Bailey v The Queen - [2017] NZHC 2505

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 Respondent

Judgment:

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…

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 Bailey v The Queen

Details

AGLC: Bailey v The Queen [2017] NZHC 2505
Case: [2017] NZHC 2505
Decision Date: 13 October 2017

CaseChat Overview and Summary

The appellant, Samuel Bailey, appealed his conviction and sentence in the High Court of New Zealand. Bailey was convicted of unlawfully taking a motor vehicle and wounding with intent to facilitate flight. The latter charge was the lead charge for sentencing purposes, for which Bailey received five years and eight months’ imprisonment, as well as a first strike warning. The appeal against conviction focused on the District Court Judge’s handling of the self-defence claim and the sufficiency of the evidence to prove that Bailey had not acted in self-defence and had used excessive force. The appeal against sentence argued that the starting point for the sentence was too high and insufficient credit had been given for mitigating factors. The High Court found that while the District Court Judge had erred in her understanding of the positions of the vehicles at the time of the altercation, this did not necessarily lead to a conclusion that Bailey was acting in self-defence. The High Court also found that the District Court Judge was entitled to conclude that the Crown had proved beyond reasonable doubt that Bailey had used excessive force. Therefore, the appeal against conviction was dismissed. On the appeal against sentence, the High Court found that the District Court Judge should have set the starting point at five years, rather than five and a half years. The High Court also found that there was no basis for increasing the discount already made by the District Court. The appeal against sentence was allowed, and the sentence was reduced to five years and two months’ imprisonment.

Orders