Bagley v Police
[2024] NZHC 1518
•12 June 2024
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 victim because you had been in a relationship and were planning on continuing the relationship with your partner, but you called her asking her to pick you up from Hagley Park as you were sleeping rough. She agreed and picked you up. As soon as you got in the car, you yelled abuse at her. Because of the abuse, she stopped the vehicle and told you to get out, which you did.
[16] She returned home. The children said that you had called and were back at Hagley Park, so she went back to the park and searched for you for about an hour as you went at the same time to her address, but obviously without her knowledge. You entered the address as she was looking for you in the park and you threw multiple items around the house, trashing multiple rooms. You went to the landline; you ripped it out of the wall. You put the handset in the toilet. She returned to the address, and you stormed out the front door towards her. You started yelling at her. You made accusations about her. You demanded the car. She refused to do that and tightly gripped the keys. You threatened her. That is the threat to kill. "I'll stab you, give me the fucking keys or I'll stab you."
[17] At this stage, the children came out of the address to try and intervene. She ran away from you. You caught up to her. You grabbed her ponytail, ripped downwards, pulling her off her feet and onto the ground. You held her on the ground, holding her hair tightly with your fist pulling away from her scalp. The children were yelling at you to stop. You let her go and she stood up. You took a step away from her and kicked her once in the right-hand side of her body, and once to the right side of head while she lay on the ground.
[18] She sustained swelling and bruising to the sides of her face and top of her head and abrasions to her forehead. You declined to comment. Reparation is sought for the damage.
[19] There is a victim impact report, Mr Bagley, that talks about those events at the relevant time, and it describes your partner’s feelings. She says she puts up with a lot of stress. She does her best to try and stand by you and protect you. When you hit her, she cannot stand for that, and she has to get help from the police. She says you have violated her trust. She says you do not help with the children; you do not have a job and you contribute nothing to the family. She said she got a job but had to quit because you could not care for the children overnight.
[7] As for the theft-related offending, on 12 separate occasions between 10 February 2023 and 1 July 2023, Mr Bagley shoplifted from different shops in
Christchurch. Many of the thefts were undertaken in the company of Mr Bagley’s long-term on-and-off partner or their children, although he told the author of the PAC report they were unaware of his offending. One of the charges of theft relates to a jacket and beanie with a combined value of $889.99, and the remaining thefts relate to grocery items. The PAC report records that Mr Bagley told the author that his offending arises out of his attempts to provide for his 11 children. That explanation has a ring of truth about it, but of course does not justify the offending.
[8] In relation to the breach of release conditions, Mr Bagley was released from prison on 4 May 2022 subject to six months of release conditions. He was inducted into his conditions. In December 2022 Mr Bagley was arrested and upon release issued with an instruction to report weekly from 22 December 2022 until advised otherwise. Despite attempts to contact Mr Bagley on his last known contact number and a home visit, Mr Bagley failed at the required times. He was charged with breach of release conditions on 26 January 2023. Mr Bagley’s release conditions ended on 3 May 2023.
District Court decision
[9] The Judge adopted a starting point of two years’ imprisonment for the charges of wilful damage, threatening to kill, and assault on a person in a family relationship. The Judge considered this sequence of offending to be “a very serious event of family violence”.9
[10] The Judge imposed an uplift of 10 months to take into account the theft-related offending, and a further uplift of six months for Mr Bagley’s criminal history. Accordingly, the Judge adopted a starting point of three years and four months (40 months).
[11] In terms of personal mitigating factors the Judge granted Mr Bagley a 20 per cent allowance for his guilty plea, noting that this allowance erred on the “generous side” given that the pleas came late.10 The Judge then gave a 10 per cent
9 Sentencing decision, above n 1, at [26].
10 Sentencing decision, above n 1, at [28].
discount for Mr Bagley’s history as recounted in the s 27 (cultural) report and for his participation in restorative justice with his family. Applying the 30 per cent discount to the end starting point of 40 months led to an end sentence of 28 months’ imprisonment.
[12] I note that this methodology has potentially led to an error in Mr Bagley’s favour. In Moses v R11 the Court of Appeal held that the correct methodology is to apply the discount for mitigating personal factors to the starting point before the starting point has been increased to account for personal aggravating factors such as a defendant’s criminal history.12 Applying that methodology to Mr Bagley’s case, the 30 per cent discount for personal mitigating factors should have been applied to the
34 month starting point, but not the six month uplift for Mr Bagley’ previous conviction. This would have resulted in a discount of 10.2 months (34 x 0.3) and led to an end sentence of 29.8 months. Instead, the Judge applied the 30 per cent discount to the “uplifted” 40 month start point, resulting in a 12 month discount and a 28 month end sentence. There is no appeal on this basis, but it is relevant to an overall assessment as to whether the end sentence was manifestly excessive.
[13] The Judge also remitted fines but added reparations as sought by the complainant.
Relevant legal principles
[14] The Court must allow an appeal if it is satisfied that there was an error in the sentence imposed and that a different sentence should be imposed.13 The Court’s focus is on the end sentence. If the process by which a sentencing judge arrives at the end sentence was flawed but the sentence can nonetheless be properly justified by accepted sentencing principles, then the appeal court will not intervene.14 Otherwise the Court must dismiss the appeal.15
11 Moses v R [2020] NZCA 296, [2020] NZLR 583.
12 At [46].
13 Criminal Procedure Act 2011, s 250(2).
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [36].
15 Criminal Procedure Act, s 250(3).
Submissions
[15] For Mr Bagley, Mr Matthews submits that an appropriate sentence is as follows:
(a)an overall starting point of two and a half years (30 months);
(b)20 per cent credit for the guilty plea;
(c)10 per cent credit for cultural factors;
(d)10 per cent credit for participation in restorative justice; and
(e)5 to 10 per cent credit for the impact of incarceration on Mr Bagley’s family.
[16] Mr Matthews does not take issue with the six month uplift for Mr Bagley’s conviction history. Accordingly, he submits that an end sentence in the range of 21 to 23 months’ imprisonment is appropriate. Mr Bagley accepts that a sentence of imprisonment rather than home detention is appropriate.
[17] Ms Collett for the Crown says the appeal should be dismissed. She submits that the starting point was well within range, and any error in the assessment of discounts for factors personal to Mr Bagley does not result in an end sentence that is manifestly unjust.
Starting point
[18] Mr Matthews submits that the two year starting point for the offences of threatening to kill, assault on a person in a family relationship and wilful damage was too high and outside the available range. He relies on a number of authorities in support of his submission that a starting point in the region of 12 to 15 months’ imprisonment is appropriate.16
16 These include: Bonfert v R [2012] NZCA 313; Fraser v Police [2024] NZHC 167; Pathiranage v Police [2013] NZHC 738; and Sands v Police [2021] NZHC 2302.
[19] Mr Matthews does not take issue with the 10 month uplift for the theft-related offending. He responsibly points out that his submission in the District Court was that an uplift of 12 – 15 months’ imprisonment was appropriate to reflect the offending. On appeal he submits that an overall starting point of 24 – 30 months to reflect all the offending was appropriate.
[20] Ms Collett submits that the starting point was lenient, and in any event well within range. She distinguishes the authorities referred to by Mr Matthews and refers to others in support of her submission that the end sentence was lenient.17
Personal mitigating factors
[21] As noted, Judge Hunt gave Mr Bagley credit of 10 per cent to reflect the factors referred to in the s 27 report and Mr Bagley’s participation in a restorative justice conference. Mr Matthews submits that the Judge should have allowed 10 per cent for each of these factors (20 per cent in total); and a further five to 10 per cent to reflect the impact of Mr Bagley’s incarceration upon his family.
(a)Section 27 factors
[22] Mr Matthews seeks leave to adduce fresh evidence in the form of a Statement of Claim Mr Bagley had filed in the High Court in 2015 seeking compensation for various forms of abuse he claimed to have suffered at various times whilst in state care as a teenage boy. Mr Matthews seeks leave to adduce this as evidence on appeal because it was not provided to him until after sentencing had taken place. The Crown does not oppose.
[23] In the circumstances I granted leave to adduce the evidence on appeal. It contained cogent evidence about Mr Bagley’s upbringing, in particular matters that would likely have made a causal contribution to his subsequent pattern of offending. The PAC report (which was before the sentencing judge) refers to Mr Bagley having received “a significant pay out due to the abuse he suffered while in state care”. The Statement of Claim provides the Court with further detail about this.
17 Faaleaga v R [2011] NZCA 495; Auckram v Police [2022] NZHC 1446; and Taniora v Police
[2016] NZHC 2471.
[24] Mr Matthews submits that a discount of 10 per cent is appropriate in recognition of these factors. Ms Collett accepts that a 10 per cent credit on a standalone basis could be warranted, particularly in light of the matters described in the Statement of Claim. Ultimately, though, the Crown submits that the end sentence was not manifestly excessive and the appeal should be dismissed.
(b)Restorative justice
[25] A restorative justice meeting took place between Mr Bagley and the complainant. Mr Bagley was prepared to meet with the victims of his theft offending but they did not wish to do so.
[26] The facilitator’s report of the restorative justice meeting records that Mr Bagley apologised to the complainant, and she accepted the apology. The apology and his expression of regret seem to be genuine. Mr Matthews submits the apology goes beyond a mere expression of remorse. He says it demonstrates that Mr Bagley has taken responsibility for his offending. Mr Bagley has also accepted he and the complainant would benefit from couples counselling. Mr Matthews says a discount of 10 per cent rather than five per cent was appropriate.18
[27] Ms Collett accepts the restorative justice conference was positive for all parties but submits that it should not attract a discount of more than five per cent. She says that Mr Bagley has taken no further steps beyond his apology and expression of remorse. Although Mr Bagley has taken full responsibility for his behaviour, he says he does not want to engage further with anger management courses. He has participated in stopping violence programmes and parenting courses previously, but the restorative justice report records he is not sure these are “the way forward for him”.19 He is reported to have said “at the moment I don’t want to engage with anybody in that way”.
18 Citing Old v R [2023] NZHC 2369.
19 The restorative justice report is dated 18 December 2023.
(c)Impact of incarceration on children
[28] Since Mr Bagley was sentenced on 20 February 2024 the Court of Appeal has issued judgments in C (CA153/2023) v Police20 and Ah Tong v R.21 In C (CA153/2023) v Police the Court of Appeal made clear that “the attitude expressed by judges not so long ago to the effect that an offender should have considered their child before offending is well and truly outdated”.22 Sentencing judges must consider the interests of dependent children during the evaluative exercise involved in all sentencing decisions. Particular attention to the impact of a custodial sentence on the family life of innocent children is required in all cases.23
[29]In Ah Tong the Court of Appeal held:
[13] In assessing the potential for a discount arising because of the effect on dependent children, the focus is on the interests of the children. How an offender’s dependent children are impacted by sentencing is something that should be considered by counsel and brought to the attention of the Court. Those circumstances may warrant a discrete reduction in the term of imprisonment because of the impacts on the child, even if the offender’s own circumstances do not warrant any further discounts.
[30] Mr Matthews refers to letters provided to the Court by the complainant and Mr Bagley’s mother. The complainant explains that she and Mr Bagley have 11 children aged between 18 months and 17 years of age. Mr Matthews submits that Mr Bagley’s family is suffering from his absence. He refers in particular to the complainant’s explanation that Mr Bagley’s imprisonment has taken a “huge toll on [her] as a mother caring for such a large family on [her] own”. She says she needs Mr Bagley home to help with the children.
[31] Ms Collett submits that there is no evidence to suggest that Mr Bagley had been performing his role as a father prior to the offending. She submits that his children are used to his absence, including while he served previous sentences of imprisonment. She says there is no evidence to suggest Mr Bagley’s imprisonment is having an undue impact on his children, beyond what would ordinarily be expected.
20 C (CA153/2023) v Police [2024] NZCA 136 (29 April 2024).
21 Ah Tong v R [2024] NZCA 144. 22 C (CA153/2023) v Police at [27]. 23 At [49].
Analysis
Starting point
[32] There is no tariff judgment concerning the offence of threatening to kill. That is because the circumstances in which such threats are made vary widely.24 It is also often one of a number of charges for which a starting point is set globally. However, the starting point will usually be a sentence of imprisonment. In Pathiranage v Police Whata J noted that cases of domestic violence involving a threat to kill “will usually attract a sentence of imprisonment of nine months to two years. There are cases where the sentence has been less and cases where the sentence has been more”.25
[33] Mr Matthews refers me to the Court of Appeal’s decision in Bonfert v R.26 In that case an argument took place between the offender and the complainant. The offender verbally abused the complainant, pushed her onto a couch, sat on her and threatened to punch her. He put his hands around her neck. Two days later the appellant threatened the complainant with an office chair, threw it on the floor then picked up a knife and said: “I could kill you”. The offender was convicted of male assaults female (x2), assault with a weapon and threatening to kill. The Court of Appeal considered that the appropriate starting point was one of 18 months’ imprisonment to reflect all charges.
[34] Mr Matthews submits that this offending was more serious than Mr Bagley’s offending. He emphasises that the complainant lost consciousness and awoke to the appellant performing CPR – although on the particular facts of that case the jury had acquitted the appellant on the charge of disabling by rendering the complainant unconscious. The Court of Appeal adopted a starting point of 18 months on charges of threatening to kill, male assaults female27 (x2) and assault with a weapon.28
[35] In Fraser v Police29 the offender messaged the victim saying he was at home with an axe in his hand waiting to smash her. The victim arrived home and left after
24 Taylor v Police [2014] NZHC 1139, at [15].
25 Pathiranage v Police, above n 16, at [12].
26 Bonfert v R, above n 16.
27 Crimes Act, s 194(b). Maximum penalty of two years’ imprisonment.
28 Crimes Act, s 202C(1)(a). Maximum penalty of five years’ imprisonment.
29 Fraser v Police, above n 16.
a disagreement. He later returned, advancing on the complainant whilst she was holding their three-year-old child. He said: “you think holding your daughter in front of you will stop me”. He punched the complainant in the forehead and then messaged her threatening to kill her and hide her body. He said he would explain to their children why he killed her and that someone would make a movie about it. A starting point of 20 months’ imprisonment in respect of charges of threatening to kill and assault on a person in a family relationship was described as “stern, but not manifestly excessive”.30
[36] In Taylor v Police31 the offender forced his way into the complainant’s house and pinned her against the washing machine. He screamed at her that she was a nark for going to Police. He told her she needed to leave the Hutt Valley or he would kill her. The complainant had obtained a protection order against the offender just two days previously. Williams J held that the starting point of three years was manifestly excessive and that “an appropriate – even stern – starting point for the threatening to kill count should have been 18 months”.32
[37] Mr Matthews submits that the offending in Taylor was more serious because it involved a home invasion, a breach of a protection order, and the threat was in retribution for going to the Police. Similarly, he refers to Sands v Police33 in which the offender slapped his partner in the face, causing her nose to bleed. She fled to a neighbouring cottage. The offender followed her into the cottage and attempted to prevent one of the neighbours from dialling 111. He grabbed the neighbour by her ankles and began pulling her out of bed. He said to the neighbours “if you call the fucking pigs, I will fucking kill you cunts”. The District Court adopted an overall starting point of 18 months for the threat to kill, the accompanying assault and the male assaults female charge.34 This was not challenged on appeal.
[38] Ms Collett points out that in Taylor the starting point of 18 months was uplifted by three months in respect of the additional charges of common assault and resisting
30 At [40].
31 Taylor v Police, above n 25.
32 At [21].
33 Sands v Police, above n 16.
34 At [10].
Police. She submits that in the present case the assault was more serious and should have attracted a greater uplift in respect of Fraser. Ms Collett also points out that the threats were made via text message, and submits that this was not as serious as in the present case where the threat was made during the course of the physical assault.
[39] Ms Collett also refers to Auckram v Police35 where the appellant pleaded guilty to charges of threatening to kill, assault on a person in a family relationship, wilful damage and burglary. In that case the appellant verbally and physically abused the appellant in her car, striking and punching her arms and kicking her right thigh twice. The appellant retrieved a crowbar and held it above his head. The victim believed that he was going to assault her with it. He later threatened to kidnap her and kill her (including by stabbing her). The High Court considered a starting point of 18 months was within range for the lead offence of threatening to kill, and that an uplift of no more than 18 months’ imprisonment was appropriate for the assault on a person in a family relationship and wilful damage.
[40] A review of these authorities demonstrates why the Court of Appeal has observed that it can be “difficult to discern any consistent pattern in sentences on charges of threatening to kill”.36 However, it is clear that the starting point will be higher when a threat to kill is accompanied by an assault, particularly when that is carried out at home and in a family context.
[41] Having considered all of the authorities I do not consider that the 24 month starting point in respect of the threat to kill, the assault on a person in a family relationship and the wilful damage charge was manifestly excessive.
[42] As noted, Mr Matthews does not challenge the 10 month uplift in respect of the 12 theft charges and the breaches of release conditions. If anything, that uplift was lenient. It follows that I do not accept Mr Matthews’ submission that the overall starting point of 34 months (before the six months uplift for aggravating personal factors) was manifestly excessive.
35 Auckram v Police, above n 17.
36 Faaleaga, above n 17, at [9].
Personal factors
[43] As noted, the sentencing judge allowed Mr Bagley a combined discount of 10 per cent in respect of s 27 factors and his participation in the restorative justice conference. In his notes the Judge acknowledged that Mr Bagley has had challenges arising out of things that have happened to him in his past. The Judge observed that Mr Bagley cannot change those things, and that one of the challenges for him is to change what happens going forward.37
[44] I accept Mr Bagley’s background of observing and suffering abuse at home and whilst in the care of the state has contributed causatively to his history of offending to date. I consider a 10 per cent discount is appropriate to recognise these contributing s 27 factors on a standalone basis. Obviously I make that assessment with the benefit of having read Mr Bagley’s Statement of Claim against the Crown which was not available to the sentencing judge.
[45] I do not consider the Judge erred in granting a notional discount of five per cent in respect of Mr Bagley’s participation in the restorative justice programme. Although Mr Bagley has apologised and accepted responsibility for his offending, he does not wish to take advantage of the various programmes available to him. The s 27 factors referred to above may in part be responsible for that reluctance, but like Judge Hunt I encourage Mr Bagley to take advantage of all the help that is available.
Impact of imprisonment on children
[46] As noted, since Mr Bagley was sentenced the Court of Appeal has made it clear that sentencing courts must consider the impact of incarceration on an offender’s children. Amongst other things, this is consistent with s 8(i) of the Sentencing Act and New Zealand’s international obligations.38
[47] The Judge noted that Mr Bagley has “responsibility for a large number of children, but they are responsibilities to date that you have discharged very well”.39
37 Police v Bagley, above n 1, at [25].
38 C (CA153/2023) v Police, above n 21, at [29] – [32].
39 Police v Bagley, above n 1, at [23].
He also noted that Mr Bagley’s children should not have been exposed to his offending in the way they have.40 He did not go on to consider whether a discount is appropriate to reflect the impact Mr Bagley’s imprisonment would have on his children. As such it is for this Court to consider that for the first time.
[48] Mr Bagley’s mother wrote a letter to the Court advising that his children miss him. She says he is needed in the family home to help them with getting to school and being there for them. For her part, the complainant, in her letter to the Court dated 19 February 2024, says she needs Mr Bagley home to help with the children. She says it is taking a huge toll on her to have to care for such a large family on her own. That is entirely understandable, but to some extent contradictory to her VIS in which she says that she cares for their children whilst Mr Bagley does not help and contributes nothing. At that time, she said Mr Bagley did not have a job, and she had to quit her job because he could not care for the children overnight.
[49] In the intervening period Mr Bagley and the complainant attended the restorative justice conference, as discussed at [28] above. The report of that conference records that the complainant and appellant’s mother (who attended the conference as the complainant’s support person) agreed that the children were doing well, but were missing their dad and wanted him home. The complainant reported that the biggest impact for her had been having to look after the children on her own.
[50] In these circumstances I do not consider that further discount is required to reflect the impact on Mr Bagley’s children of his incarceration. I accept Ms Collett’s submission that Mr Bagley appears to have been less than fully engaged in his parental role prior to his offending. There is no evidence to suggest that his imprisonment is having an undue impact on his children. The Court acknowledges the burden on the complainant, but again the evidence suggests that she has carried out most of the parental responsibilities for some time prior to Mr Bagley’s most current term of imprisonment. I note that the complainant has the support of Mr Bagley’s mother, and they both told the facilitator of the restorative justice conference that the children are doing well.
40 At [22].
Outcome
[51] In respect of the s 27 factors and the restorative justice conference the sentencing judge allowed a combined discount of four months. In recognition of the Statement of Claim available to me but not the sentencing judge, I increase this four month discount by two months, to six months. This is 15 per cent (rather than 10 per cent) of the 40 months starting point described by the sentencing judge, and 17.6 per cent of the 34 months starting point calculated in accordance with Moses v R. This amounts to an additional discount of 7.1 per cent off the end sentence. I do not consider this to be mere “tinkering” because the additional discount is to take into account evidence that was not before the sentencing judge.
Result
[52]The appeal is allowed.
[53]The final paragraph of the Judge’s sentencing notes is as follows:
[33] So 20 months concurrent for the threat, the assault, and the intentional damage, eight months [footnote: Cumulative] but concurrent with the other thefts, but the eight is imposed on the lead charge of 9289. So a total of 28 months, two years, four months.
[54] I quash the concurrent sentences of 20 months and replace them with concurrent sentences of 18 months so that the total sentence is reduced from 28 months to 26 months.
Robinson J
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