Bailey v The the Queen
[2022] NZCA 335
•26 July 2022 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA596/2020 [2022] NZCA 335 |
| BETWEEN | THEODORE ANTHONY BAILEY |
| AND | THE QUEEN |
| Hearing: | 10 May 2022 |
Court: | Clifford, Venning and Moore JJ |
Counsel: | D P H Jones QC for Appellant |
Judgment: | 26 July 2022 at 10.30 am |
JUDGMENT OF THE COURT
A The application for an extension of time to appeal is granted.
B The application to adduce further evidence is granted.
C The appeal is dismissed.
___________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Theodore Bailey pleaded guilty to a charge of aggravated assault,[1] namely assault on a constable with intent to obstruct the constable in the execution of his duty.
[1]Crimes Act 1961, s 192(2).
Judge Paul declined Mr Bailey’s application for a discharge without conviction and sentenced him to 80 hours’ community work.[2] Mr Bailey appeals the refusal to discharge him without conviction.
[2]R v Bailey [2020] NZDC 9699 [Judgment under appeal].
Such appeals are characterised as an appeal against conviction and sentence.[3]
[3]Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]–[8]; and Criminal Procedure Act 2011, ss 229 and 244.
The appeal was filed six months out of time as Mr Bailey mistakenly filed the initial appeal in the High Court. The Crown does not oppose an extension of time. The time for filing the appeal is extended accordingly.
Background
On 1 March 2019, when Mr Bailey was 20, he was at a dance event held at the Ferguson Bar on the Massey University campus at Albany. A team policing unit was present given that approximately 1,500 persons were in attendance. In total nine or 10 officers were at the scene. At approximately 11.30 pm bar security staff ejected Mr Bailey from the bar as he was intoxicated. He was trespassed from the venue. The police became involved. Constables Bailie and Murphy walked Mr Bailey backwards towards an area where taxis and Ubers were operating from. On their evidence, at some point Mr Bailey stopped walking and said “I’m not leaving”, pushed both constables in the chest and sought to go past them to re-enter the venue.
Constable Bailie arrested Mr Bailey. That involved putting him to the ground to restrain him and applying handcuffs. Mr Bailey did not co-operate. He refused to allow himself to be handcuffed. He thrashed his arms and legs about in an attempt to break free. Constable Govinder and Senior Constable Wilson came to assist the arresting officers.
During the course of the officers’ attempt to apply handcuffs to Mr Bailey, Mr Bailey punched Senior Constable Wilson to the face knocking him backwards. As a result of Mr Bailey’s punch Senior Constable Wilson suffered a fractured nasal socket, swelling and a broken tooth. He was taken by ambulance from the scene, required hospital treatment overnight and was unable to return to work for a week as a result of his injuries.
District Court decision
In assessing the gravity of the offence, Judge Paul noted the seriousness of the assault and resultant injury to Senior Constable Wilson.[4]
[4]Judgment under appeal, above n 2, at [42]–[43].
The Judge then rejected a submission that he should give Mr Bailey credit for good character, referring to reports from Police National Intelligence Application (NIA) records relating to past police interaction with Mr Bailey.[5] The NIA entries recorded three past incidents although no charges had been laid.[6]
[5]At [23] and [38]–[40].
[6]At [27]–[30].
Although the Judge noted Mr Bailey’s youth and that, following the offending, he had undertaken voluntary community work with Te Rangimarie Charitable Trust and had attended the alcohol and other drug programmes operated by Community, Alcohol and Drug Services (CADS), he still assessed the overall gravity of the offence as moderately serious.[7]
[7]At [12], [16], [43] and [50].
As to consequences, Judge Paul noted that Mr Bailey’s employment was not at risk.[8] Nor did he consider there was any evidence that Mr Bailey’s right to travel would be affected by the entry of a conviction as opposed to the circumstances of the offending.[9] The Judge was satisfied the consequences of conviction were not out of all proportion to the gravity of the offending.[10]
Appeal points
[8]At [45].
[9]At [44].
[10]At [48].
In support of the appeal Mr Jones QC submitted that, in declining the application for discharge, the Judge erred by:
(a)accepting and relying on the NIA information to conclude Mr Bailey was not of good character;
(b)failing to take into account or give proper weight to the mitigating factors, including good character, which meant the Judge’s assessment of gravity of the offending was wrong;
(c)appearing to consider the fact the person assaulted was a policeman was an aggravating factor, notwithstanding that was an essential element of the offence under s 192(2) of the Crimes Act 1961;
(d)giving insufficient weight to Mr Bailey’s youth, rehabilitative efforts and remorse; and
(e)incorrectly assessing the direct and indirect consequences of conviction. Given the earlier failings the Judge’s final assessment as to proportionality was flawed.
Further evidence
Mr Bailey’s appeal was previously before the Court for hearing on 13 May 2021. Both parties sought to adduce further evidence. Mr Jones sought to adduce evidence on Mr Bailey’s behalf about the circumstances of the offending intended to show it was less serious than the District Court Judge had found it to be. The Crown responded with evidence from the arresting officers intended to show it was serious offending of its kind. As the witnesses were not present, the Court adjourned the appeal at Mr Jones’ request.[11]
[11]Bailey v R CA596/20, 13 May 2021.
Mr Bailey has produced evidence from his friend Joshua Whitford and has provided two affidavits himself. In the first he set out the incident from his point of view. In the second more recent one, he produced information regarding the effect of the conviction on his ability to travel freely to Australia. As noted, the Crown responded with affidavits from Constables Bailie and Murphy, and an affidavit of Senior Sergeant Stainton, annexing the NIA reports and a job sheet relating to one of the past incidents.
Mr Bailey was cross-examined, as were Constables Bailie and Murphy. The Court was also provided with CCTV footage from above one of the entrances to the Ferguson Bar, the bar in issue. The CCTV footage showed Mr Bailey being confronted by the police officers and being walked backwards towards the Uber/taxi area, although it did not show the incident when Mr Bailey was arrested during which Senior Constable Wilson was assaulted.
In his affidavit Mr Bailey sought to explain his confrontation with the police. He had lent his credit card to Mr Whitford to buy a round of drinks earlier in the evening and had not retrieved the card. After he was ejected from the bar, he was not allowed back in. His phone was out of battery and he was unable to contact any of his friends or to order an Uber home. He said that was the reason he tried to head back to the bar.[12] Mr Bailey said he attempted to explain his situation to the police officers but they did not listen to him and continued to walk him away from the bar for about 50 to 60 metres at least.
[12]Mr Bailey’s evidence that his friend had his card is confirmed by Mr Whitford’s uncontested evidence.
Mr Bailey said he became frustrated and, in the words from his affidavit, “I put my hands out and touched the officers”. He was then arrested and taken to the ground, and it was in the course of that that he struck out and hit Senior Constable Wilson in the face. He said he did not intend to injure the constable at the time. Mr Bailey himself ended up with a black eye and cuts and bruises.
Both Constables Murphy and Bailie gave evidence. In their affidavits they denied that Mr Bailey had advised them he wanted to return to the bar to get his card. They said if he had advised them of that they would have arranged for his friend to meet them outside the venue. Constable Murphy made the point that neither of them offered any physical signs they were threatening Mr Bailey before he pushed them in the chest. He was able to strike them in their chests because they had not adopted a frightening or threatening physical stance.
During cross-examination Mr Bailey repeated that he told the police officers about his bank card and that he wanted to get home. In re-examination he said that the CCTV camera showed him pointing with his arm towards the bar, where his mates and card was.
In the course of cross-examination Mr Bailey accepted that it “may be” that he gave the officers a hard shove to their chests before they tried to arrest him. He also accepted that the officers had said something like “[c]ome on man, all you need to do is leave”, or something like “[y]ou’ve been ejected, you’ve been warned, you’ve been asked to leave – all you need to do is leave”, and that if he did not leave he would be arrested for trespass.
Under cross-examination both officers confirmed the evidence from their affidavits. They denied Mr Bailey had told them that he needed to get his card back from his friend to get home. Constable Bailie had carried out a question and answer session with Mr Bailey after his arrest. He recorded the exchange as follows:
Q. Why did you punch the police officer?
A.Because I was getting detained for no reason and I was under threat from police officers.
Q.Did the police officers tell you to leave?
A.Yes, but with their hands. I was never asked politely to leave the premises and I was smacked before asked.
Q.How much alcohol have you had tonight?
A.Maybe seven to nine cans.
Q.What alcohol?
A.Bourbon.
Having reviewed the CCTV footage and having seen and heard Mr Bailey and Constables Bailie and Murphy give evidence, we prefer the evidence of the officers as to the circumstances in which Mr Bailey came to punch Senior Constable Wilson in the face. We do so for the following reasons:
(a)The officers’ evidence is inherently more reliable. They were both on duty at the time. Their evidence is consistent. Against that, Mr Bailey was under the influence of alcohol that night having consumed on his own admission seven to nine cans of bourbon. He had also been ejected from the Ferguson Bar because of his intoxicated state.
(b)Mr Bailey’s gesture with his arm is equally consistent with an intoxicated person responding and throwing out his arm when confronted by the police. Notably he did so at about the time when the two officers became involved. Further, the arm he threw out was his left arm, gesturing away from the bar rather than towards it as he said.
(c)Mr Bailey accepts that he was frustrated at having been trespassed from the bar. That emotion influenced his subsequent actions and makes it more likely he acted in the way the officers described, and without explanation.
(d)The officers had no reason to be aggressive towards Mr Bailey. They were walking him out and were caught off guard when he stopped. He then initiated the assault by pushing them both in the chest, including the female officer. It was only after that that he was arrested.
(e)In his affidavit Mr Bailey had sought to minimise the original assault on the police officers as a “touch”. In cross-examination he accepted that he used an open palm push to their chests and accepted that it “may” have been a hard shove.
(f)When Mr Bailey was spoken to by the police officer shortly after the incident, he said nothing to the officer about the reason he now advances for wanting to return to the bar.
(g)In the same interview Mr Bailey said he was smacked before he was asked to leave. That is plainly wrong. He did not suggest that in his affidavit or in his evidence before this Court.
We find that on the night, Mr Bailey was badly affected by alcohol, so much so that he was ejected from the bar. He refused to accept that and tried to re-enter the bar and was turned away again. He was very frustrated. He was then confronted by the police and walked backwards towards the Uber/taxi area. His frustration boiled over. He stopped. The officers stopped. He then assaulted them by pushing them both in the chest. They then sought to arrest him.
His frustration boiled over to anger and he lashed out at the officers and punched Senior Constable Wilson, who by that stage had come to the assistance of the arresting officers, in the face.
Submissions
First, Mr Jones submitted the Judge fell into error by referring to the NIA reports.
Next, he submitted that the Judge failed to take into account or give proper weight to the mitigating factors and as a consequence his assessment of the gravity was wrong.
Mr Jones submitted that Mr Bailey’s youth was a factor the Judge should have taken into account. It is widely acknowledged that youths are more likely to act irrationally and emotively with impulsive and aggressive behaviour.[13] Rehabilitation is important for young offenders.
[13]Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].
Mr Jones next emphasised that Mr Bailey had taken a number of significant steps to rehabilitate himself. In Mathieson v Police, this Court considered rehabilitation should be taken into account in the assessment of the gravity of the offending.[14] Mr Bailey has done 56 hours volunteering at the Te Rangimarie Trust and completed three courses with CADS and engaged in alcohol counselling and anger management. He has also expressed remorse for the injuries caused to Senior Constable Wilson. Mr Jones made the point that Mr Bailey is now in gainful employment and obviously well thought of by his employer who provided a reference for him. Since the incident he has completed his apprenticeship.
[14]Mathieson v Police [2019] NZCA 406 at [15]–[19].
Mr Jones submitted the gravity of the offending could properly be categorised as low. The consequences of convictions would be out of all proportion.
Discussion
This Court has confirmed the approach to take to an application for discharge. It involves a three-step process. In this case the Court is required to:[15]
(a)assess the gravity of the offence which involves taking into account all aggravating and mitigating features of the offending and Mr Bailey;
(b)identify the direct and indirect consequences for Mr Bailey of conviction; and
(c)determine whether the direct and indirect consequences of conviction can be said to be out of all proportion to the gravity of the offending. This may include the purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act 2002 and the aggravating and mitigating factors relating to the offence and offender prescribed by s 9.[16]
[15]Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [14].
[16]At [12].
If the Court is satisfied the proportionality test is met then the discretion under s 106 is engaged, although it would be a rare case in which the discretion is then exercised against an applicant for discharge.[17]
Gravity of the offending
[17]R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [12]; and Blythe v R, above n 15, at [13].
As we indicated to counsel, we accept Mr Jones’ submission that the Judge erred by accepting the unverified material in the form of reports from the NIA police database relating to Mr Bailey to conclude that Mr Bailey was not of good character. We agree that the NIA reports are different to the record which exists where a defendant has previously been granted diversion.[18] In an appropriate case, the information from the NIA about the past behaviour may be so clear and compelling as to be appropriately taken into account. That is not the case here.
[18]Millar v R [2019] NZCA 570 at [33].
We approach consideration of the gravity of the offending afresh.
Mr Jones submitted Mr Bailey was entitled to an allowance for good character when the Court was assessing the gravity of his offending. Putting the NIA reports to one side for these purposes, what can be said is that Mr Bailey is before the Court with no convictions. However, at the age of 20, Mr Bailey is not able to point to any particular contributions that he has made to the community or society generally. In his circumstances, any recognition for Mr Bailey’s lack of convictions would necessarily have been modest. We are satisfied it would not have materially altered the assessment of the gravity of the offending.
Mr Jones emphasised that when he committed the offence, Mr Bailey was only 20 years old. While youthful impetuosity may explain or mitigate the gravity of the offending in some cases, a major contributing factor to the offending in this case was that Mr Bailey was intoxicated, which is not a mitigating factor.
Further, while we accept that Mr Bailey has taken steps towards his rehabilitation which are to his credit, his personal circumstances remain only part of the assessment of the gravity. The incident itself was serious. It commenced with an unprovoked assault on police officers. While Mr Bailey was not charged with those assaults, the injury to Senior Constable Wilson occurred during the subsequent attempt to arrest him when Senior Constable Wilson had cause to assist his fellow officers.
Mr Bailey had a number of opportunities to de-escalate the situation and co‑operate with the police officers rather than to continue to react violently and aggressively in the way he did. He was badly affected by alcohol. He did not comply with the police direction. Despite accepting in cross-examination that the officers had said he had been trespassed and all he had to do was leave, he refused to do so and confronted the officers rather than continue to be directed towards the exit. He pushed out at the police officers and then, rather than allowing himself to be arrested, he continued to struggle and lash out at the police officers so that he had to be taken to ground. He then did more than just lash out at Senior Constable Wilson. He punched him directly in the face. It is also relevant that the injuries caused to Senior Constable Wilson were serious. They obviously affected him badly.
While we accept Mr Jones’ submission that the fact the attack was on a police officer cannot be double counted as an aggravating feature because it is a constituent element of the offence, an aggravated assault is more serious than a common assault, which must inform the assessment of the gravity of the offending.
On a scale of low, moderate and serious, without any regard to the NIA reports, and after taking account of Mr Bailey’s youth and the steps he took subsequently, including his expression of remorse, we still consider the offending is properly assessed as being moderately serious offending of its kind.
The consequences for Mr Bailey
It is apparent that the conviction has not affected Mr Bailey’s employment. He has completed his apprenticeship and remains supported by his employer.
The principal submission as to the consequences of convictions was the potential effect on Mr Bailey’s ability to travel, particularly to Australia.
During the course of his cross-examination Mr Bailey accepted that he had recently travelled to Australia to see his brother. When he declared his conviction, the Australian authorities asked him if he had served any jail time and how long ago the incident was. Once he confirmed he had not been sentenced to jail, and told them it was three years ago, in his words, “[t]hey didn’t seem too fussed about it”. The interview at the border took five minutes.
Mr Jones suggested the position may be different if Mr Bailey wanted to stay and work in Australia and every trip would be conditional on a particular border official deciding whether to let him into the country. But with respect that is speculative. There is no evidence as to how likely it is that Mr Bailey will be denied entry to Australia. His recent experience would suggest it is unlikely that he will be denied entry to Australia. There is no basis for this Court to find there is a real risk that a conviction of this nature (with the circumstances properly explained) will seriously impede Mr Bailey’s ability to travel to Australia.[19]
[19]R v Taulapapa [2018] NZCA 414 at [22].
Mr Jones also emphasised that as a young man Mr Bailey will have a conviction for an assault. That is correct, but as his recent experience with the Australian authorities show, when all the matters are taken into consideration, including the way the District Court dealt with the matter and the length of time that has passed since the incident, Mr Bailey may continue to improve his character. It will be up to him whether he allows the conviction to affect him long-term or not.
We assess the consequences of a conviction as low in Mr Bailey’s case. It follows that it cannot be said that the consequences of a conviction will be out of all proportion to the gravity of the offending.
Result
The application for an extension of time to appeal is granted.
The application to adduce further evidence is granted.
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Appellant
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