LOWTHER v NEW ZEALAND POLICE [2023] NZHC 296

LOWTHER v NEW ZEALAND POLICE [2023] NZHC 296 [24 February 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-145[2023] NZHC 296BETWEEN MARC WILLIAM LOWTHERAppellantAND NEW ZEALAND POLICERespondentHearing: 23 February 2023Appearances: Appellant in personG E R Alloway for RespondentJudgment: 24 February 2023Reissued: 24 October 2023JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 24 February 2023 at 11.45 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] The appellant, who prefers to be known as Mr Bishop,1 was sentenced in theDistrict Court on 22 November 2018 to 12 months' supervision in relation to breachinga protection order.2 Mr Bishop's notice of appeal, filed on 23 September 2022, recordshe is appealing against the sentencing decision. However, some of the submissionsfiled in support of the appeal suggests he takes issue with the conviction, and I treatthe appeal as one against both conviction and sentence.Facts of the offending[2] In July 2015, a final protection order was served on Mr Bishop in favour of[redacted].[3] In July 2018, Mr Bishop telephoned [the protected person] and left an abusivemessage before sending a large number of abusive, threatening, and offensive textmessages.[4] Mr Bishop pleaded guilty to the breach of the protection order and wassentenced by Judge Saunders.District Court decision[5] At sentencing, the Judge clearly had considerable information about Mr Bishopbefore him. The pre-sentence report detailed Mr Bishop's background, including theserious head injuries he sustained from accidents he suffered at the age of six and theage of eight. The report also explained that his father obtained custody of him whenhis parents separated when he was 11. That was the start of a very unhappy period ofhis life. Mr Bishop told the report writer he was sexually abused by an employee ofhis father, was not able to see his mother or his siblings for approximately five years,and then was convicted on two counts of indecent assault. The report explained thatMr Bishop has little respect for his father and blamed him for all his misfortunes. Asentence of supervision was recommended.1 And accordingly I will refer to him as Mr Bishop in this judgment.2 New Zealand Police v Lowther [2022] NZDC 27652.[6] The Judge clearly was alive to Mr Bishop's difficult and complex background,and he expressed his sympathy for Mr Bishop's circumstances. He explained that thesentence he was imposing was "purely to assist you" in rehabilitation, saying, " wecannot rewrite the past. But we can try and provide some positive ways forward foryou in the future". It was for that reason he sentenced Mr Bishop to 12 months'intensive supervision.[7] It appears that Corrections subsequently applied to review the sentence,because he was unwilling to participate in a Stopping Violence Services programme.However, that coincided with Mr Bishop relocating to the Waikato to support his illmother, and it seems the application was withdrawn.[8] Mr Bishop filed written submissions, but it was difficult to discern whatrelevance they had to the appeal. Some pages were dedicated to physics equations, asubject Mr Bishop clearly has an affinity for, and others detailed his childhood history,including the accidents which caused his head injury, the medical treatment whichfollowed, and the grievances he had about his upbringing with his father. Mr Bishopalso takes issue with his convictions for indecent assault.Leave to appeal out of time[9] The appeal is filed more than four years out of time.3 I must therefore considerwhether leave should be granted to file the appeal allowing the appeal to be heard.[10] Mr Bishop explained the lengthy delay by saying that he has been looking afterhis ill mother. He said she was diagnosed with a terminal cardio-respiratory diseasewhich was why he moved to the Waikato to look after her during his sentence ofintensive supervision. Mr Bishop says she then broke her shoulder, and shesubsequently broke her back. He was caring for her throughout this time. I accept, inthose circumstances, and without the assistance of a lawyer, the delay is reasonablyexplained.3 Criminal Procedure Act 2011, ss 231 and 248.[11] However, before granting leave to appeal out of time, I must also consider themerits of the appeal. In that regard, the basis of the appeal was not evident from thewritten submissions filed. When I discussed the basis of the appeal with Mr Bishop,it was clear that his grievance was not with either the conviction or the sentence, butwith events which had happened prior to that which have adversely shaped his life.[12] The conviction was entered following Mr Bishop's guilty plea, and heconfirmed to me that he did commit the offence of breaching the protection order bysending the abusive messages to [the protected person]. Indeed, he said to me that asfar as this case goes: "I pleaded guilty because absolutely I did do it".[13] He also acknowledged that the sentence was appropriate, saying the sentencewas "good for me". In those circumstances, there is no discernible basis for allowingthe appeal against either conviction or sentence. No miscarriage of justice has arisen.[14] I apprehend that the real miscarriage of justice in Mr Bishop's eyes arises outof his treatment as a child and the fact he was taken away from a "good safeenvironment" with his mother and then exposed to events which adversely shaped hislife. He is particularly aggrieved by his convictions for indecent assault, saying theyhave hampered him in his adult life. However, as I explained, I had no jurisdiction torevisit those matters on an appeal in respect of an entirely different conviction.Conclusion[15] For the above reasons, the appeal has no merit. Accordingly, leave to appealout of time is declined.Solicitors:Raymond Donnelly & Co., ChristchurchCopy To:Appellant