| 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…
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- Bailey v The the Queen [2022] NZCA 335
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- [2022] NZCA 335
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CaseChat Overview and Summary
The appeal raised questions about the District Court's assessment of the gravity of the offence, the consequences of conviction for Bailey, and whether those consequences were out of proportion to the gravity of the offending. The Court of Appeal found that the District Court had erred in accepting unverified material from the Police National Intelligence Application (NIA) database to conclude that Bailey was not of good character. The Court also found that while Bailey's youth and rehabilitation efforts were mitigating factors, the overall gravity of the offence remained moderately serious due to the unprovoked assault on police officers and the serious injury caused to Senior Constable Wilson. The Court further found that the consequences of conviction for Bailey were low, particularly regarding his ability to travel to Australia, as his recent experience suggested that it was unlikely he would be denied entry. The appeal was dismissed as the consequences of conviction were not out of proportion to the gravity of the offending.
The Court granted the application for an extension of time to appeal and the application to adduce further evidence but dismissed the appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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