premeditation,  rather  than  a  spontaneous outburst such as occurred in this case.   In those cases starting points of twelve to eighteen months imprisonment have been adopted.  R v Dawson9 is an example of a case where a spontaneous outburst was made.  It was made in Court in an attempt to

dissuade a witness from giving evidence and was described by the Judge as an action

2 At [6].

3      R v Ormsby CA80/79, 4 September 1979.

4      R v Laugalis CA277/83, 3 May 1984.

5      R v Monika CA139/90, 20 November 1990.

6      R v Churchward CA439/05, 2 March 2006.

7      R v Barratt CA164/01, 27 August 2001.

8      Rakete v Police HC Auckland CRI-2009-404-179, 21 August 2009.

9      R v Dawson HC Rotorua CRI-2009-087-2532, 25 February 2011.

“not as deliberate” as in other cases. A starting point of twelve months imprisonment

was adopted.

Submissions

[14]     The Crown submits that while Ms Bishop’s attempt to pervert the course of justice by intimidating Ms Tarei was not premeditated, it was “brazen” in front of a police officer, and that while it cannot be determined whether or not the intimidation affected the evidence subsequently given by Ms Tarei, clearly on the facts it personally affected her.  As I have noted, the Judge at the trial where Ms Tarei gave evidence declared her a hostile witness.

[15]     The Crown submits that a starting point in the vicinity of twelve months imprisonment is appropriate in this case, and that there are no aggravating or mitigating factors relating to the offending or Ms Bishop personally to justify an adjustment to the starting point.

[16]     The  Crown  opposes  a  sentence  of  home  detention,  emphasising  that deterrence is generally important and of importance in this particular community in which, as counsel expressed it in written submissions, “co-operation with the authorities is not considered a virtue”.  The Crown submits it is important to send a message to members of this community that they have no right to interfere with the administration of justice and attempts to do so will be met with a stern response.

[17]     Counsel for Ms Bishop, while acknowledging that a custodial sentence for this type of offending would usually be expected, submits that a community based sentence could be considered by the Court.  Counsel notes that the comments made by Ms Bishop were made without forethought and without any significant malice, and that no threats were made.

Sentencing

[18]     I consider an appropriate starting point for this offending to be ten months imprisonment.   This starting point by comparison with other relevant sentencing

authorities, reflects that this was a spontaneous outburst on a single occasion and did not involve any threats, nor was there any apparent premeditation.  Those factors in my view make the offending in this case less serious than in both Churchward and Dawson where starting points of twelve months imprisonment were considered appropriate.

[19]     To take account of Ms Bishop’s remorse, and also the insight she shows in relation to her offending (acknowledging to the probation officer that poor decision making  has  been  a  contributing  factor  to  her  offending),  together  with  her community involvement which is to be encouraged, I allow a discount of one month. The final sentence is therefore nine months imprisonment.

Home detention

[20]     The sentence reached is a short term of imprisonment.   I therefore turn to consider home detention.   Ms Bishop has provided two potential home detention addresses but neither has been found suitable for the reasons detailed in the home detention appendix to the pre-sentence report.

[21]     Mr Clarke indicates that Ms Bishop has the opportunity to take a tenancy in order to provide a further address, suitable for a sentence of home detention. A letter has  been  provided  this  morning  regarding  the  availability  of  a  tenancy  at  609

Childers Road, Gisborne.  However, I note the reservation in the appendix to the pre- sentence report that because of her on-going association with the mongrel mob in Gisborne Ms Bishop’s suitability for an electronically monitored sentence is questionable.  The Crown, as I have said, opposes home detention on the grounds that it would not provide a sufficient message of deterrence.

[22]     I do not rule out home detention as an appropriate sentence.   It ranks next after imprisonment in the hierarchy of sentences.  It is not a soft option and it carries a strong message of denunciation and deterrence, not only to the offender but generally.

[23]     I therefore make an order under s 80I of the Sentencing Act 2002 granting Ms Bishop leave to apply to this Court for cancellation of the sentence of imprisonment and substitution of a sentence of home detention, if Ms Bishop provides an address at a later date which is found to be suitable for home detention.

[24]     In making this order, I caution you Ms Bishop that you should make no assumption that such an application would necessarily be successful.   The Court would need to take into account all relevant circumstances, including the suitability of the address and you for an electronically monitored sentence at that address, and the nature and likely effectiveness of any conditions that would apply on a sentence of home detention to be served at the proposed address.

Result

[25]     Please stand Ms Bishop.

[26]     The sentence imposed on you is nine months imprisonment. [27]      Please stand down.