Bailey v The Queen
[2017] NZHC 2505
•13 October 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-194 [2017] NZHC 2505
BETWEEN SAMUEL PETER NATHAN BAILEY
Appellant
AND
THE QUEEN Respondent
Hearing: 9 October 2017 Appearances:
M N Pecotic for the Appellant
E J Hoskin for the RespondentJudgment:
13 October 2017
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on Friday 13 October 2017 at 3.00 pm
Pursuant to Rule 11.5 of the High court Rules.
Registrar/Deputy Registrar
Date:…………………………
Counsel/Solicitors:
M N Pecotic, Barrister, Auckland
E J Hoskin, Crown Law, Auckland
BAILEY v THE QUEEN [2017] NZHC 2505 [13 October 2017]
Introduction
[1] The appellant, Samuel Bailey, appeals against conviction and sentence. Following a Judge-alone trial before Judge Pidwell in the District Court, he was convicted1 of unlawfully taking a motor vehicle2 and wounding with intent to facilitate flight.3 The latter was the lead charge on which the Judge sentenced4
Mr Bailey to five years and eight months’ imprisonment. He also received a first strike warning.
Facts
[2] Both charges against the appellant arose out of events occurring in the early hours of 14 April 2016. At around 5.00am on that date, the complainant, Guy Bartlett, awoke to hear someone stealing his Toyota Hilux from outside the house in which he was staying in Dargaville. He ran from the house in his underwear, tried unsuccessfully to stop the Hilux from leaving and, in his partner’s car, followed in the direction he thought the Hilux had gone.
[3] About five minutes’ drive out of Dargaville, Mr Bartlett found the Hilux stationary on a one-lane bridge over a railway. The vehicle’s engine was revving, with smoke billowing from it. Mr Bartlett approached the vehicle. At trial, Mr Bartlett’s evidence was that he had thought the vehicle was unoccupied but he was “smacked in the face” with a weapon as he opened the driver’s door. He remembered being hit only once but the medical evidence was that Mr Bartlett had suffered lacerations to both sides of his head and, in addition, to two other parts of his face, as well as serious bruising to the bridge of his nose and injury to his eye socket or orbit. Mr Bartlett had also been kicked.
[4] Mr Bailey, the appellant, gave evidence at trial. He said that he knew Mr Bartlett from a marijuana deal, that Mr Bartlett owed him money for marijuana plants, and he had taken Mr Bartlett’s Hilux in fulfilment of the debt. He did so by
breaking the vehicle’s ignition and hotwiring the vehicle. He had taken a crescent
1 R v Bailey [2017] NZDC 2775 [Conviction Judgment].
2 Crimes Act 1961, s 226(1), carrying a maximum sentence of seven years’ imprisonment.
3 Crimes Act 1961, s 191(1)(c), carrying a maximum sentence of 14 years’ imprisonment.
4 R v Bailey [2017] NZDC 9449 [Sentencing Judgment].
spanner or monkey wrench with him for this purpose. Mr Bailey’s evidence was that the Hilux had cut out and become stuck on the bridge, the door had opened and Mr Bartlett had begun assaulting him. Mr Bailey said he hit Mr Bartlett once with the monkey wrench and kicked him in the face, but those acts had been in self- defence. Mr Bailey said he had been fearful of Mr Bartlett who, according to Mr Bailey, had threatened him at an earlier encounter and was physically bigger than the appellant. He also said that he had fled the scene as fast as he could, leaping the adjacent bridge and landing on the ground six meters below, injuring his back in the process.
[5] The District Court Judge convicted Mr Bailey of both offences: unlawfully taking a motor vehicle and wounding with intent to facilitate flight. In doing so, the Judge held that the Crown had proved that Mr Bailey had not been acting in self- defence.
[6] On sentencing Mr Bailey, the District Court Judge held that the case fell within band 2 of R v Taueki and set a starting point of five and a half years.5 The District Court Judge imposed an uplift of six months for the unlawful taking charge and gave a discount of five per cent for remorse and acknowledgment of offending, resulting in an end sentence of five years and eight months’ imprisonment.
Grounds of appeal
[7] On the conviction appeal, Ms Pecotic, for the appellant, argued the District Court Judge had not properly considered the law of self-defence and had drawn an inference not based on fact in reaching her conclusion that self-defence was not available to Mr Bailey. She also argued that the Judge had been wrong in holding that Mr Bailey had used excessive force.
[8] On the sentence appeal, Ms Pecotic argued the starting point had been too high and insufficient credit had been given for mitigating factors.
5 R v Taueki [2005] 3 NZLR 327 (CA).
[9] The Crown opposed both appeals. In her submissions, Ms Hoskin supported the Judge’s approach to the law of self-defence and its application on the facts. While acknowledging that the District Court Judge had been wrong on one factual matter and on the inference drawn from that matter, Ms Hoskin argued the decision disclosed no error that would risk a miscarriage of justice. On the sentence appeal, the Crown argued the sentence properly reflected Mr Bailey’s culpability and could not be described as manifestly excessive.
Approach on appeal
[10] This appeal is brought under ss 229 and 244 of the Criminal Procedure Act
2011. It is a first appeal. Under s 232 of that Act, as the appeal is brought against conviction following a Judge-alone trial, this Court must allow the appeal if satisfied that “the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”6 or if “a miscarriage of justice has occurred for any reason”.7 In any other case, the appeal against conviction must be dismissed.8
[11] Under s 250 of the Criminal Procedure Act, the Court must allow an appeal against sentence if satisfied that:9
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[12] In any other case, the appeal must be dismissed.10
Appeal against conviction
[13] Mr Bailey’s case on appeal was focused on the lead charge of wounding with
intent to facilitate flight and not on the charge for unlawfully taking a vehicle.
[14] Ms Pecotic submitted that a key part of the Judge’s reasoning in rejecting the
claim of self-defence was based on an error of fact regarding the positions of the
6 Criminal Procedure Act 2011, s 232(2)(b).
7 Section 232(2)(c).
8 Section 232(3).
9 Section 250(2).
10 Section 250(3).
vehicles at the time of the altercation between Mr Bailey and Mr Bartlett and the inference the Judge drew from that misunderstanding of the facts. Ms Pecotic said the Judge had wrongly assumed, based on the evidence of the police constable who had attended the scene and had found the Hilux and the vehicle Mr Bartlett had driven parked back to back, that the vehicles had been in that position at the time of the altercation. She said the Judge had drawn the inference from the vehicles’ positions that Mr Bailey must have seen Mr Bartlett arrive and execute the manoeuvre necessary to achieve that back to back position, and that Mr Bailey had been prepared for and had attacked Mr Bartlett as soon as he had opened the Hilux door.
[15] In fact, Mr Bartlett’s own evidence had been that, on first arriving at the bridge, he had parked the car he had been driving behind the Hilux before approaching the driver’s door of the Hilux. After Mr Bailey had fled the scene, Mr Bartlett had driven his partner’s car to a nearby house to call the Police and had then returned, parking that vehicle back to back with the Hilux as described in the police evidence. Accordingly, the Judge had erred as a matter of fact and the inference the Judge had drawn from the positions of the vehicles, namely, that Mr Bailey must have known Mr Bartlett was on the scene before Mr Bartlett opened the Hilux door, and her conclusion that Mr Bailey had hit Mr Bartlett as soon as the Hilux door was opened, were wrong. It was submitted these errors had in turn led to the Judge incorrectly concluding that Mr Bailey had not acted in self-defence.
[16] Ms Pecotic said the Judge had also been wrong in not accepting Mr Bailey’s evidence that he had been taken by surprise when Mr Bartlett had opened the car door and had immediately attacked Mr Bailey. Mr Bailey had admitted hitting Mr Bartlett once with the monkey wrench and had also kicked him a few times while making his exit via the passenger door of the Hilux but, in Ms Pecotic’s submission, that was all in an effort to defend himself and get away from Mr Bartlett, whom he feared. She also pointed to the evidence that Mr Bailey had left his shoes behind as he had fought off Mr Bartlett and then had run away as corroborating his account that Mr Bartlett had been the initial aggressor.
[17] Ms Pecotic argued that the Judge had been in error when finding that even if she had been wrong in concluding that Mr Bailey had not been acting in self- defence, Mr Bailey had used excessive force, thereby vitiating the third element of self-defence. In this connection Ms Pecotic said there were inconsistencies in Mr Bartlett’s evidence.
[18] Ms Pecotic disputed Mr Bartlett’s evidence that he had been “knocked out” by the blow and kicks administered by Mr Bailey. She said Mr Bartlett had driven a considerable distance and had not accepted medical assistance until some time after the incident. This behaviour was not consistent with the evidence of someone who claimed to have been rendered unconscious and badly injured. Ms Pecotic also contended that some of the lacerations on Mr Bailey’s head and face would have come from the kicks administered by Mr Bailey, rather than from the monkey wrench. She said not too much weight should be attributed to the fact that Mr Bartlett had been bleeding heavily when the Police arrived because it was well- known that facial wounds bled more profusely than wounds to other parts of the body. For all these reasons, she submitted it was open to the Court to conclude that Mr Bailey had not used excessive force in defending himself against Mr Bartlett and, accordingly, that the Crown had not proved that Mr Bailey had not been acting in self-defence.
[19] In response, Ms Hoskin for the Crown submitted that the District Court Judge had correctly stated the law on self defence and had applied the law correctly to the facts. She accepted that the Judge had been in error about the positions of the vehicles at the time of the altercation for the reasons explained by Ms Pecotic, and that the Judge had been wrong in drawing an inference that Mr Bailey had seen Mr Bartlett arrive and manoeuvre his vehicle to park back to back with the Hilux. However, Ms Hoskin submitted there had been evidence from which the Judge could properly have inferred that Mr Bailey had seen Mr Bartlett’s vehicle arrive and had been aware of his imminent approach: the fact Mr Bartlett had parked behind Mr Bailey’s vehicle, had made no attempt to obscure his arrival and had directly approached the driver’s door of the Hilux.
[20] Ms Hoskin also said that the inference the Judge had drawn had not been determinative of the Judge’s conclusion that Mr Bailey had not been acting in self- defence. In Ms Hoskin’s submission, it was largely immaterial whether Mr Bailey had armed himself before Mr Bartlett arrived at the vehicle or had only done so when surprised by Mr Bartlett opening the vehicle’s door. What was material was the Judge’s assessment as to the timing of events; namely that Mr Bartlett had been struck in the head as soon as he opened the vehicle door. She submitted this finding relied on the Judge’s acceptance as to timing and stood independent of the Judge’s comments on the position of the vehicles.
[21] Ms Hoskin also submitted there had been sufficient evidential foundation for the Judge to conclude that the force used by Mr Bailey was unreasonable in the circumstances as he believed them to be. The medical evidence established there had been multiple blows to the head and that these must have been of significant force given the severity of the injuries. Ms Hoskin argued that, contrary to Ms Pecotic’s submissions, the medical evidence was not consistent with Mr Bailey’s account of what had transpired.
Discussion of appeal against conviction
[22] The essential question at the trial was whether the Crown had proved beyond reasonable doubt that Mr Bailey had not been acting in self-defence in his altercation with Mr Bartlett when Mr Bartlett opened the driver’s door of the Hilux once he found it stuck on the bridge.
[23] I agree with Ms Hoskin that the District Court Judge correctly stated the law on self-defence. The relevant passage of the judgment reads:11
[39] The onus remains on the police or the Crown and the defendant bears no onus of proving the defence. In order for me to consider the application of self-defence, I need to consider the following questions:
(1) What were the circumstances as the defendant believed them to be?
(2) Given those circumstances, has the Crown or the police proved beyond reasonable doubt that the defendant was not acting in self-defence?
(3) Even if I answer no to that, has the Crown proved beyond reasonable doubt that the force the defendant used was not reasonable, having regards to the circumstances as the defendant believed them to be?
[24] The question then arises whether the Judge correctly applied that law to the facts.
[25] As noted above, it was accepted by the Crown that the Judge had erred in her understanding of the positions of the vehicles and had therefore been in error in the inference she had drawn that Mr Bailey must have seen Mr Bartlett arrive and park the car back to back with the Hilux.
[26] The key passages of this part of the District Court’s judgment are:12
[42] The evidence from the victim was that when he approached the bridge, he parked his car. The evidence of the police was that the car was parked back-to-back with the truck. What that meant was the car had to turn around and park and the lights of the vehicles were still on when the police arrived at the scene.
[43] Whilst the victim was doing that manoeuvre in his vehicle, the offender was in the truck. An inference could be drawn that the defendant saw the car arrive and do that manoeuvre. He was trying to jump start the car again, he had not decamped at that point and when the victim approached him, he was ready with the crescent [wrench] and hit him as soon as the car door was opened. That inference is consistent with the victim’s evidence that as soon as he arrived at the car door and opened it, he was struck on the head. He acknowledged he was kicked at some point in the altercation but his evidence was consistent with the fact that he was hit on the head as soon as he opened the door.
[44] I accept that the altercation happened very quickly, both witnesses were consistent on that. However, I prefer the evidence of the victim that as soon as he opened the car door, he was struck on the head. He was not armed and he was in fact entitled to open his own car door, it having been stolen. In those circumstances, I do not consider that the defendant was acting in self-defence. I find that he has made the first blow and struck the victim at the time because he had been caught essentially red-handed in the vehicle of the victim. The blow was struck to enable him to flee the scene, which indeed he did.
[27] While Ms Hoskin submitted that this passage, which comes late in the judgment, should not be regarded as significant in the context of the judgment as a whole, it is difficult to avoid the conclusion that the positions of the vehicles and the inference the Judge drew from her understanding of those positions – namely that Mr Bailey must have know Mr Bartlett was on the scene – were important steps in the Judge’s reasoning that Mr Bailey had not been acting in self defence. That is because the Judge concluded that, having seen Mr Bartlett arrive, Mr Bailey had been ready to attack as soon as Mr Bartlett opened the Hilux door.
[28] That does not necessarily mean the Judge was wrong in her conclusion that Mr Bailey had initiated the attack on Mr Bartlett. Nor does it mean that Mr Bailey must be taken as having been acting in self defence if, as submitted by Ms Pecotic, Mr Bailey had been surprised by the arrival of Mr Bartlett. As Ms Pecotic acknowledged, whether or not Mr Bailey knew of Mr Bartlett’s arrival or was surprised when Mr Bartlett opened the Hilux door, cannot of itself be determinative of whether Mr Bailey was acting in self defence.
[29] The key question is whether the Court would have accepted that the Crown had proved beyond reasonable doubt that Mr Bailey was not acting in self-defence, having regard to all of the circumstances as Mr Bailey believed them to be, if the Judge’s finding regarding the position of the vehicles and the inference the Judge had drawn from that position are removed from consideration.
[30] It is difficult on appeal, without hearing the evidence, to reach a view on whether the Court would have been satisfied that the Crown had discharged the onus of proof to the requisite standard on this changed understanding of the situation. As Ms Hosking submitted, there was other evidence from which the Judge could properly have inferred that Mr Bailey must have been aware that Mr Bartlett was chasing him and of Mr Bartlett’s arrival on the scene:
(a) According to Mr Bartlett’s statement to the Police on 22 April 2016, he had tried to enter the Hilux through the driver’s door and then to board the Hilux as it was being driven off by Mr Bailey so Mr Bailey must have known he was likely to be chased.
(b)In his evidence, Mr Bailey himself acknowledges hearing someone yell out as he was driving off in the Hilux.
(c) It was still dark when Mr Bartlett came upon the Hilux on the bridge so Mr Bailey would have seen the lights of the vehicle Mr Bartlett was driving when Mr Bartlett pulled up behind the Hilux.
[31] But these were not matters on which the Judge based her finding that Mr Bailey must have known Mr Bartlett had arrived and had attacked Mr Bartlett as soon as he opened the Hilux door.
[32] In these circumstances, I accept that the District Court Judge might have been less certain about Mr Bailey’s state of knowledge of Mr Bartlett’s presence and might therefore have been less sure about whether Mr Bailey had initiated the attack. In such circumstances, the District Court might have found that the Crown had not discharged the burden of proving beyond reasonable doubt that Mr Bailey had not been acting in self-defence.
[33] However, for the claim of self-defence to succeed, this Court must also be satisfied that the Crown did not discharge its burden of proving that Mr Bailey used unreasonable force.
[34] On this matter, the District Court Judge said:13
[45] However, even if I am wrong on that issue [that Mr Bailey had not acted in self-defence] and even if I accept the defendant’s evidence that he kicked the victim once after being grabbed and that he was fearful of him in that moment, I consider the act of him grabbing the crescent [wrench] and hitting the victim with the crescent over the head to be excessive force in those circumstances. I consider it excessive because a weapon was used, because it was a blow to the head, the sheer force of the blow shown by the injuries sustained, in addition to the number of injuries, which confirm multiple blows, those injuries being on both sides of the head and to the front of the face.
[35] While Ms Pecotic raised a number of questions about the injuries suffered by
Mr Bartlett, those questions really amount to speculation about how the evidence of
13 Conviction Judgment, above n 1.
Mr Bartlett’s injuries might be interpreted to reach different conclusions from those reached by the District Court about the severity of the injuries and thus about the reasonableness of Mr Bailey’s actions in inflicting those injuries on Mr Bartlett.
[36] As Ms Pecotic herself acknowledged, the medical evidence was unchallenged in the District Court. No new evidence was put before this Court to suggest that the District Court erred in its consideration of the medical and other evidence about Mr Bartlett’s injuries. The evidence before the District Court suggests that the District Court Judge was fully justified in reaching the conclusions she did. This includes the conclusions reached by the Judge as to how the injuries were inflicted as well as their severity.
[37] Despite Mr Bailey’s claim to have hit Mr Bartlett only once with the wrench, the medical evidence is that Mr Bartlett was hit multiple times and suffered at least four significant lacerations, a significant bruise to his face and a fractured orbit or eye socket. Mr Bailey, on the other hand, suffered no injuries in the altercation with Mr Bartlett. The only injury Mr Bailey suffered was when he jumped off the bridge in his effort to escape. Whatever fears Mr Bailey might have had about Mr Bartlett’s previous threat and size, it was not reasonable for Mr Bailey to hit an unarmed Mr Bartlett over the head multiple times with a metal weapon as Mr Bartlett was trying to recover his own vehicle. In my view, the Judge was entitled to reach the conclusion that the Crown had proved beyond reasonable doubt that Mr Bailey had used excessive force, thereby disproving self-defence.
[38] For these reasons, I dismiss the appeal against conviction.
Appeal against sentence
[39] Ms Pecotic argued the starting point of six years (five and a half years for the injury with intent, with an uplift of six months for the unlawful taking charge) set by the District Court Judge was manifestly excessive. In her submission, the Judge erred in placing the case within band 2 of R v Taueki, the relevant guideline
judgment.14 Ms Pecotic contended that the case should have been seen as a band 1 case, albeit at the higher end of band 1.
[40] Ms Pecotic contended that some of the matters the Judge had identified as aggravating factors when deciding on band 2 should not have been considered. She argued that the Judge had not heeded sufficiently the guidance of the Court of Appeal in Taueki that the purpose of identifying bands was not to enforce a “rigid or mathematical approach”15 to sentencing, rather “the suggested bands and starting
points should be used flexibly”.16 Ms Pecotic also argued that the Judge failed to
apply the principle in s 8(g) of the Sentencing Act 2002 that the court must impose the least restrictive outcome that is appropriate in the circumstances. Ms Pecotic identified several cases which she contended involved similar offending to the present case, and which had attracted lower starting points.
[41] Ms Pecotic also argued that the District Court Judge had failed to take into account several mitigating factors relevant to Mr Bailey that should have resulted in a larger discount than the five per cent discount made by the Judge in recognition of Mr Bailey’s remorse and acknowledgement of offending. These included the fact that Mr Bailey had sustained a traumatic brain injury as a young child and that he has significant support in the community, indicating high prospects of rehabilitation.
[42] Ms Hoskin for the Crown submitted that the Judge was correct to place the offender in band 2 of the Taueki guidelines as at least three aggravating factors were present (use of a weapon, attacking the head and resulting serious injuries). The five and a half year starting point fell within the lower end of the available range in that band. Further, Ms Hoskin submitted the Judge rightly had regard to the broadly
analogous case of Neilson v Police.17 She also contended the starting point adopted
was appropriate, in light of the fact that reference to other decisions is not generally of assistance where a guideline decision covers the ground.18
14 R v Taueki, above n 5.
15 At [16].
16 At [42].
17 Neilson v Police [2015] NZHC 2502.
18 Citing as authority R v Taueki, above n 5, at [11].
[43] Ms Hoskin also argued that the five per cent mitigation for remorse might be considered generous, given that Mr Bailey has maintained he had been acting in self- defence, and that no other mitigating factors arose, as the traumatic brain injury suffered by Mr Bailey had no bearing on his culpability or on whether a term of imprisonment would be more difficult for him.
Discussion of appeal against sentence
[44] There was no challenge from Ms Pecotic to the Judge regarding Taueki as the tariff case for a charge under s 191(1)(c) of the Crimes Act 1961. That was appropriate given the observations of the Court of Appeal itself in Taueki that:19
… we anticipate that these guidelines will be able to be applied, by analogy, to s 191(1) and to other offences involving the infliction of serious violence, with appropriate adaptation to reflect the seriousness of the particular offence, and the maximum penalty provided for it.
[45] However, as the final words in that quotation signal, and as confirmed by Fogarty J in Neilson v Police,20 when applying Taueki to cases under s 191(1), it is necessary to exercise some caution.
[46] In considering the starting point for the sentence and in that connection the aggravating and mitigating features of the case and the appropriate band in terms of Taueki, the District Court Judge said in her sentencing notes:21
[11] Turning to the starting point and looking at the aggravating and mitigating features, I need to look at the facts which I made findings on. The Crown draws my attention to the aggravating features of being the use of a weapon which is not contested. You had a monkey wrench with you. They submit that there is an aggravating feature in that there was an unlawful presence in a dwelling place, namely you being at the victim’s home and taking the car if we are looking at the overall offending. The injuries to Mr Bartlett were significant in terms of his fractured eye socket and multiple lacerations to the face and head. The Crown also submit there was an element of premeditation as an aggravating feature because of the presence of the weapon and that is contested by Mr Bioletti [counsel for Mr Bailey]. He submits there was no element of premeditation there and the presence of the weapon should be seen by me to be confined to using it to steal the car. I look at the overall offending and I consider there was an element of premeditation, you decided consciously to go and steal this vehicle, with a
19 At [9]
20 Neilson v Police, above n 17, at [38].
21 Sentencing Judgment, above n 4.
monkey wrench and it is a natural consequence that you used that monkey wrench when you were suddenly confronted by Mr Bartlett catching you red handed and therefore I do find there was an element of premeditation in that.
[12] In terms of mitigating features, you did not plead guilty and you acknowledged the offending in your evidence that you gave but I made findings against you in relation to that. In relation to aggravating features which relate to you, you were on a sentence of supervision at the time of this offending and you have a significant number of previous convictions, however, I do not consider this a situation where I should look at those separately in terms of an aggravating feature or an uplift. The process now is for me to establish a starting point for the inevitable term of imprisonment and I acknowledge you have been on remand for some time.
[13] R v Taueki is the tariff case for offending under s 188 Crimes Act and sets out bands of offending. The starting point for band 2 which is offending featuring two or three of the aggravating features identified in that case is between five and 10 years. Mr Bioletti submits I should be looking at band 1 and has spoken to me about the case of Leonard v R which the Crown has brought to my attention in their submissions, that ended with a starting point of three and a half to four years and the Judge in that case accepted it was band 1 Taueki. However, I accept the Crown’s submission that the case of Leonard can be distinguished and is of lesser culpable offending than yours because there was no weapon used, the offender was sentenced as a sole offender not as a co offender as submitted and the injuries were much less serious in terms of a bite to the arm and the stabbing of a victim in that case was by a different offender and not relevant to the offending which took place in Leonard. Due to the aggravating features, namely the use of a weapon, the unlawful entry and presence in a dwelling house as a peripheral aggravating feature of the overall offending the significant injuries to Mr Bartlett and the multiple injuries to his head and face, and the element of premeditation and self help justice, I consider this falls squarely within band
2 of Taueki.
[47] Ms Pecotic submitted that the Judge had been wrong to take into account, as aggravating factors, the element of premeditation deriving from the presence of a weapon, the unlawful entry into property, and the injuries to Mr Bartlett. As a consequence, she argued that there had been only two aggravating factors: the use of a weapon and the assault to the head. In that case, she submitted, the case fell squarely within band 1 of Taueki.
[48] While I accept there is force to some of Ms Pecotic’s submissions on these
matters, I do not accept her conclusion regarding band 1.
[49] On the premeditation point, Ms Pecotic argues (as did Mr Bioletti before the District Court), that the wrench was intended to be used only for the purpose of breaking the ignition of the Hilux and not as a weapon. The District Court Judge did
not accept that submission and, in effect, inferred from the presence and nature of the wrench that it also had a collateral purpose and was used for that purpose when Mr Bartlett came upon Mr Bailey.
[50] While I consider it was open to the Court to draw that inference and in that regard to see the wrench as involving an element of premeditation, I find it difficult to accept that taking a wrench to convert a car and then using the wrench when accosted by the owner and trying to escape was premeditation of the kind envisaged in Taueki. There, the Court of Appeal drew a distinction between premeditated violence and violence that is a reaction to an unexpected event which, the Court
observed, will generally be seen as less culpable than premeditated violence. 22 In
this aspect, the present case is similar to the situation in Neilson v Police where the defendant took a hammer to a jewellery store to execute a theft and hit a bystander on the head with the hammer when that person tried to prevent his escape.23
Premeditation was not considered a separate aggravating factor in Neilson.
[51] For these reasons, I accept premeditation should not have been considered a separate aggravating factor.
[52] With regard to the unlawful entry, the Hilux was parked on the driveway in front of the garage of Mr Bartlett’s partner’s house when Mr Bailey broke into it. While Mr Bailey entered onto private property, he did not break into the home and the violence towards Mr Bartlett took place some considerable distance from the property. I note that the Court of Appeal in Taueki emphasised the sanctity of the home and “violence occurring in a person’s house” when considering home invasion as an aggravating factor and, in that connection, s 9(1)(b) of the Sentencing Act 2002
which identifies entry into a dwelling place as an aggravating factor.24 There was no
violence in the home here. Accordingly, I accept Ms Pecotic’s submission that in the
circumstances of this case the unlawful entry was relevant more to the taking of the
Hilux than to the wounding charge.
22 R v Taueki, above n 5, at [31](b).
23 Neilson v Police, above n 17.
24 R v Taueki, above n 5, at [31](j).
[53] I do not accept Ms Pecotic’s submission that the severity of the injuries should not be considered an aggravating factor because that is inherent in the charge of wounding with intent. As the Court of Appeal made clear in Taueki, serious injury is an aggravating factor when considering sentences for what it called “GBH offending”, offending involving grievous bodily harm, even though injury is inherent
in such offending.25
[54] A similar proposition – namely, that serious injury should not have been considered as a separate aggravating factor – was argued and rejected in Neilson. In that case, where the victim suffered a single blow to the head from a hammer and required 35 stitches, Fogarty J said:26
… The Court of Appeal in Taueki made clear that this aggravating factor applies where the level of harm is greater than that inherent in the charge. The victim in this case suffered serious injury. While the injury may not be the most serious that could be classified as a wound or grievous bodily harm, it was still a serious injury. The Court of Appeal observed in Taueki that the seriousness of a particular aggravating factor could vary from case to case. In this case, I consider that the seriousness of the injury was sufficient for it to be regarded as a separate aggravating factor.
[55] I consider Neilson is again apposite to the present case where Mr Bartlett received a number of blows to the head that resulted in lacerations and heavy bleeding and, perhaps most significantly, resulted in a fractured eye socket. According to the statement Mr Bartlett made before Mr Bailey’s sentencing, he required an operation for orbital eye reconstruction and has continuing vision impairment. This is at least the same order of injury to that inflicted in Neilson where the seriousness of injury was accepted as a separate aggravating factor.
[56] There is one other matter arising from Neilson which, although not argued before me, in my view warrants consideration. That is, whether the use of a weapon and the attack to the head should be considered as separate aggravating factors. In Neilson, the High Court accepted the submission of counsel for Mr Neilson that the use of the hammer as a weapon and the attack to the head should not be regarded as
separate aggravating factors in that case. Fogarty J stated:27
25 At [31](c).
26 Neilson v Police, above n 17, at [43].
27 At [42].
I accept the appellant’s submission that the judge should not have regarded attacking the head and use of a weapon as separate aggravating factors in this case. The Court of Appeal’s decision in Flavell v R where the appellant had hit the victim in the head with a baseball bat supports this proposition. In that case, the Court of Appeal considered that attacking the head with a baseball bat was not of sufficient seriousness to be regarded as two separate aggravating factors. The same can be said here. This was not a prolonged beating or kicking of the head, but rather, the use of a weapon in one blow to the head.
[57] Neilson and Flavell28 were both cases involving a single blow to the head whereas the evidence here is that Mr Bailey inflicted five or six blows to the head. On the other hand, like those other cases, this was not a case of a prolonged beating of the head. As the District Court Judge observed in her judgment:29
[44] I accept the whole altercation happened very quickly, both witnesses
were consistent on that….
While the blows were more numerous in the present case, the altercation would seem to have been over in a shorter time than the altercation in Flavell where the Court of Appeal observed that the whole incident, which involved a number of people, happened within two minutes.30 Mr Bartlett’s evidence, noted by the District Court Judge, was that the altercation in this case lasted approximately 20 seconds.31
[58] Given that the seriousness of the injury is already being considered as a separate aggravating factor, I consider that it is appropriate in this case to regard the use of a weapon and the attack to the head as a single combined aggravating factor as did the Courts in Flavell and Neilson.
[59] The net result is that there were the following aggravating factors in this case: (a) The use of a weapon and the attack to the head; and
(b) The severity of the injuries suffered by Mr Bartlett.
28 Flavell v R [2011] NZCA 361.
29 Conviction Judgment, above n 1.
30 Flavell v R, above n 28, at [21].
31 Conviction Judgment, above n 1, at [14].
[60] Given that the Court of Appeal said in Taueki that band 2 is appropriate for offending which features two or three of the aggravating factors identified in paragraph [31] of that decision,32 even when the factors are adjusted as I have decided, this still leads to an outcome consistent with the conclusion of the District Court Judge that this is a case falling within band 2 of Taueki. Neilson was also a case where the High Court concluded there were only two separate aggravating factors – the same two factors as above – and agreed that it was still appropriate to regard it as falling within band 2 of Taueki.33
[61] In the present case, the District Court Judge set a starting point of five and a half years – towards the bottom of the range for band 2 – before adding an uplift of six months for the unlawful taking charge. While the District Court Judge was right to set the starting point towards the bottom of the range for band 2, given that I have identified only two separate aggravating factors and given the need, as recognised in [41] above, to exercise caution in applying Taueki to s 191(1) cases, I consider the District Court should have set the starting point at 5 years – the bottom of the range, as was done by the High Court in Neilson. This is consistent with the principle in s 8(g) of the Sentencing Act 2002 that the court must impose the least restrictive outcome that is appropriate in the circumstances.
[62] I note that the Court of Appeal also set a starting point of five years in Flavell, where there were also two aggravating factors, even though the Court in that case considered it a band 1 Taueki situation. This underlines the overlap between the top of band 1 and the bottom of band 2, a point discussed by Ms Hoskin in her submissions.
[63] With regard to the cases pointed to by Ms Pecotic as involving similar offending to the present case but which attracted lower starting points, I note that each involved factual situations and legal considerations that make them, in my view,
less than apposite comparators:
32 R v Taueki, above n 5, at [38].
33 Neilson v Police, above n 17, at [44].
(a) In Coulter v R,34 where the Court of Appeal identified a starting point for the appellant of four years’ imprisonment as appropriate for a conviction, the offender inflicted one blow to the head (by head butt) and threatened but did not use the weapon involved (meat cleaver). The injuries sustained by the victim appear to have been less serious than those sustained by Mr Bartlett in the current case.
(b)In McRae v R,35 where a starting point of three years and eight months’ imprisonment was upheld on appeal, the charge (burglary) was a less serious charge than in the present case, and the attack to the head of an elderly gentleman using a set of bolt-cutters was carried out by the young co-offender of the accused.
(c) In Dixon v Police,36 where a starting point of two and a half years was adopted, the charge of wounding with reckless disregard for safety carries half the maximum sentence (seven years) than that carried by the charge faced by the appellant in this case (14 years).
(d)In R v Singh-Kang,37 where a three year starting point was adopted for an offender who was one of a party of three which kidnapped and assaulted a victim over the course of an hour, including using a chainsaw in a threatening manner, the tariff case for the offending was R v Nuku,38 which prescribes lower starting points than R v Taueki, the appropriate guideline in this case.
[64] I consider the uplift of six months for the unlawful taking charge was appropriate and note that Ms Pecotic did not challenge that aspect of the sentence.
[65] With regard to points made by Ms Pecotic on mitigation, it is not apparent from the Department of Corrections Provision of Advice to Courts at the time of
Mr Bailey’s sentencing, from the written submissions made on behalf of Mr Bailey
34 Coulter v R [2013] NZCA 336.
35 McRae v R [2013] NZCA 75.
36 Dixon v Police HC Tauranga CRI 2011-470-24, 5 October 2011.
37 R v Singh-Kang [2014] NZHC 126.
38 R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39.
at sentencing or from the District Court Judge’s sentencing notes that either Mr Bailey’s childhood traumatic brain injury or the level of community support available to Mr Bailey were raised at the original sentence hearing. Nor was any evidence on these matters provided to this Court. In these circumstances, I see no basis for increasing the discount already made by the District Court.
[66] For all of the above reasons, I allow the appeal against sentence and reduce the sentence to five years and two months’ imprisonment, based on a starting point of five years, an uplift of six months for the unlawful taking charge and a five per cent discount for remorse and acknowledgment of offending.
Conclusion
[67] The appeal against conviction is dismissed.
[68] The appeal against sentence is allowed. A final sentence of five years and
two months’ imprisonment is substituted.
van Bohemen J
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