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Baillie v R

Baillie v R

Case [2010] NZCA 507 16 November 2010

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA425/2010
[2010] NZCA 507
BETWEENJAMIE ADSLEY BAILLIE

Appellant

ANDTHE QUEEN

Respondent

Hearing:4 November 2010

Court:Randerson, Potter and Cooper JJ
Counsel:R P Boot for Appellant

B D Tantrum for Respondent

Judgment:16 November 2010 at 11 a.m.

JUDGMENT OF THE COURT

A            The application for an extension of time to appeal is granted.
B            The appeal is dismissed.
REASONS OF THE COURT
(Given by Potter J)
Introduction
[1]        Jamie Adsley Baillie appeals against a sentence of two years and three months imprisonment imposed by Judge Spear in the District Court at Hamilton on 13 April 2010 on the ground that it is manifestly excessive.[1] The appellant entered guilty pleas to charges of wilfully attempting to pervert the course of justice and assault with intent to injure on the morning of trial, 6 October 2009.
[1]      R v Baillie DC Hamilton CRI-2009-019-3220, 13 April 2010.
[2]        The appellant also seeks an extension of time to appeal which is not opposed by the Crown.
Background facts
[3]        The agreed summary of facts for sentencing purposes explains that the complainant (the victim of the assaults by the appellant and his co-offender) had been assaulted by an associate of the appellant and had subsequently made a statement to the police about that assault. The complainant was shortly due to give evidence in court about the previous assault.
[4]        At about 10.30 p.m. on Saturday 4 April 2009 the appellant and his co-offender drove to the complainant’s home in Te Aroha. They went to the complainant’s address for the purpose of attempting to dissuade him from giving evidence in relation to that matter.
[5]        Mr Baillie was a friend and longstanding acquaintance of the complainant. The co-offender did not know the complainant but was taken to the complainant’s address by Mr Baillie to provide assistance. Both had been drinking. Mr Baillie raised the topic of the forthcoming court case. He told the complainant that the man who accompanied him, Mr Tong, was a “tough guy” and that he must drop the assault charges or he would be beaten up. Mr Tong removed his shirt. Both the appellant and Mr Tong punched the complainant repeatedly in the forehead, left eye and temple area. The complainant ultimately ended up on the floor in front of the couch in the lounge. While he was curled up on the floor in a foetal position Mr Baillie kicked him in the ribs. Mr Tong grabbed the complainant’s legs and told him he would break them. He was threatened that he would be killed if he did not drop the charges. Mr Tong produced a small silver pocket knife from his trouser pocket, opened the blade and started waving it at the complainant. The complainant eventually escaped, hid in a paddock for a period of minutes until he heard his attackers drive off, and then went inside and called the police.
[6]        The complainant suffered a swollen mouth, a small cut above his right eye…

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 Baillie v R

Details

AGLC: Baillie v R [2010] NZCA 507
Case: [2010] NZCA 507
Decision Date: 16 November 2010

CaseChat Overview and Summary

The case of Baillie v R involves Jamie Adsley Baillie, who appeals against a sentence of two years and three months imprisonment imposed by the District Court at Hamilton on 13 April 2010, arguing that it is manifestly excessive. Baillie had entered guilty pleas to charges of attempting to pervert the course of justice and assault with intent to injure. The Court of Appeal of New Zealand, comprising Randerson, Potter, and Cooper JJ, considered the appeal on 4 November 2010, with judgment delivered on 16 November 2010. The appeal was dismissed, and the application for an extension of time to appeal was granted. The legal issues in this case included the appropriateness of the starting point for sentencing, the consideration of the period spent on electronic bail, and the overall severity of the sentence.

The court examined whether the District Court Judge correctly assessed the starting point for sentencing, which should be based on the offender's role rather than the nature of the offence. The Court of Appeal found that the starting point of three years and nine months for Baillie's role as the instigator was justified, given the severity of the offence. The court also considered the appropriate discount for the lengthy period spent on electronic bail, noting that while compliance with bail conditions could be a mitigating factor, the discount must not be calculated on a strict mathematical basis. The substantial discount for the guilty plea and participation in a restorative justice conference, which resulted in a total discount of eighteen months, encompassed any appropriate allowance for the period on electronic bail. The court concluded that the sentence of two years and three months imprisonment was not manifestly excessive.

In summary, the Court of Appeal dismissed the appeal and granted the extension of time to appeal. The reasoning focused on the correctness of the starting point for sentencing and the appropriate discount for the period spent on electronic bail, ultimately affirming the District Court's sentence as not being manifestly excessive.

Orders