Bayley v The Queen
[2013] NZCA 278
•3 July 2013 at 11:00am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA779/2012 [2013] NZCA 278 |
| BETWEEN | PHILLIPA PATRICE BAYLEY |
| AND | THE QUEEN |
| Hearing: | 12 June 2013 |
Court: | Randerson, Courtney and Dobson JJ |
Counsel: | W T Nabney for Appellant |
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. If that is inconsistent with your view, please tell me how it is inconsistent, so that I can take it into account on sentencing.” I also then indicated to the jury that they did not have to answer that question and could leave me to form my own view, without their assistance.
[7] Madam Foreman returned and indicated, “Yes. The question about the dog. We all agree it was involved, but we differ. We cannot all agree on whether it was set upon.” I thanked the jury for that and indicated that I would take that division amongst them into account on sentencing.
…
[10] I am satisfied that the complainant did not start any incident with you, other than to have verbal discussion with you. That you pushed her first and then that grew into an incident where you have attacked her, both with the chess piece and, on my take of the facts, by putting and setting the dog onto her.
[11] Her evidence was that you in fact held the dog to her face, so that the dog could get a grip on her. She mentioned that in context of the recognition that she had had extensive surgery throughout her life on that part of her face and that appeared to be some particular bugbear that you had arising out of the history.
[12] The jury, plainly, did not unanimously share my view about the dog in that they seemed to have been divided into whether it had been set on, or whether it had not been called off. Either way, the extent and number of injuries to the complainant reveal that the dog was involved for a considerable period.
[13] I emphasise that it was a dog. In evidence and at the trial, for you it was always emphasised that his animal was a puppy. In the Probation Officers report the dog is still described as “a puppy”. The police when they arrived saw two dogs and they described them as “dogs”. The one that you described as a puppy, they saw with blood about its mouth to be visible. That dog is shown in photograph 30 in the exhibits produced to the jury. It is about 18 months old. It is on a couch. It is the height of the arms of the couch when sitting on the couch and it is the length [sic]. It is a dog that is almost mature and to describe it as “a puppy” and repeatedly describe it as a puppy is, in my view, not a particularly accurate description and tends to undersell the seriousness of the dog’s involvement in this incident.
[14] I am satisfied that given the nature of the seriousness of the injuries, the length of the incident, the fact that there were attacks to the head, that there was at least one weapon used, that is, the stone chess piece, but also the dog, depending on the view that that takes, that this offending falls within that serious category that is identified in determining a start point in R v Terewi [1999] 3 NZLR 62 (CA), as between five and 10 years.
Mr Nabney, for Ms Bayley, advised that at sentencing it was agreed that the starting point should fall within band 2 of R v Taueki, attracting a starting point of between five and ten years.[2] It is common ground that the Judge’s reference to R v Terewi was intended to be a reference to Taueki.
[2]R v Taueki [2005] 3 NZLR 372 (CA).
The Judge then turned to consider the appropriate starting point:
[15] The Crown contends for a sentence of start point of seven years, but for an uplift for the involvement of the dog, depending on the view that I take.
[16] The defence says that the start point is six years and that I should allow a modest reduction in that figure, because the jury verdict is explicable on the terms, that it was the complainant who commenced the incident and that your conviction is a result only of an overuse of self-defence.
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[20] Had the jury indicated that they were unanimous in their view about the dog being deliberately set upon the complainant, then I would have uplifted the sentence by a further 12 months. In the light however of their indication, but bearing in mind the dog was involved on any account for a long period and caused a large number of injuries, an uplift of six months is appropriate.
[21] That reaches a start point of seven with an uplift of six months, is a sentence of seven and a half years, but I allow you a credit of six months, because of your absence of previous sentences. I cannot, however, allow you any credit at all for remorse, or acceptance.
Was the sentence manifestly excessive?
Mr Nabney submitted that the seven year starting point was too high having regard to the circumstances of the offending. First, he pointed out that, whilst the injuries did require medical attention, they were not life-threatening; Ms Smith was discharged from hospital on 23 May 2011, the assault having occurred on the evening of 20 May 2011. Secondly, although the attack was a sustained one Ms Bayley was 55 years old with various physical ailments that must have constrained the level of violence she was able to inflict. Thirdly, there was no premeditation; the chess piece was simply close at hand and was not an inherently dangerous or lethal weapon.
We consider that the seven year starting point was within the range available to the Judge. Even allowing for the points that Mr Nabney made, this assault was sustained and violent and resulted in serious injuries. There was no error in placing it mid-way in the range provided for in Taueki.
Mr Nabney made two points regarding the uplift to reflect the dog’s involvement. The first was that the Judge wrongly treated the animal as a mature dog when it was, in fact, a puppy. Secondly, the starting point took into account all the injuries that Ms Smith sustained, including those inflicted by the dog and there was, therefore, no need for any further recognition of this factor through an uplift.
In her evidence Ms Bayley consistently referred to her dog as a puppy. As we have already set out, in sentencing the Judge rejected this characterisation and took the view that it was a mature dog. For the purposes of the appeal Ms Bayley sought leave to adduce further evidence in the form of an affidavit deposing that, at the time of the offence, the dog was four months old. This was not opposed by the Crown and we are prepared to grant the application.
We accept that a four-month-old dog is correctly described as a puppy. We do not, however, accept that there would have been any difference to the end result had the Judge known the dog’s age. The Judge’s conclusion regarding the dog’s involvement was determined mainly by reference to the injuries the animal inflicted. From the photograph produced at trial and referred to by the Judge in sentencing, the animal had the appearance of a relatively mature dog in terms of its size. The police officer reported seeing blood around its mouth and the evidence at trial was that some of the injuries were consistent with a dog attack. A puppy it may have been, but it did not appear either small or weak, which is the inference invited by the use of that descriptor.
However, we accept Mr Nabney’s second argument that the uplift was unwarranted. Mr Nabney submitted that the seven year starting point reflected all of the injuries that were inflicted, making any uplift for the dog’s involvement unwarranted. It is relevant to this argument that, prior to trial, the Judge had given a sentencing indication of seven years if the case proceeded to trial. He referred to this during sentencing, pointing out that he had given that indication on the assumption that the dog had played no part in the attack on Ms Smith. The sentencing indication must therefore have been made on the basis that all the injuries had been inflicted by Ms Bayley.
The Judge did not make clear the basis on which he was uplifting for the dog’s involvement. Self-evidently, Ms Bayley could only be liable for the dog’s acts either by setting the dog on Ms Smith or by failing to pull it off and restrain it. Given the jury’s indication, the Judge could not have proceeded on the basis that the dog had been set on the complainant. We infer that the Judge proceeded on the basis that Ms Bayley was responsible for the dog’s involvement by failing to pull it off Ms Smith or otherwise restrain it. However, it was not put to Ms Bayley that she could have done so. As a result, it is not clear whether she could have pulled the dog off and, if so, at what stage she could have done so. It is therefore impossible to say whether fewer or less serious injuries would have been inflicted had she done so. For this reason, it is not possible to treat Ms Bayley as more culpable on account of her failure to pull the dog off and we cannot see that her culpability should be viewed as greater than previously simply because some of the injuries were inflicted by the dog.
We conclude that the starting point of seven years was within the available range but that there was no basis on which to uplift it further. The starting point should have been seven years, with the deduction for Ms Bayley’s previous good record made from that.
Result
Leave to adduce further evidence is granted.
The appeal is allowed.
The sentence of seven years imprisonment is quashed and a sentence of six years and six months imprisonment substituted.
Solicitors:
Crown Solicitor, Auckland for Respondent
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