R v Bush HC Auckland CRI-2010-004-16484 [2011] NZHC 1838 (24 November 2011)

Last Updated: 15 January 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2010-004-16484}

THE QUEEN

v

ASHLEIGH MARIE BUSH AND MARTIN CHARLES BUSH

Hearing: 24 November 2011

Counsel: K Glubb for the Crown

M Pecotic for A Bush

R Kee for M Bush

Judgment: 24 November 2011

_{SENTENCING OF WOODHOUSE J}

Solicitors / Counsel:

Mr K Glubb, Meredith Connell, Office of the Crown Solicitor, Auckland

Ms M Pecotic, Barrister, Auckland

Mr R Kee, Barrister, Auckland

Mr K McDonald (for M Bush), Kevin McDonald & Associates, Solicitors, Takapuna, Auckland

R V BUSH AND BUSH HC AK CRI-2010-004-16484 24 November 2011

[1] You may remain seated. I needed to explain, not just to you but to others, the sentence I am going to impose. And that includes an outline of the facts.

[2] You pleaded guilty to charges of being an accessory after the fact to assault with a weapon. You are now to be sentenced. And the maximum penalty for this offence is two-and-a-half years imprisonment. But I must say, in relation to that, that there can be very wide variations in the sentences that are imposed.

Background facts

[3] The essence of your offences is that you assisted Martin Olley to avoid arrest. On 11 September 2010 at Eden Park Lodge there was an argument between Olley and John Chambers in the early hours of the morning. It ended at about 3:30 am when Olley stabbed John Chambers and Olley then fled.

[4] The first assistance came from you Martin Bush. You got a text from Olley asking to be picked up. You organised a car, driven by another person. You picked Olley up in town at about 4:50 am. In the car he told you he had stabbed somebody. You knew that at that point. He claimed this was in self-defence. You say that you and the driver urged Olley to turn himself in but Olley wanted to speak to your sister, Ashleigh Bush.

[5] You say that you agreed to arrange this because of Olley’s mental state; you thought he might harm himself. And, as I have already indicated, I give you the benefit of the doubt in accepting that that was at least part of your motivation.

[6] You dropped him off in Rothesay Bay at about 5:30 am. And it is relevant that that was your last physical contact with him. But you did contact your sister who then joined Olley sometime in the middle of the morning and you later warned Olley to turn his mobile phone off. And I do not accept, as I have already indicated, that this was done to protect him from bad news. He already knew what the bad news was in broad terms.

[7] The following Thursday – 16 September – you voluntarily surrendered yourself to Police. And I do accept Mr Bush that you do recognise the relative seriousness of what you have done. And you have indicated to me that you do.

[8] Ashleigh Bush, you were phoned by a police officer during the morning of 11

September and you were told that Olley was wanted for murder. You told the officer that you had dropped Olley off in Glenfield. In fact he was with you – or he joined you soon after. You collected him from Browns Bay. You took him to your own home, then early on Sunday, 12 September, you took him to the home of a friend on the North Shore.

[9] Olley was arrested at this house on Sunday afternoon and you and he had been drinking heavily.

Personal circumstances

[10] Martin Bush, you are aged 32. You have some previous convictions. None of these is relevant to the matter I have to deal with, except that you get no credit for a good record. I have noted the other matters in Mr Kee’s submissions on your behalf about your background and I also note that you have been on bail on curfew for around 14 months. And that is something I can take into account.

[11] Ms Bush, you are aged 24. I have read the pre-sentence report relating to your sentencing in the North Shore District Court on 30 August of this year. I have taken account of the relevant matters in that report. In particular you – according to that report, and confirmed by your counsel – have a significant alcohol problem.

[12] You have a number of previous convictions. But, as with your brother, none is relevant in the sense of requiring an increase in your sentence. The sentences imposed on you on 30 August this year were for serious offences but they occurred after this one – that is to say, the offence I am dealing with. What those subsequent offences do indicate – coupled with your alcohol problem – is the need for supervision.

[13] You are to be sentenced for being accessories after the fact to assault with a weapon. I say that to compare that with the original charge. You are not accessories after the fact to murder or to manslaughter. The Crown does not contend that there should be a custodial sentence. The written submission was that a substantial period of community work should be imposed. I agree that a non-custodial sentence is appropriate. Having regard to the relevant provisions of the Sentencing Act, sentences in other cases and the matters that I have outlined, your actions did not have any bearing on Olley’s crime. Your actions were criminal. And I have already emphasised – they are seriously criminal acts. But they have to be put into context. They did not have any real impact on police investigations. And they did not significantly complicate the arrest of Olley.

[14] Sentences of community work are appropriate, except – as I have already indicated – you Ashleigh Bush also require a sentence of supervision because of your alcohol problem. Were I not imposing a sentence of supervision on you – which is a criminal penalty in itself – I would have imposed a longer sentence of community work because I do consider that your offending was more culpable than that of your brother.

[15] There was a submission for Mr Bush that 50 hours community work is sufficient for you Mr Bush. And I do not agree with that, as I have already indicated.

Formal sentence

[16] You should both now stand.

[17] Martin Bush, you are sentenced to community work of 150 hours.

[18] Ashleigh Bush, you are also sentenced to community work of 150 hours. You are further sentenced to supervision for 12 months. The sentence of supervision is subject to special conditions which are as follows – and these were conditions recommended in the pre-sentence report for the earlier sentencing:

(a) Firstly, you are to attend an assessment for alcohol abuse within four weeks.

(b) You are to attend and complete an appropriate alcohol programme, if and as recommended by the assessment, to the satisfaction of your probation officer and the programme provider. Details of the appropriate programme are to be determined by your probation officer.

(c) You are to undertake and complete appropriate treatment and counselling to the satisfaction of the probation officer and treatment provider. The details of the treatment or counselling are to be determined by your probation officer.

[19] The responsible probation officer has leave to apply to vary those conditions to the extent that may be required having regard to the release conditions that were earlier imposed.

_{[20] You should both now stand down.}

Woodhouse J