[1] Jamie Adsley Baillie appeals against a sentence of two years and three months imprisonment imposed by Judge Spear in the District Court at Hamilton on 13 April 2010 on the ground that it is manifestly excessive.[1] The appellant entered guilty pleas to charges of wilfully attempting to pervert the course of justice and assault with intent to injure on the morning of trial, 6 October 2009.
[2] The appellant also seeks an extension of time to appeal which is not opposed by the Crown.

Background facts

[3] The agreed summary of facts for sentencing purposes explains that the complainant (the victim of the assaults by the appellant and his co-offender) had been assaulted by an associate of the appellant and had subsequently made a statement to the police about that assault. The complainant was shortly due to give evidence in court about the previous assault.
[4] At about 10.30 p.m. on Saturday 4 April 2009 the appellant and his co-offender drove to the complainant’s home in Te Aroha. They went to the complainant’s address for the purpose of attempting to dissuade him from giving evidence in relation to that matter.
[5] Mr Baillie was a friend and longstanding acquaintance of the complainant. The co-offender did not know the complainant but was taken to the complainant’s address by Mr Baillie to provide assistance. Both had been drinking. Mr Baillie raised the topic of the forthcoming court case. He told the complainant that the man who accompanied him, Mr Tong, was a “tough guy” and that he must drop the assault charges or he would be beaten up. Mr Tong removed his shirt. Both the appellant and Mr Tong punched the complainant repeatedly in the forehead, left eye and temple area. The complainant ultimately ended up on the floor in front of the couch in the lounge. While he was curled up on the floor in a foetal position Mr Baillie kicked him in the ribs. Mr Tong grabbed the complainant’s legs and told him he would break them. He was threatened that he would be killed if he did not drop the charges. Mr Tong produced a small silver pocket knife from his trouser pocket, opened the blade and started waving it at the complainant. The complainant eventually escaped, hid in a paddock for a period of minutes until he heard his attackers drive off, and then went inside and called the police.
[6] The complainant suffered a swollen mouth, a small cut above his right eye and an eight centimetre graze to the left of his chest.

Sentencing judgment

[7] Judge Spear said[2] that this was serious offending of its type and was the type of offending that strikes at the very heart of justice, and that those who interfere with the administration of justice must be dealt with firmly in a way that sends a clear message that the courts will simply not tolerate this type of offending. He said the principal objects of sentencing the appellant and the co-offender were to emphatically denounce their conduct and to deter others from acting in such a way. He said the offending standing by itself required a starting point of three years imprisonment. In respect of the appellant he applied an uplift of nine months from the three years starting point because he was the instigator.
[8] He noted that the guilty pleas were not entered at an early stage but he made a reduction of twelve months which he said was just over twenty five per cent (in fact 26.7 per cent).
[9] The Judge allowed a further reduction in the sentence of six months for the appellant’s participation in a restorative justice conference with the complainant which had resulted in the men substantially making up their differences, and for the appellant’s genuine remorse.
[10] The end sentence imposed was therefore two years and three months imprisonment which the Judge said[3] was the minimum sentence that could be imposed upon somebody who initiated such serious criminal offending. On the charge of injuring with intent to injure, the Judge imposed a concurrent sentence of eighteen months imprisonment.

Starting point

[11] Mr Boot first challenged the Judge’s approach to the starting point. He said that in accordance with this Court’s judgment in R v Taueki[4] any uplifts from the starting point are to be based on factors related to the offender, not the offending. Here the uplift of nine months applied by the Judge because Mr Baillie was the instigator of the offending, related to the offending. He submitted that the starting point of three years should have been adopted for both Mr Baillie and the co-offender, Mr Tong, on a parity basis.
[12] We agree that the Judge’s approach to setting the starting point was incorrect. The Judge was required to set the starting points separately for each of the appellant and the co-offender having assessed their respective roles in the offending. However, we accept the Crown’s submission that a starting point of three years and nine months imprisonment for the appellant’s role in the offending, while at the upper end of the available range, was justified.
[13] In the leading case of R v Hillman this Court said:[5]

Any attempt to dissuade a witness from giving evidence strikes at the administration of justice and must be met by the Courts with a stern response.

[14] The Court referred to three previous authorities and said:[6]

... in those three cases three years was taken as a benchmark for what was very serious offending of its kind.

[15] In R v Clutterbuck[7] this Court said that the decision in Hillman[8] clearly establishes a benchmark of three years imprisonment for relatively serious cases and a sentence in the range of eighteen months to two years for less serious cases.
[16] Two of the three cases referred to in Hillman which resulted in sentences of three years imprisonment were R v Ormsby[9] and R v Monika.[10] In Ormsby a witness was asked in a threatening way by a gang-affiliated offender to drop the charges. The threats succeeded. In Monika a house was said to be severely damaged and the occupants threatened. In both these cases, while there were threats of physical violence, no actual violence was inflicted, as it was in this case.

Period spend on electronic bail

[17] The second point taken for the appellant was that the Judge failed to make any allowance for the lengthy period the appellant had spent on electronic bail. He had been on electronic bail subject to a 24 hour curfew after spending forty days in custody, for a period of some 328 days. A letter from the police tendered to the Court confirmed there were no reports of serious EM bail breaches.
[18] While this Court has recognised that compliance with a restrictive bail regime can properly be treated as a mitigating factor,[11] any discount is not to be computed on a strict mathematical basis.[12]
[19] In this case the Judge allowed a discount of more than twenty five per cent for the guilty plea entered on the morning of trial. This was substantially in excess of the appropriate discount in accordance with R v Hessell[13] which would have been in the range of 5-10 per cent, applied at the end of the sentencing process. He allowed a further discount of six months for the appellant’s participation in the restorative justice conference which resulted in a total discount of eighteen months, or forty per cent. Any appropriate allowance for the period spent on electronic bail conditions was thus encompassed in the very generous discount allowed by the Judge from the starting point of three years and nine months imprisonment.

Result

[20] The end sentence of two years and three months imprisonment is not manifestly excessive.
[21] The application for an extension of time to appeal is granted.
[22] The appeal is dismissed.

Solicitors:
Gavin Boot Law, Hamilton for Appellant
Crown Law Office, Wellington for Respondent

[1] R v Baillie DC Hamilton CRI-2009-019-3220, 13 April 2010.
[2] At [16].
[3] At [22].
[4] R v Taueki [2005] 3 NZLR 372.
[5] R v Hillman [2005] 2 NZLR 681 (a 1992 decision) at [6].
[6] At [7].
[7] R v Clutterbuck CA372/1999, 17 November 1999.
[8] At [13].
[9] R v Ormsby CA80/79, 4 September 1979.
[10] R v Monika CA139/90, 20 November 1990.
[11] R v Cristia [2008] NZCA 19; R v Tamou [2008] NZCA 88 at [18].
[12] R v Faisandier CA185/00, 12 October 2000.
[13] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 (CA).

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