Bagley v The King - [2024] NZCA 646

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA444/2024
[2024] NZCA 646

BETWEEN	DAVID RATA BAGLEY Applicant
AND	THE KING Respondent

Court:	Cooke, Fitzgerald and Jagose JJ
Counsel:	D J Matthews for Appellant J E Mildenhall and T Zhang for Respondent
Judgment: (On the papers)	9 December 2024 at 10.30 am

JUDGMENT OF THE COURT

AThe application for leave to adduce fresh evidence is granted.
B The application for leave to bring a second appeal against sentence is declined.

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REASONS OF THE COURT

(Given by Fitzgerald J)

On 20 February 2024, Judge M J Hunt sentenced Mr Bagley to two years and four months’ imprisonment on a number of charges, including wilful damage, threatening to kill, assault on a person in a family relationship, and 11 charges of theft under $500.[1] Mr Bagley subsequently appealed against his sentence to the High Court, and Robinson J allowed the appeal, reducing the sentence to two years and two months’ imprisonment.[2] The appeal was allowed on the basis that an additional discount ought to be given to reflect Mr Bagley’s time in state care, which Robinson J accepted had causatively contributed to Mr Bagley’s history of offending.[3]
[1]Police v Bagley [2024] NZDC 3664 [District Court judgment].
[2]Bagley v Police [2024] NZHC 1518 [High Court judgment].
[3]At [43]–[45], and [51].
In the High Court, Mr Bagley raised a new matter not raised in the District Court, namely that a further discount ought to be given to reflect the impact of his imprisonment on his children. Mr Bagley and his partner are parents to 11 children, aged between 18 months and 17 years of age. Having considered the materials before him relevant to that issue, Robinson J declined to give any further discount.
Mr Bagley now seeks leave to bring a second appeal, on the basis that a discount for the impact of his imprisonment on his children should have been given. A second appeal may be brought by leave of the second appeal court only if the court is satisfied that:[4]
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[4]Criminal Procedure Act 2011, s 253(3).
In McAllister v R, this Court confirmed that the threshold for leave to be granted is high.[5]
[5]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36]–[38].
Mr Matthews, counsel for Mr Bagley, confirms that it is not suggested that the proposed appeal gives rise to a matter of general or public importance. Rather, he says that a miscarriage of justice may arise if the appeal is not heard, given if the appeal is allowed and Mr Bagley’s sentence is reduced to one of two years’ imprisonment, this would result in a short sentence of imprisonment. This would lead to Mr Bagley’s immediate release, given he has already served more than one year in custody. As matters…

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 The King

Details

AGLC: Bagley v The King [2024] NZCA 646
Case: [2024] NZCA 646
Decision Date: 9 December 2024 at 10.30 am

CaseChat Overview and Summary

Bagley, the appellant, applied for leave to adduce fresh evidence and to bring a second appeal against his sentence. The appeal was heard by Cooke, Fitzgerald and Jagose JJ in the Court of Appeal of New Zealand. The central issue was whether Bagley was entitled to an additional discount for the impact of his incarceration on his children, which had not been considered by the High Court. The court considered whether this was a matter of general or public importance, or if a miscarriage of justice may have occurred.

The court found that the fresh evidence regarding Bagley's transfer to the Otago Corrections Facility was admissible. However, the court was not persuaded that a miscarriage of justice would occur if leave to bring a second appeal was not granted. The judge had already considered the impact of Bagley's incarceration on his children and had declined to give an additional discount. The court found that there was no evidence to suggest that Bagley had played a primary or constant caregiving role in his children's lives, and that the children's mother had been the primary caregiver.

The court concluded that the case did not meet the high threshold for granting leave to bring a second appeal. The application for leave to adduce fresh evidence was granted, but the application for leave to bring a second appeal was declined.

Orders