R v Bishop [2012] NZHC 2765 (18 October 2012)

Last Updated: 6 November 2012

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-070-001655 [2012] NZHC 2765

THE QUEEN

v

DILLON MICHAEL ROSS BISHOP

Hearing: 18 October 2012

Counsel: R Ronayne for the Crown

AC Balme for the prisoner

Judgment: 18 October 2012

JUDGMENT OF ASHER J (Disputed fact hearing)

Solicitors/Counsel:

Crown Solicitor, DX HP 40041, Tauranga. Email: [e-mail]

AC Balme, PO Box 13079, Tauranga 3141. Email: [e-mail]

R V BISHOP HC ROT CRI-2012-070-001655 [18 October 2012]

[1] Dillon Bishop appears before me today for sentence. As a preliminary matter it has been necessary to have a disputed fact hearing. The charge is manslaughter. The particulars of the unlawful acts being dangerous driving or the omission without lawful excuse to observe the duty when in control of a motor vehicle to take reasonable precautions to use reasonable care to avoid danger to human life. Mr Bishop has pleaded guilty to this count.

[2] The issue is the exact circumstances of the slide of his motor vehicle which led to the fatal impact with David Armstrong.

[3] Given that I must complete sentencing today I will not set out the full background circumstances and simply focus on the driving that took place in Mr Bishop’s admittedly illegal and dangerous motor vehicle once he left a roundabout and shortly before the loss of control and collision took place.

[4] The Crown puts forward as aggravating factors relevant to culpability in the sentencing process that there were in fact two losses of control. The first, which was a slide which Mr Bishop brought under control, and then another acceleration and a second slide which he did not bring under control and which led to the fatal impact. The Crown must prove these under s 24(2)(c) of the Sentencing Act 2002.

[5] The summary of facts asserts two slides and this was based on the statement of the passenger in Mr Bishop’s car, a Mr Matthew Thorpe. In his formal written statement he asserted:

We then drove through the next roundabout and he was driving normal again.

Dillon then opened it up about 100 metres after the roundabout.

When I mean he opened it up I mean that Dillon changed down a gear or two and put the throttle down.

I have no idea what speed he was going then.

When Dillon put the throttle down he got a bit loose and then got it straight again.

Once he got it straight again he changed up a gear.

When I say loose I mean that the back end of the car was going out towards the centre line.

From where I was sitting in the passenger seat I could feel the back end of the car moving out.

I saw there were two cyclists up ahead of us riding on the same side of the road as we were travelling.

When Dillon changed up a gear he put his foot down on the throttle again and the car started to step out straight away again.

When I say stepped out I mean it started to fish tail again. Dillon took his foot off the throttle ...

[6] In his evidence Mr Thorpe in essence confirmed this account. He was cross- examined by Mr Balme and conceded that he was hung over from a heavy drinking session the night before and after a leading question that he might not be sure as to whether there were one or two slides. However, the general tenor of his evidence when re-examined and when I asked him a further question was that he considered there were two slides.

[7] Mr Bishop gave evidence denying that there were two slides. He asserted that there was just one and could offer no explanation as to why the car moved into a slide. Effectively his explanation was that it was a totally unforeseen and unexpected development. He could offer no explanation as to what could have caused this, either in his driving or in terms of the mechanics of the car.

[8] There is no corroborative material in relation to the two slides. However, it is necessary for me to say a little more about the background. I am satisfied from remarks made to the probation officer and the general circumstances that Mr Bishop was out to see and to show what the car could do. It is significant that he had sought out a long stretch of relatively empty open road which he intended to go down to the end of it and return. This background is consistent with him being prepared to push the car and more than once.

[9] Mr Thorpe was certainly at the time of the accident a friend of Mr Bishop. I considered him a truthful witness. While under pressure he agreed that he might have some uncertainty. On an overview of his evidence, confirmed as it is by the

statement made shortly after the accident, I have no doubt that his account of events is correct. There were two slides and I do not accept Mr Bishop’s evidence to the contrary.

[10] It is now necessary to consider a related matter, which is whether the loss of control was intention or an accident and unintended.

[11] Mr Bishop in his evidence asserted as I have said an unexplained accident. Mr Thorpe did not give any evidence directly on this element of intention or deliberate action in terms of engendering the slide, although he did give evidence consistent with that of Mr Bishop about a quick acceleration from the roundabout.

[12] I look at the matter in the round. It is difficult to see any point in driving such a grossly illegal motor vehicle on the road and seeking out a stretch of relatively empty open road unless it was to see what the car would do. I have found that immediately after going into one slide, he was prepared to engage in another. That is to me a very clear signal that these slides were deliberate.

[13] Obviously there was no intention on Mr Bishop’s part to slide off the road, or entirely lose control, but he was as he accelerated hard from the roundabout testing and showing the limits of the car, and so when he changed gear and accelerated for the second time I do not think a small slide was either unexpected or unwelcome. I will sentence on that basis.

...................................

Asher J