R v Bishell [2014] NZHC 3130 (9 December 2014)

Last Updated: 18 December 2014

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-043-1231 [2014] NZHC 3130

THE QUEEN

v

_{KEVIN RONALD BISHELL}

Hearing:	9 December 2014
Counsel:	C E Clarke for Crown C P Brosnahan and J M Woodcock for defendant
Sentence:	9 December 2014

_{SENTENCING NOTES OF DOBSON J}

[1] Mr Bishell, I now have to sentence you on the three convictions for offences to which you have pleaded guilty.

[2] For the sake of the media, I should explain I gave Mr Bishell a sentence indication that he requested yesterday. That inevitably required me to go through the sequence of considerations that would apply on sentencing. So he has heard most of what I am now going to say before. But it is appropriate, in formally sentencing Mr Bishell, to go through the sequence and of course I will also provide the context for the convictions.

[3] The first in time and most serious of the charges was the one for the aggravated robbery on Christmas Eve 2012. You and your co-offender, Adam Morehu, travelled to the Treehouse Bar in New Plymouth on your motorbike just after midnight. Shortly after 1 am, when the patrons had all left and employees were

_{getting ready to lock up and leave the premises, Mr Morehu accosted one of the}

R v BISHELL [2014] NZHC 3130 [9 December 2014]

employees, pointing a cut-down rifle at the employee and forced him to take him inside. You followed along behind. Once inside, Mr Morehu directed two employees to lie down on the floor and forced the third, the manager on duty that night, to take him to the office and open the safe from which about $7,000 in cash was removed.

[4] For your part, you forced entry to an empty till in the bar, and after the cash from the safe was taken, you both left the scene on your motorbike.

[5] A little more than five months later, on 8 June 2013, you participated with Mr Morehu in the burglary of two New Plymouth premises. At about 2.50 am that morning, you both forced entry to the Chipmunks Playland and Café, smashing fixtures at the premises and ransacking them in search of valuable items to take.

[6] Shortly after that, you burgled various parts of the premises at the New Plymouth Golf Club, causing damage to a number of locked entrances and to the till in the bar area of the golf club. You made off with a cheque book, 10 pairs of sunglasses, some liquor and several hundred dollars in cash, as well as other miscellaneous items.

[7] Because a silent alarm had been triggered during the break in, a Police dog handler and dog arrived at the club before you could make good your escape. Again, you had arrived on a motorbike. In the course of a confrontation between the Police officer and both of you, Mr Morehu produced a shortened-barrel weapon, threatening to shoot the officer, and carried through with the threat to fire at him. The officer was not hit but armed Police responding to the situation shot Mr Morehu at the scene and he died.

[8] In both the December 2012 aggravated robbery and the June 2013 burglaries, you and Mr Morehu were both dressed in full face motor cycle helmets and, at least in your case, a black leather motor cycle jacket. The helmets made it practically impossible to make a positive identification of your faces.

[9] At a relatively early stage after being charged with the burglaries, you entered guilty pleas to them. However, you pleaded not guilty to the aggravated robbery until yesterday, which was scheduled as the first day of your trial on that charge. You asked for a sentence indication, and changed your plea on the aggravated robbery charge to one of guilty after accepting the sentence indication I gave to you.

[10] Having reflected further on all the considerations relevant to sentencing you, I can proceed with the sentencing in accordance with the indication I gave you yesterday. It is necessary to go through the analysis, most of which I addressed with you then.

[11] As I covered with you yesterday, the aggravated robbery is the most serious and appropriately becomes the lead conviction in setting a starting point for your sentence. By reference to the range of factors affecting the length of a prison sentence for aggravated robbery as set out by the Court of Appeal in R v Mako,¹ starting points for aggravated robbery including the features of the offending at the Treehouse Bar would generally attract starting points between six and eight years. On any view, this is serious offending where entirely innocent victims who had no connection with you were confronted by the extremely frightening and potentially

life-changing experience of demands made by a masked man wielding a lethal firearm. You may not have had a chance to reflect in any great detail, Mr Bishell, on the victim impact statements that we have received this morning, but I urge you to do so. They show that all three of those employees were emotionally scarred and they remain jumpy and on edge. The manager, who was the man man-handled by your co-offender and forced to open the safe had to take time off from work and was still not right when he returned.

[12] Mr Morehu’s conduct in pointing the gun at employees to enforce demands

made of them inevitably warrants a stern sentencing response.

[13] However, the Crown has accepted Mr Brosnahan’s argument on your behalf that your involvement should be distinguished from Mr Morehu, and you are to be treated as a less serious offender. Ms Clarke put it that you were “a tag along” in all

of the offending and that is justified on the very different impressions that you and Mr Morehu left on the employees at the Treehouse who were confronted by you. He was the prime mover, and in relative terms you were a less threatening presence in the robbery as it was happening.

[14] It is not known whether the weapon was loaded. Certainly it was not used and there was no other violence. No members of the public as such were confronted with the armed demands, and if one reflects on the offending and the subsequent two burglaries, there is scope for suggesting that you intended to burgle rather than to rob, in that you might have expected after 1 am in the morning that no one would be left at the Treehouse Bar.

[15] For all those reasons, counsel were agreed that a five year starting point for the aggravated robbery conviction was appropriate and I have also agreed with that.

[16] Although the features of aggravated robbery offending as listed in R v Mako help with a starting point, finding the appropriate starting point should also reflect the starting points that were settled on in similar cases. One comparable sentencing that has been approved by the Court of Appeal is R v Anderson.² There, a single armed robber with a pipe wrench and in disguise robbed a TAB in Te Rapa. The threat was with a less lethal weapon, but the elderly cashier confronted by that

robber was more vulnerable than the three employees confronted by you and Mr Morehu. Your offending is more serious when there were two of you rather than just one robber, but these factors more or less cancel each other out so that the five year starting point approved by the Court of Appeal in R v Anderson confirms the appropriateness of the starting point counsel have agreed in your case.

[17] Now, as I indicated to you yesterday, the next stage is to address what length of time should be added to the five year starting point for the aggravated robbery, to take account of the convictions for the two burglaries. This is done on the basis that you will serve sentences on each conviction at the same time, rather than one after another. The burglaries were of commercial premises, and in each case you trashed the premises, doing physical damage to them, and in the case of the golf club taking

items of some value. The Crown accepts that you may not have been aware that Mr Morehu was carrying a weapon on that night, given that he was able to conceal it until confronted by the Police officer at the golf club. If I was sentencing you just on those burglaries, then you would receive a prison sentence, particularly in light of your previous convictions, that would certainly be longer than one year.

[18] When sentencing you for a range of convictions, the Court has to take into account what is called the totality principle. In the present circumstances, the Crown has submitted that an uplift of one year is sufficient. The totality principle requires me to be satisfied that the total starting point for all the convictions – in this case we get to six years – reflects the overall criminality in all your offending and I am satisfied that it does.

[19] The next stage is to consider mitigating circumstances in your favour that might justify a reduction from that starting point. Having reflected on the sequence of considerations I ran through in the sentencing indication yesterday, I remain comfortable that they are appropriate, so I will go through them again.

[20] I have carefully considered the pre-sentence report that was dated

2 December 2014 and provided, at that stage, for your sentencing just on the two burglary convictions. It reveals, as Mr Brosnahan put it yesterday, that you have had something of a tough earlier life. There has been something of a pattern of relatively minor offending, potentially contributed to by negative influences of those you have associated with, and persistent use of illicit drugs. There is nothing in the pre- sentence report that would justify a reduction in the sentence to reflect particular personal circumstances. I note that the report writer recommends release conditions to address as best as possible your rehabilitative needs in terms of drug use.

[21] I cannot give you any separate credit for having been led by your associate because your lesser part in the offending is already reflected in analysing the starting point. So there remains the prospect of discounts for two factors. First, the time you have spent on electronically monitored (EM) bail and secondly a discount for what is a late guilty plea on the robbery conviction.

[22] As to the time spent on EM bail, s 9(2)(h) of the Sentencing Act 2002 requires it to be considered and the amount of any credit is at the sentencing judge’s discretion. I am told by Mr Brosnahan, and because Ms Clarke does not dispute it I accept that it is accurate, that you spent eight months on very restricted terms on a

24 hour curfew. There is a Court of Appeal decision in Beckham v R in 2012 that approves a sentencing where eight months on restricted EM bail had resulted in a reduction of six months in the length of the prison sentence.³ Beckham may not be the most accurate of analogies because the overall sentence there was for more serious offending and was longer. But in proportionate terms, even if it is not the same, I am comfortable it provides an appropriate analogy.

[23] So, the six years is reduced by six months for the time you have spent on

EM bail.

[24] The second mitigating factor is the appropriate discount for your late guilty plea. Mr Brosnahan has urged on me 20 per cent. The maximum is 25 per cent on the Supreme Court guidance in Hessell v R.⁴ The Crown did not stipulate a precise figure but Ms Clarke was not comfortable that it be as high as 20 per cent. Nor am I. The reasons that Mr Brosnahan gave for the 20 per cent are the introduction of fresh counsel and the lack of an earlier opportunity to test the level of seriousness of the offending as alleged by the Crown. I can recognise those as part of the reality of what has been negotiated. But in terms of the lateness of it, that still has to bring it down below 20 per cent. I give you a credit of 15 per cent because it was, in

whatever the remaining circumstances were, late on the first morning of the trial.

[25] The calculation is therefore starting at six years or 72 months. Reducing it by six months for the time spent on EM bail makes six years and six months or

66 months. Applying a discount of 15 per cent produces a final sentence of

56 months or four years and eight months, and that is the sentence I will impose on you.

³ _{Beckham v R [2012] NZCA 603.}

⁴ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[26] There are two residual issues. Arising out of the pre-sentence report is a recommendation that there be release conditions, but given the length of the sentence, I anticipate that is a matter for the Parole Board and there is nothing I can do to aid Mr Bishell on that.

[27] The second is that there has been an offer of reparation, but I have not taken it into account in reaching the sentence level and I do not, with respect, consider it is realistic.

[28] In those circumstances there is nothing more that I need or can do Mr Bishell. The sentence I now impose is four years and eight months on all of the convictions.

[29] Mr Bishell, you may have been warned by your counsel of this. I am obliged to give you a first strike warning. It relates to your conviction for the aggravated robbery. You are now subject to the three strikes law. I am going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which lists the serious violent offences.

[30] So if you are convicted of any serious violent offences other than murder committed after this warning, and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.

[31] If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event, the Judge must sentence you to a minimum term of imprisonment.

_{[32] You may stand down.}

Solicitors:

Crown Solicitor, New Plymouth

Dobson J