Bagley v Police - [2024] NZHC 1518

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-67

[2024] NZHC 1518

BETWEEN
DAVID RATA BAGLEY

Appellant

AND

THE POLICE

Respondent

Hearing: 5 June 2024

Appearances:

D J Matthews for the Appellant G L Collett for the Respondent

Judgment:

12 June 2024

JUDGMENT OF ROBINSON J

[Sentence appeal]

Solicitors/Counsel:
D J Matthews, Christchurch Crown Solicitor, Christchurch

BAGLEY v THE POLICE [2024] NZHC 1518 [12 June 2024]

Introduction

[1] On 20 February 2024 Judge MJ Hunt sentenced Mr Bagley to two years and four months’ imprisonment1 on charges of wilful damage,2 threatening to kill,3 assault on a person in a family relationship,4 theft under $500 (x 11),5 theft between $500–
$1,000,6 and breach of release conditions.7

[2] Mr Bagley appeals. He says the sentence was manifestly excessive because the starting point was too high and insufficient credit was given for personal mitigating factors.

Background

[3] Mr Bagley is 43 years old. Between 1998 and July 2023 he accrued 163 convictions, including those that are the subject of the present proceeding. These show a history of dishonest offending including shoplifting. He has previous convictions for threatening to kill and assault on a person in a family relationship in 2020. These resulted in a concurrent sentence of one year and two months’ imprisonment.

[4] Mr Bagley was arrested following family violence related offending on 30 June 2023. He was remanded in custody on 7 July 2023. On 30 October 2023, Judge MJ Callaghan gave a sentencing indication of two years and eight months’ imprisonment.8 Judge Callaghan considered a two-year starting point for threatening to kill (including a six-month uplift for the assault) and a one year starting point for the shoplifting offences were appropriate, giving a total starting point of three years’ imprisonment. The Judge indicated a 20 per cent guilty plea discount with further allowance for personal factors to be considered at sentencing.

1      New Zealand Police v Bagley [2024] NZDC 3664 [sentencing decision].
2      Summary Offences Act 1981, s 11(1)(a). Maximum penalty of 3 months’ imprisonment or fine not exceeding $2,000.
3      Crimes Act 1961, s 306. Maximum penalty of 7 years’ imprisonment.
4      Crimes Act, s 194A. Maximum penalty of 2 years’ imprisonment.
5      Crimes Act, ss 219 and 223(d). Maximum penalty of 3 months’ imprisonment.
6      Crimes Act, ss 219 and 223(c). Maximum penalty of 1 years’ imprisonment.
7      Sentencing Act 2002, s 96(1). Maximum penalty of 1 years’ imprisonment or fine not exceeding
$2,000.
8      In the sentencing indication the Judge included a charge of unlawful taking of a motor vehicle. This charge appears to have been dropped between the time of the sentencing indication and Mr Bagley’s sentencing.

[5] Mr Bagley did not accept the sentencing indication but subsequently pleaded guilty.

Offending

[6] Judge Hunt accurately outlined the offending in regards to the threatening to kill, assault on a person in a family relationship, and wilful damage as follows:

[15] … One o'clock 30 June you called the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bagley v Police

Details

AGLC: Bagley v Police [2024] NZHC 1518
Case: [2024] NZHC 1518
Decision Date: 12 June 2024

CaseChat Overview and Summary

In Bagley v Police, the High Court considered an appeal against sentence by Mr Bagley, who was sentenced to two years and four months’ imprisonment following his convictions for offences including threatening to kill, assault on a person in a family relationship, and theft. Mr Bagley argued that the sentence was manifestly excessive because the starting point was too high and insufficient credit was given for personal mitigating factors. The Court considered the submissions of the parties and the authorities before it and found that while the starting point was not manifestly excessive, there was insufficient credit given for personal mitigating factors. The Court accepted that the evidence about Mr Bagley's history of abuse and his participation in a restorative justice programme warranted a discount of 15 per cent of the starting point. This led to a total sentence of 26 months’ imprisonment. The Court allowed the appeal and reduced the sentence accordingly.

Orders