Bayly v R - [2013] NZCA 520

IN THE COURT OF APPEAL OF NEW ZEALAND

CA225/2013
[2013] NZCA 520

BETWEEN	GLENN GEORGE BAYLY Appellant
AND	THE QUEEN Respondent

Hearing:	15 August 2013
Court:	Harrison, Venning and Courtney JJ
Counsel:	P G Mabey QC for Appellant B D Tantrum for Respondent
Judgment:	29 October 2013 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

Glenn George Bayly was convicted on several charges of dishonesty in relation to a company of which he was a director and shareholder. The charges were contained in two separate indictments. In the first, there were 45 charges of theft by a person in a special relationship,[1] four charges of making or causing to be made a false entry in an account[2] and one of fraudulently using a document.[3] Mr Bayly pleaded guilty to these charges on the third day of a jury trial in the Tauranga District Court. The second indictment contained nine charges of making or causing to be made a false entry in an account,[4] one of fraudulently using or destroying property[5] and one of falsifying records.[6] He pleaded guilty to these prior to trial.
[1]Crimes Act 1961, ss 220 and 223.
[2]Crimes Act, s 260(a).
[3]Crimes Act, s 228.
[4]Crimes Act, s 260(a).
[5]Companies Act 1993, s 378(b).
[6]Companies Act, s 379.
Judge Callander imposed a sentence of two years eight months imprisonment on each count.[7] Although not said expressly, it is evident from the sentencing notes that the sentences were imposed concurrently.
[7]R v Bayly DC Tauranga CRI-2011-070-1626, 2 April 2013.
Mr Bayly initially brought this sentence appeal on the ground that the sentences were manifestly excessive as a result of the Judge taking too high a starting point and failing to allow sufficient credit for mitigating factors. Shortly before the appeal hearing, however, Mr Mabey QC assumed conduct of the appeal and filed submissions indicating that the appeal would be advanced on the ground that the Judge should not have sentenced without a disputed facts hearing in relation to the extent of loss to the company.

The offending

At the relevant times Mr Bayly was director and shareholder of Glenn Bayly Motorcycles Ltd, which traded as Moto GB. It had been incorporated in 2002. Initially the other director and shareholder was a Mr Perry. By 2006, however, the company had liquidity problems and Mr Perry wished to cease his involvement in it. A local businessman, Michael Fisher, purchased Mr Perry’s shares and became a director of the company. He advanced $458,122 to the company to repay existing bank loans and purchase a motor vehicle. Mr Fisher was not actively involved in the company; Mr Bayly continued to manage it as a salaried employee.
In mid-2007, Mr Bayly went overseas and Mr Fisher assisted in the
day-to-day running of the company. He found that there were significant numbers of overdue debts owed by the company to various creditors, including the finance company which financed the sale…

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 Bayly v R

Details

AGLC: Bayly v R [2013] NZCA 520
Case: [2013] NZCA 520
Decision Date: 29 October 2013 at 10.30 am

CaseChat Overview and Summary

Glenn George Bayly appealed against his conviction and sentence in the Tauranga District Court. He was convicted on several charges of dishonesty in relation to a company of which he was a director and shareholder. The court had to decide whether the sentence imposed was manifestly excessive and whether the judge should have directed a disputed facts hearing before sentencing. The Court of Appeal found that there was no error in the judge's decision and that the sentence was not manifestly excessive. The Court held that the issue raised by the appellant's counsel was not relevant to the determination of the sentence and therefore did not require a disputed facts hearing. The appeal was dismissed.

Orders