BAILEY v R [2022] NZCA 335

BAILEY v R [2022] NZCA 335 [26 July 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA596/2020[2022] NZCA 335BETWEEN THEODORE ANTHONY BAILEYAppellantAND THE QUEENRespondentHearing: 10 May 2022Court: Clifford, Venning and Moore JJCounsel: D P H Jones QC for AppellantM R L Davie for RespondentJudgment: 26 July 2022 at 10.30 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The application to adduce further evidence is granted.C The appeal is dismissed.___________________________________________________________________REASONS OF THE COURT(Given by Venning J)[1] Theodore Bailey pleaded guilty to a charge of aggravated assault,1 namelyassault on a constable with intent to obstruct the constable in the execution of his duty.1 Crimes Act 1961, s 192(2).[2] Judge Paul declined Mr Bailey's application for a discharge without convictionand sentenced him to 80 hours' community work.2 Mr Bailey appeals the refusal todischarge him without conviction.[3] Such appeals are characterised as an appeal against conviction and sentence.3[4] The appeal was filed six months out of time as Mr Bailey mistakenly filedthe initial appeal in the High Court. The Crown does not oppose an extension of time.The time for filing the appeal is extended accordingly.Background[5] On 1 March 2019, when Mr Bailey was 20, he was at a dance event held at theFerguson Bar on the Massey University campus at Albany. A team policing unit waspresent given that approximately 1,500 persons were in attendance. In total nine or10 officers were at the scene. At approximately 11.30 pm bar security staff ejectedMr Bailey from the bar as he was intoxicated. He was trespassed from the venue.The police became involved. Constables Bailie and Murphy walked Mr Baileybackwards towards an area where taxis and Ubers were operating from. On theirevidence, at some point Mr Bailey stopped walking and said "I'm not leaving", pushedboth constables in the chest and sought to go past them to re-enter the venue.[6] Constable Bailie arrested Mr Bailey. That involved putting him to the groundto restrain him and applying handcuffs. Mr Bailey did not co-operate. He refused toallow himself to be handcuffed. He thrashed his arms and legs about in an attempt tobreak free. Constable Govinder and Senior Constable Wilson came to assist thearresting officers.[7] During the course of the officers' attempt to apply handcuffs to Mr Bailey,Mr Bailey punched Senior Constable Wilson to the face knocking him backwards.As a result of Mr Bailey's punch Senior Constable Wilson suffered a fractured nasalsocket, swelling and a broken tooth. He was taken by ambulance from the scene,2 R v Bailey [2020] NZDC 9699 [Judgment under appeal].3 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]–[8]; and Criminal Procedure Act 2011,ss 229 and 244.required hospital treatment overnight and was unable to return to work for a week asa result of his injuries.District Court decision[8] In assessing the gravity of the offence, Judge Paul noted the seriousness of theassault and resultant injury to Senior Constable Wilson.4[9] The Judge then rejected a submission that he should give Mr Bailey credit forgood character, referring to reports from Police National Intelligence Application(NIA) records relating to past police interaction with Mr Bailey.5 The NIA entriesrecorded three past incidents although no charges had been laid.6[10] Although the Judge noted Mr Bailey's youth and that, following the offending,he had undertaken voluntary community work with Te Rangimarie Charitable Trustand had attended the alcohol and other drug programmes operated by Community,Alcohol and Drug Services (CADS), he still assessed the overall gravity of the offenceas moderately serious.7[11] As to consequences, Judge Paul noted that Mr Bailey's employment was notat risk.8 Nor did he consider there was any evidence that Mr Bailey's right to travelwould be affected by the entry of a conviction as opposed to the circumstances ofthe offending.9 The Judge was satisfied the consequences of conviction were not outof all proportion to the gravity of the offending.10Appeal points[12] In support of the appeal Mr Jones QC submitted that, in declining theapplication for discharge, the Judge erred by:4 Judgment under appeal, above n 2, at [42]–[43].5 At [23] and [38]–[40].6 At [27]–[30].7 At [12], [16], [43] and [50].8 At [45].9 At [44].10 At [48].(a) accepting and relying on the NIA information to conclude Mr Baileywas not of good character;(b) failing to take into account or give proper weight to the mitigatingfactors, including good character, which meant the Judge's assessmentof gravity of the offending was wrong;(c) appearing to consider the fact the person assaulted was a policeman wasan aggravating factor, notwithstanding that was an essential element ofthe offence under s 192(2) of the Crimes Act 1961;(d) giving insufficient weight to Mr Bailey's youth, rehabilitative effortsand remorse; and(e) incorrectly assessing the direct and indirect consequences ofconviction. Given the earlier failings the Judge's final assessment as toproportionality was flawed.Further evidence[13] Mr Bailey's appeal was previously before the Court for hearing on13 May 2021. Both parties sought to adduce further evidence. Mr Jones sought toadduce evidence on Mr Bailey's behalf about the circumstances of the offendingintended to show it was less serious than the District Court Judge had found it to be.The Crown responded with evidence from the arresting officers intended to show itwas serious offending of its kind. As the witnesses were not present, the Courtadjourned the appeal at Mr Jones' request.11[14] Mr Bailey has produced evidence from his friend Joshua Whitford and hasprovided two affidavits himself. In the first he set out the incident from his pointof view. In the second more recent one, he produced information regarding the effectof the conviction on his ability to travel freely to Australia. As noted, the Crownresponded with affidavits from Constables Bailie and Murphy, and an affidavit of11 Bailey v R CA596/20, 13 May 2021.Senior Sergeant Stainton, annexing the NIA reports and a job sheet relating to one ofthe past incidents.[15] Mr Bailey was cross-examined, as were Constables Bailie and Murphy.The Court was also provided with CCTV footage from above one of the entrances tothe Ferguson Bar, the bar in issue. The CCTV footage showed Mr Bailey beingconfronted by the police officers and being walked backwards towards the Uber/taxiarea, although it did not show the incident when Mr Bailey was arrested during whichSenior Constable Wilson was assaulted.[16] In his affidavit Mr Bailey sought to explain his confrontation with the police.He had lent his credit card to Mr Whitford to buy a round of drinks earlier in theevening and had not retrieved the card. After he was ejected from the bar, he was notallowed back in. His phone was out of battery and he was unable to contact any of hisfriends or to order an Uber home. He said that was the reason he tried to head back tothe bar.12 Mr Bailey said he attempted to explain his situation to the police officersbut they did not listen to him and continued to walk him away from the bar for about50 to 60 metres at least.[17] Mr Bailey said he became frustrated and, in the words from his affidavit, "I putmy hands out and touched the officers". He was then arrested and taken to the ground,and it was in the course of that that he struck out and hit Senior Constable Wilson inthe face. He said he did not intend to injure the constable at the time. Mr Baileyhimself ended up with a black eye and cuts and bruises.[18] Both Constables Murphy and Bailie gave evidence. In their affidavits theydenied that Mr Bailey had advised them he wanted to return to the bar to get his card.They said if he had advised them of that they would have arranged for his friend tomeet them outside the venue. Constable Murphy made the point that neither of themoffered any physical signs they were threatening Mr Bailey before he pushed them inthe chest. He was able to strike them in their chests because they had not adopted afrightening or threatening physical stance.12 Mr Bailey's evidence that his friend had his card is confirmed by Mr Whitford's uncontestedevidence.[19] During cross-examination Mr Bailey repeated that he told the police officersabout his bank card and that he wanted to get home. In re-examination he said thatthe CCTV camera showed him pointing with his arm towards the bar, where his matesand card was.[20] In the course of cross-examination Mr Bailey accepted that it "may be" that hegave the officers a hard shove to their chests before they tried to arrest him. He alsoaccepted that the officers had said something like "[c]ome on man, all you need to dois leave", or something like "[y]ou've been ejected, you've been warned, you've beenasked to leave – all you need to do is leave", and that if he did not leave he would bearrested for trespass.[21] Under cross-examination both officers confirmed the evidence from theiraffidavits. They denied Mr Bailey had told them that he needed to get his card backfrom his friend to get home. Constable Bailie had carried out a question and answersession with Mr Bailey after his arrest. He recorded the exchange as follows:Q. Why did you punch the police officer?A. Because I was getting detained for no reason and I was under threatfrom police officers.Q. Did the police officers tell you to leave?A. Yes, but with their hands. I was never asked politely to leave thepremises and I was smacked before asked.Q. How much alcohol have you had tonight?A. Maybe seven to nine cans.Q. What alcohol?A. Bourbon.[22] Having reviewed the CCTV footage and having seen and heard Mr Bailey andConstables Bailie and Murphy give evidence, we prefer the evidence of the officers asto the circumstances in which Mr Bailey came to punch Senior Constable Wilson inthe face. We do so for the following reasons:(a) The officers' evidence is inherently more reliable. They were both onduty at the time. Their evidence is consistent. Against that, Mr Baileywas under the influence of alcohol that night having consumed on hisown admission seven to nine cans of bourbon. He had also been ejectedfrom the Ferguson Bar because of his intoxicated state.(b) Mr Bailey's gesture with his arm is equally consistent with anintoxicated person responding and throwing out his arm whenconfronted by the police. Notably he did so at about the time when thetwo officers became involved. Further, the arm he threw out was hisleft arm, gesturing away from the bar rather than towards it as he said.(c) Mr Bailey accepts that he was frustrated at having been trespassed fromthe bar. That emotion influenced his subsequent actions and makes itmore likely he acted in the way the officers described, and withoutexplanation.(d) The officers had no reason to be aggressive towards Mr Bailey.They were walking him out and were caught off guard whenhe stopped. He then initiated the assault by pushing them both in thechest, including the female officer. It was only after that that hewas arrested.(e) In his affidavit Mr Bailey had sought to minimise the original assaulton the police officers as a "touch". In cross-examination he acceptedthat he used an open palm push to their chests and accepted that it"may" have been a hard shove.(f) When Mr Bailey was spoken to by the police officer shortly after theincident, he said nothing to the officer about the reason he nowadvances for wanting to return to the bar.(g) In the same interview Mr Bailey said he was smacked before he wasasked to leave. That is plainly wrong. He did not suggest that in hisaffidavit or in his evidence before this Court.[23] We find that on the night, Mr Bailey was badly affected by alcohol, so muchso that he was ejected from the bar. He refused to accept that and tried to re-enter thebar and was turned away again. He was very frustrated. He was then confronted bythe police and walked backwards towards the Uber/taxi area. His frustrationboiled over. He stopped. The officers stopped. He then assaulted them by pushingthem both in the chest. They then sought to arrest him.[24] His frustration boiled over to anger and he lashed out at the officers andpunched Senior Constable Wilson, who by that stage had come to the assistance ofthe arresting officers, in the face.Submissions[25] First, Mr Jones submitted the Judge fell into error by referring to theNIA reports.[26] Next, he submitted that the Judge failed to take into account or give properweight to the mitigating factors and as a consequence his assessment of the gravitywas wrong.[27] Mr Jones submitted that Mr Bailey's youth was a factor the Judge should havetaken into account. It is widely acknowledged that youths are more likely to actirrationally and emotively with impulsive and aggressive behaviour.13 Rehabilitationis important for young offenders.[28] Mr Jones next emphasised that Mr Bailey had taken a number of significantsteps to rehabilitate himself. In Mathieson v Police, this Court consideredrehabilitation should be taken into account in the assessment of the gravity ofthe offending.14 Mr Bailey has done 56 hours volunteering at the Te Rangimarie Trust13 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].14 Mathieson v Police [2019] NZCA 406 at [15]–[19].and completed three courses with CADS and engaged in alcohol counselling andanger management. He has also expressed remorse for the injuries caused to SeniorConstable Wilson. Mr Jones made the point that Mr Bailey is now in gainfulemployment and obviously well thought of by his employer who provided a referencefor him. Since the incident he has completed his apprenticeship.[29] Mr Jones submitted the gravity of the offending could properly be categorisedas low. The consequences of convictions would be out of all proportion.Discussion[30] This Court has confirmed the approach to take to an application for discharge.It involves a three-step process. In this case the Court is required to:15(a) assess the gravity of the offence which involves taking into account allaggravating and mitigating features of the offending and Mr Bailey;(b) identify the direct and indirect consequences for Mr Bailey ofconviction; and(c) determine whether the direct and indirect consequences of convictioncan be said to be out of all proportion to the gravity of the offending.This may include the purposes and principles of sentencing in ss 7 and8 of the Sentencing Act 2002 and the aggravating and mitigating factorsrelating to the offence and offender prescribed by s 9.16[31] If the Court is satisfied the proportionality test is met then the discretion unders 106 is engaged, although it would be a rare case in which the discretion is thenexercised against an applicant for discharge.1715 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [14].16 At [12].17 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [12]; and Blythe v R, above n 15, at [13].Gravity of the offending[32] As we indicated to counsel, we accept Mr Jones' submission that the Judgeerred by accepting the unverified material in the form of reports from the NIA policedatabase relating to Mr Bailey to conclude that Mr Bailey was not of good character.We agree that the NIA reports are different to the record which exists where adefendant has previously been granted diversion.18 In an appropriate case, theinformation from the NIA about the past behaviour may be so clear and compelling asto be appropriately taken into account. That is not the case here.[33] We approach consideration of the gravity of the offending afresh.[34] Mr Jones submitted Mr Bailey was entitled to an allowance for good characterwhen the Court was assessing the gravity of his offending. Putting the NIA reports toone side for these purposes, what can be said is that Mr Bailey is before the Court withno convictions. However, at the age of 20, Mr Bailey is not able to point to anyparticular contributions that he has made to the community or society generally. In hiscircumstances, any recognition for Mr Bailey's lack of convictions would necessarilyhave been modest. We are satisfied it would not have materially altered the assessmentof the gravity of the offending.[35] Mr Jones emphasised that when he committed the offence, Mr Bailey was only20 years old. While youthful impetuosity may explain or mitigate the gravity of theoffending in some cases, a major contributing factor to the offending in this case wasthat Mr Bailey was intoxicated, which is not a mitigating factor.[36] Further, while we accept that Mr Bailey has taken steps towards hisrehabilitation which are to his credit, his personal circumstances remain only part ofthe assessment of the gravity. The incident itself was serious. It commenced with anunprovoked assault on police officers. While Mr Bailey was not charged with thoseassaults, the injury to Senior Constable Wilson occurred during the subsequent attemptto arrest him when Senior Constable Wilson had cause to assist his fellow officers.18 Millar v R [2019] NZCA 570 at [33].[37] Mr Bailey had a number of opportunities to de-escalate the situation andco-operate with the police officers rather than to continue to react violently andaggressively in the way he did. He was badly affected by alcohol. He did not complywith the police direction. Despite accepting in cross-examination that the officers hadsaid he had been trespassed and all he had to do was leave, he refused to do so andconfronted the officers rather than continue to be directed towards the exit. He pushedout at the police officers and then, rather than allowing himself to be arrested, hecontinued to struggle and lash out at the police officers so that he had to be takento ground. He then did more than just lash out at Senior Constable Wilson.He punched him directly in the face. It is also relevant that the injuries caused toSenior Constable Wilson were serious. They obviously affected him badly.[38] While we accept Mr Jones' submission that the fact the attack was on a policeofficer cannot be double counted as an aggravating feature because it is a constituentelement of the offence, an aggravated assault is more serious than a common assault,which must inform the assessment of the gravity of the offending.[39] On a scale of low, moderate and serious, without any regard to the NIA reports,and after taking account of Mr Bailey's youth and the steps he took subsequently,including his expression of remorse, we still consider the offending is properlyassessed as being moderately serious offending of its kind.The consequences for Mr Bailey[40] It is apparent that the conviction has not affected Mr Bailey's employment.He has completed his apprenticeship and remains supported by his employer.[41] The principal submission as to the consequences of convictions was thepotential effect on Mr Bailey's ability to travel, particularly to Australia.[42] During the course of his cross-examination Mr Bailey accepted that he hadrecently travelled to Australia to see his brother. When he declared his conviction,the Australian authorities asked him if he had served any jail time and how long agothe incident was. Once he confirmed he had not been sentenced to jail, and told themit was three years ago, in his words, "[t]hey didn't seem too fussed about it".The interview at the border took five minutes.[43] Mr Jones suggested the position may be different if Mr Bailey wanted to stayand work in Australia and every trip would be conditional on a particular borderofficial deciding whether to let him into the country. But with respect thatis speculative. There is no evidence as to how likely it is that Mr Bailey will be deniedentry to Australia. His recent experience would suggest it is unlikely that he will bedenied entry to Australia. There is no basis for this Court to find there is a real riskthat a conviction of this nature (with the circumstances properly explained) willseriously impede Mr Bailey's ability to travel to Australia.19[44] Mr Jones also emphasised that as a young man Mr Bailey will have aconviction for an assault. That is correct, but as his recent experience with theAustralian authorities show, when all the matters are taken into consideration,including the way the District Court dealt with the matter and the length of time thathas passed since the incident, Mr Bailey may continue to improve his character. It willbe up to him whether he allows the conviction to affect him long-term or not.[45] We assess the consequences of a conviction as low in Mr Bailey's case.It follows that it cannot be said that the consequences of a conviction will be out of allproportion to the gravity of the offending.Result[46] The application for an extension of time to appeal is granted.[47] The application to adduce further evidence is granted.[48] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Appellant19 R v Taulapapa [2018] NZCA 414 at [22].