Bakulich v Police

[2025] NZHC 2939

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-193

[2025] NZHC 2939

BETWEEN

FIONA BAKULICH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	30 September 2025
Counsel:	S J Gray and L L Tu’i for appellant K H M Nihill for respondent
Judgment:	7 October 2025

JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 7 October 2025 at 11.30 am

Registrar/Deputy Registrar

Solicitors: MC, Auckland

BAKULICH v POLICE [2025] NZHC 2939 [7 October 2025]

[1]                  Fiona Bakulich was sentenced in the District Court at Auckland, on 12 charges of obtaining by deception1 and one of misconduct with human remains,2 to two years and three months’ imprisonment.3 She appeals against that sentence.

[2]                 Assessing the substantive merit of an appeal requires consideration whether, for any reason, there was a sentencing error such that a different sentence should be imposed.4 It must be shown that the sentence is manifestly excessive or wrong in principle, or that there are exceptional circumstances requiring the correction of an in-range sentence.5

[3]                 Ms Bakulich does not challenge the starting point of three years’ imprisonment, which the sentencing Judge selected so that her sentence would reflect the seriousness of her offending. But she says that the reductions that were applied, to tailor the sentence to her own circumstances as an individual, were not adequate. In particular, she says:

(a)Her poor mental health, and the compounding effect of widespread publicity relating to her prosecution, makes the sentence disproportionately severe. To account for these issues, the sentencing Judge should have applied a reduction of at least 15 per cent.

(b)A further reduction, of up to 15 per cent, should have been considered, as a response to Ms Bakulich’s background, which included early exposure to familial dysfunction and dysregulated behaviour.

(c)The sentencing Judge erred by finding Ms Bakulich undeserving of a distinct five per cent reduction for her genuine remorse.

1      For nine charges: Crimes Act 1961, ss 240(1)(a) and 241(b). Maximum penalty: one year’s imprisonment. For remaining three charges: Crimes Act, ss 240(1)(a) and 241(a). Maximum penalty: seven years’ imprisonment.

2      Crimes Act, s 150(a). Maximum penalty: two years’ imprisonment.

3      R v Bakulich [2025] NZDC 7898.

4      Criminal Procedure Act 2011, s 250.

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[36], Te Aho v R [2013] NZCA

47 at [30].

(d)Had the sentencing calculations included all proper reductions for individual circumstances, they would have permitted a sentence of home detention, which should then have been imposed.

[4]                 Based on these arguments, Ms Bakulich says that her prison sentence should be quashed, and a home detention sentence imposed in its place. I will return to the arguments after describing Ms Bakulich’s offending, the sentence imposed on her, and her application for leave to adduce evidence on appeal.

Ms Bakulich’s offending

[5]                 Ms Bakulich worked for Tipene Funerals as a funeral director. She dealt directly with bereaved families, and with the cremation, burial or interment of their loved ones.

[6]                 In 2017, a bereaved family paid Ms Bakulich $3,000 so that she would ensure a deceased person’s interment in a zinc-lined casket. Instead, Ms Bakulich wrapped the deceased in plastic and placed them in an unlined casket. She kept the money, applying it to other purposes. In this way, Ms Bakulich committed the first offence of obtaining by deception. Her offending was only discovered in 2023, when the casket was disinterred following Cyclone Gabrielle.

[7]                 In 2020, Ms Bakulich undertook to inter another deceased family member in a zinc-lined casket. However, she placed the deceased directly into an unlined casket, without any protective covering aside from clothing, committing the offence under   s 150(a) of the Crimes Act 1961 headed “misconduct in respect of human remains”. The essence of the offence under s 150(a) was the failure to use an appropriately sealed casket for the purpose of interment. The police did not allege that Ms Bakulich had offended under s 150(b), which is the other limb to that offence, requiring improper or indecent interference with or indignity to a dead human body or human remains. This offending was also discovered in 2023, when the casket was disinterred following Cyclone Gabrielle.

[8]                 In  2021,  a  third  family  was  affected  when,  following  an   interment,   Ms Bakulich obtained $7,000 from them by deception. She falsely asserted that the

Ministry of Health required to be paid that money because the funeral had breached COVID-19 regulations.

[9]In 2022, Ms Bakulich committed a third offence under s 240, by obtaining

$1,150 from another bereaved family by pretending it was required for the purpose of treating the deceased for COVID-19.

[10]              During August 2022 to January 2024, Ms Bakulich deceived six separate families into believing their loved one needed COVID-19 immunisation. Ms Bakulich received between $750 and $850 for each of these “immunisations”, which of course were not required. Also, Ms Bakulich obtained $1,302 from one of these families on the basis that $552 was to be on-paid for Auckland Council fees. No on-payment was made.

[11]Further, during the above period, Ms Bakulich obtained amounts of $750 and

$500 from another family, having led them falsely to believe injections for genital infections were required.

The sentence

[12]              In assessing culpability, the sentencing Judge identified several aggravating features. That is, the offending involved multiple instances of offending committed over an extended period, it was premeditated, it involved a breach of trust and the victims suffered reasonably serious financial loss. It was noted that the offending caused deep emotional consequences and went well beyond the identified victims, impacting other families that had received Ms Bakulich's services.

[13]              The Judge adopted a starting point of two years and six months’ imprisonment for the dishonesty offending. This was uplifted by six months for the charge of misconduct with human remains. This brought the adjusted starting point, adopted to reflect all offending for sentence, to three years.

[14]              The Judge then declined to reduce the adjusted starting point on the basis of good character. He noted a prior conviction for dishonesty, stemming from 2004 and resulting in no penalty (beyond conviction and an order to pay $15,520 in reparation),

and that the offending for sentence spanned several years. However, the Judge did reduce the adjusted starting point:

(a)by 20 per cent, in respect of her guilty pleas entered at case review; and

(b)by five percent, for her offer to pay reparation (which the Judge took up) and on the basis that this suggested “an element of remorse”.

[15]              The latter reduction was applied after the Judge commented in terms suggesting Ms Bakulich was not particularly remorseful. I return to those comments below.

[16]              Ultimately, the Judge imposed sentences amounting in combination to two years and three months’ imprisonment, along with an order for reparation in the sum of $14,750.

Leave to adduce evidence on appeal

[17]              For Ms Bakulich, Ms Gray seeks leave to adduce material contained in a report issued  by  a  consultant  psychiatrist,  Dr  Karl  Jansen.   Dr  Jansen  interviewed   Ms Bakulich in prison, around four months after she was sentenced.

[18]              Also, at the hearing of Ms Bakulich’s appeal, Ms Gray tendered (without opposition) correspondence from the prison at which Ms Bakulich is being held, indicating she has twice sought voluntary segregation from other prisoners.

[19]              In Carroll v R, the Court of Appeal observed that cultural reports, offered at sentencing under s 27 of the Sentencing Act 2002, “should not be produced for the first time on appeal”, and that “the proper course may be to remit the matter” for re-sentencing.6 However, in that case neither party wanted the matter remitted, and the Court found information in a cultural report, which had not been before the sentencing Judge, to be material to the proper sentencing outcome. It admitted the report accordingly.7

6      Carroll v R [2019] NZCA 172 at [8].

7 At [11].

[20]              I intend to take a similar approach to the additional information in this appeal, admitting it to the extent it has a material impact on the appeal’s merits.

Ms Bakulich’s mental health and the compounding effect of publicity

[21]              For Ms Bakulich, Ms Gray submits that the sentence was disproportionately severe8 and greater reductions were necessary, due to mental illness and related distress. She says this has been exacerbated by widespread and intense negative publicity surrounding this case.

The material before the sentencing Judge

[22]              Ms Bakulich’s health did not feature, to any significant extent, in  the  District Court sentencing.

[23]              The written submissions of counsel for Ms Bakulich (not Ms Gray) attached three brief letters, written by a doctor, a psychiatrist and a social worker working for a South Auckland healthcare service. The doctor’s letter suggested Ms Bakulich’s mental health difficulties involved anxiety and panic attacks, and had arisen in response to publicity of her prosecution. And the psychiatrist’s letter simply stressed the importance of her continued participation with mental health therapy. But the letters were provided with reference to the submission of counsel that home detention, should it be available, would assist Ms Bakulich to “continue engaging in ongoing mental health support”. Counsel did not suggest any need for sentencing adjustment to account for the impact of sentencing, in particular a sentence of imprisonment, upon Ms Bakulich’s health.

[24]              It is unsurprising, given the modest supporting material and the written submissions of Ms Bakulich’s former counsel, that the sentencing Judge made no reference to Ms Bakulich’s mental health.

8      Section 8(h) of the Sentencing Act 2002 imposes an obligation on the sentencing Court to take into account any “particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe”.

Dr Jansen’s report

[25]              Dr Jansen describes Ms Bakulich as suffering from chronic complex post-traumatic stress disorder (PTSD) which includes signs and symptoms of depression and anxiety. His report records her account of recurrent intrusive memories of past trauma, hypervigilance, panic attacks, trauma-related avoidance behaviours and flashbacks. He says it seems the original trauma was her mother’s behaviour (which is outlined in the report on the basis of an account given by Ms Bakulich’s older sister) during her childhood. And that subsequent events have repowered the PTSD.

[26]                  Dr Jansen says Ms Bakulich has developed persecutory ideas to the extent that she is concerned about persons putting toxic substances into her food and drink, and that she feels very unsafe.

[27]              Dr Jansen acknowledges that he did not know Ms Bakulich prior to her imprisonment. But he considers it likely that her imprisonment has negatively affected her mental health, partly because it ended the therapeutic process with which she was engaged in the community, and partly due to retriggered PTSD and a possibility of ADHD and/or frenetic activity as a defensive strategy.

Principles

[28]              In L v R, the Court of Appeal found it “uncontroversial that mental illness can be relevant to sentencing both retrospectively and prospectively”, as a relevant factor in assessing culpability and, separately, the future subjective impact of the starting point on the offender.9 Prospective effect may be found where a sentence might weigh more heavily on the defendant “due to a disorder, or where an appropriate sentencing response ought to involve a significant therapeutic element to treat the disorder so that it does not continue”.10

9      L v R [2019] NZCA 676 at [48], in the latter respect citing Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [45].

10     L v R, above n 9, at [49].

Assessment

[29]              For the Crown, Ms Nihill submits that L v R was a highly unusual case and might be distinguished. There, a 20 per cent sentence reduction was applied to an appellant with a diagnosis of a factitious disorder, who had complex mental health needs and had been subject to violent assaults while in custody, therefore opting for voluntary segregation. In contrast, Dr Jansen’s report is not definitive, and is hampered by his lack of contact with Ms Bakulich prior to her sentencing.

[30]              I accept that the force of Dr Jansen’s observations is diminished by his lack of prior contact with Ms Bakulich. But his observations nevertheless serve to expand upon material that was not put clearly before the sentencing Judge, and they indicate a  pre-sentencing  health  condition  of  significant  concern  has  worsened   upon Ms Bakulich’s imprisonment. And I note that Ms Bakulich has repeatedly sought segregation from other prisoners.

[31]              I therefore also accept that Ms Bakulich’s experience of life in prison is impacting upon her more severely than other prisoners.

[32]              This might, to some degree, have been expected when Ms Bakulich was sentenced. Ms Bakulich became well-known in the community upon agreeing to appear on television, going about her employment as a funeral director. The context was that of a reality television series, which featured the senior members of Tipene Funerals in their work, under the title “The Casketeers”. It could be expected that, having placed herself, or at least having been placed, in the public eye, Ms Bakulich would respond by ensuring she acted professionally, and at least honestly, at all times. She should have known, when she did not act professionally and honestly, that her conduct might well lead to substantial media attention and community criticism.

[33]              However, some of the media and social media coverage that was generated was attached to submissions. There has been inaccurate reporting. And the non-traditional media publicity has been vitriolic. While some of that too might have been expected, the additional factor in this case is Ms Bakulich’s pre-existing susceptibility to stress and vulnerability.

[34]              Overall, I am satisfied Ms Bakulich was entitled to a meaningful reduction from the adjusted starting point, calibrated to account for the disproportionately severe impact upon her of a sentence of imprisonment, arising because of her poor pre-sentencing mental health and the compounding effect of vitriolic publicity of her offending and personal deficiencies.

Ms Bakulich’s family background

[35]              Ms Gray submits that the Judge should have applied a further reduction relating directly to Ms Bakulich’s upbringing and more recent family background, including exposure to  domestic  violence  and  dysfunction.  She  referred  in  particular  to  Ms Bakulich’s mother encouraging dishonesty and placing an unrealistic expectation on the need to have surplus money, the death of her father shortly before the offending commenced, and a significant relationship breakdown that took place once the period of offending was well under way.

[36]              For such a reduction to be applied, there needs to have been a causative contribution to the offending.11 I do not accept that general family encouragement of dishonesty and the acquisition of money should be viewed, without more direct involvement in crime, as causatively connected to property offending. This would tend to undermine sentencing purposes such as the holding of offenders to account for harm done, and the promoting in offenders of a sense of responsibility. A significant family bereavement is similarly unconnected, causatively, to dishonesty offending.

[37]              In the present case, the family  background  may  well  be  at  the  heart  of Ms Bakulich’s mental health difficulty. And that difficulty requires recognition because it makes her imprisonment disproportionately severe. But it does not require discrete recognition.

Genuine remorse?

[38]              As indicated above, the sentencing Judge applied a five per cent reduction for Ms Bakulich’s offer to pay reparation (which the Judge took up) and on the basis that

11      Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].

this suggested “an element of remorse”. But this was after the Judge commented in terms suggesting Ms Bakulich was not particularly remorseful. The Judge’s comments focussed upon the extended period of years over which Ms Bakulich offended.

[39]              Ms Gray took issue with the latter comments. She referred to the Provision of Advice to Courts (PAC) report, prepared by a Probation Officer for the purpose of informing the sentencing exercise. The Officer commented in that report as follows:

Ms Bakulich accepted that she had no excuse for repeatedly deceiving people who were vulnerable. Throughout both interviews and during other discussions via telephone, Ms Bakulich consistently presented as deeply ashamed and genuinely remorseful. She was fully aware of how much she had let down people who trusted and respected her.

[40]              I accept that it is possible for offenders to succumb to offending, in a particular context which may continue over a lengthy period, without reflecting upon the serious effects of their offending upon others. And yet that such offenders may become genuinely remorseful when the context changes. This is particularly so when the offending has not been detected while it has continued.

[41]              I further accept that Ms Bakulich is genuinely remorseful. She persuaded the PAC report writer of her genuine remorse during multiple interviews and telephone discussions. I do not consider the period of her offending to provide a sufficient reason to discount the writer’s account.

Assessment overall

[42]              My assessment is that a meaningful reduction from the adjusted starting point should have been applied, because Ms Bakulich’s poor mental health and her need for uninterrupted therapeutic support would likely make (and have made) her prison sentence disproportionately severe. Further, the five per cent reduction for her reparation offer, stated to reflect an element of remorse but in terms that indicated she was not genuinely remorseful, was for that reason inadequate.

[43]              Combining these flaws in the sentencing, it was manifestly excessive. A further reduction of 15 per cent should have been applied.

Result

[44]              Had this further reduction been applied, the notional end sentence would have been one of one year and nine months’ imprisonment. A notional sentence of that length would have qualified for conversion to a sentence of home detention.

[45]              Ms Gray confirmed that the address the subject of the PAC report remains available, except that one to two days’ notice would be required. In my view, home detention at that address should have been imposed.

[46]              The usual approach, when converting a notional prison sentence for the purpose of imposing one of home detention, is generally to halve the stated period. 12 This accounts for the fact that a short-term prison sentence carries a mandatory remand period, commencing upon the expiry of half of the sentence, but a home detention sentence does not.

[47]              Also, I take into account that upon this appeal being granted with the substitution of a sentence of home detention, Ms Bakulich’s sentence will commence on the day that substituted sentence commences.13 To  date, she has served around  six months of the prison sentence imposed in the District Court. On that basis, rather than the period of around 10 months’ home detention I would have imposed, I will substitute a sentence of four months’ home detention.

[48]Accordingly, I make the following orders:

(a)Ms Bakulich’s appeal is allowed.

(b)Her original sentence of imprisonment is quashed and replaced with a sentence of four months’ home detention, to:

(i)commence on 8 October 2025;

12     Hose v NZ Police [2025] NZHC 2260 at [15]–[18].

13     Sentencing Act 2002, s 80X.

(ii)be served at the address specified in the PAC  report dated      2 April 2025; and

(iii)be subject to the standard post-detention conditions set out in  s 80O   of   the   Sentencing   Act,   which   will    expire   on   8 February 2026.

Johnstone J