Bayley v The Queen - [2013] NZCA 278

IN THE COURT OF APPEAL OF NEW ZEALAND

CA779/2012
[2013] NZCA 278

BETWEEN	PHILLIPA PATRICE BAYLEY Appellant
AND	THE QUEEN Respondent

Hearing:	12 June 2013
Court:	Randerson, Courtney and Dobson JJ
Counsel:	W T Nabney for Appellant B D Tantrum for Respondent
Judgment:	3 July 2013 at 11:00am

JUDGMENT OF THE COURT

ALeave is granted to adduce further evidence on appeal.
BThe appeal is allowed.
CThe sentence of seven years imprisonment is quashed and a sentence of six years and six months imprisonment substituted.

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REASONS OF THE COURT

(Given by Courtney J)

Introduction

The appellant, Phillipa Patrice Bayley, was found guilty following a jury trial in the District Court at Tauranga on one charge of causing grievous bodily harm with intent to cause grievous bodily harm. The complainant was Ms Bayley’s sister, Ms Smith. Their relationship had long been acrimonious. After an evening out together an argument began at Ms Bayley’s home. Although Ms Bayley claimed that she was attacked first, it was accepted that she assaulted Ms Smith, using a stone chess piece to strike her about the head and face. At some point Ms Bayley’s pitbull terrier became involved in the attack. Ms Smith sustained serious, though not life‑threatening injuries to her face and head, some of which were inflicted by the dog.
Judge Wolff imposed a sentence of seven years’ imprisonment.[1] Ms Bayley appeals the sentence on the ground that it was manifestly excessive as a result of the Judge taking too high a starting point and imposing an uplift that was unwarranted.

Sentencing in the District Court

[1]R v Bayley DC Tauranga CRI-2011-070-3201, 5 November 2012.

At trial the Crown asserted that Ms Bayley had set the dog on Ms Smith. It was not necessary to prove that assertion for the jury to convict Ms Bayley, but how the dog came to be involved was a factor that would clearly be relevant at sentencing. Unusually, at the end of the trial the Judge elicited the jury’s view on the issue. The jury indicated that, although satisfied that the dog was involved, it was divided on whether Ms Bayley had instigated its involvement.
At sentencing the Judge referred to the jury’s indication and then went on to make findings regarding who started the incident, the nature of the dog’s involvement and the other factors relevant to identifying an appropriate starting point:
[6] At the end of the trial after the jury had delivered their verdict, I asked the jury whether they would be prepared to indicate to me whether their view was consistent with the view that I had formed. I said, “So in those circumstances, I am going to ask you if you would be prepared to tell me, to confirm that your verdict is consistent with my view, that the complainant was injured in all three ways and that the dog was deliberately set upon the complainant by the accused. That is the view I take of the evidence we have heard.…

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 Bayley v The Queen

Details

AGLC: Bayley v The Queen [2013] NZCA 278
Case: [2013] NZCA 278
Decision Date: 3 July 2013 at 11:00am

CaseChat Overview and Summary

Phillipa Patrice Bayley was found guilty of causing grievous bodily harm with intent to cause grievous bodily harm against her sister, Ms Smith, and sentenced to seven years imprisonment. Ms Bayley appealed the sentence, arguing that it was manifestly excessive due to the starting point being too high and the uplift for the dog’s involvement being unwarranted. The Court of Appeal granted leave for Ms Bayley to adduce further evidence regarding the age of the dog, which was found to be four months old at the time of the offence. The Court found that the starting point of seven years was within the available range, but the uplift for the dog’s involvement was not justified. The Court concluded that the sentence of seven years imprisonment was quashed and a sentence of six years and six months imprisonment was substituted.

The Court of Appeal considered the arguments made by Mr Nabney on behalf of Ms Bayley, who submitted that the seven-year starting point was too high due to the injuries not being life-threatening, Ms Bayley’s age and physical ailments, and the lack of premeditation. The Court found that the starting point was within the range available to the Judge, given the sustained and violent nature of the assault and the serious injuries sustained by Ms Smith. The Court also considered Mr Nabney’s argument that the uplift for the dog’s involvement was unwarranted, as the starting point already reflected all the injuries inflicted. The Court found that the Judge did not make clear the basis on which he was uplifting for the dog’s involvement, and it was not possible to treat Ms Bayley as more culpable on account of her failure to pull the dog off. The Court concluded that the starting point should have been seven years, with the deduction for Ms Bayley’s previous good record made from that.

The Court of Appeal allowed the appeal and granted leave for Ms Bayley to adduce further evidence regarding the age of the dog. The Court quashed the sentence of seven years imprisonment and substituted a sentence of six years and six months imprisonment. The Court found that the starting point of seven years was within the available range, but the uplift for the dog’s involvement was not justified. The Court concluded that the sentence of seven years imprisonment was quashed and a sentence of six years and six months imprisonment was substituted.

Orders