R v Connelly Ca

• Jurisdiction: New Zealand
• Judge: Potter J
• Judgment Date: 04 March 2010
• Neutral Citation: [2010] NZCA 52
• Docket Number: CA559/2009
• Court: Court of Appeal
• Date: 04 March 2010

BETWEEN

The Queen

Appellant

and

Les Tasos Connelly

Respondent

[2010] NZCA 52

Court:

Baragwanath, Potter and Ronald Young JJ

CA559/2009

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal by Solicitor-General against sentence of three years' imprisonment with a minimum period of imprisonment of six months, on a charge of wounding with intent to cause grievous bodily harm which occurred whilst C was a serving prisoner and the incident occurred in prison — consideration of appropriate approach in sentencing a serving prisoner for violent offences committed whilst in prison.

Apperances:

S B Edwards for Appellant

M B Dodds for Respondent

• A The application for leave to appeal is granted.

• B The appeal against sentence is allowed.

• C The sentence of three years' imprisonment is quashed and substituted with five years' imprisonment.

• D The minimum period of imprisonment of six months is quashed and substituted with 18 months.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Potter J)

Introduction

1 The Solicitor-General seeks leave to appeal against a sentence of three years' imprisonment, with a minimum period of imprisonment of six months, imposed on the respondent in the High Court at Whangarei on 14 August 2009. The sentence is cumulative on a ten-year sentence already being served, which in turn has a minimum period of imprisonment of six years. The respondent was charged together with four others (one of whom was discharged under s 347 of the Crimes Act 1961) with wounding with intent to cause grievous bodily harm. He entered a plea of guilty to that charge early in the trial and was subsequently sentenced by the trial Judge, Priestley J.

Issue on appeal

2 The issue raised by this appeal is whether the sentencing Judge properly applied the totality principle in reducing the sentence imposed on the respondent to three years' imprisonment.

Grounds of appeal

3 The Solicitor-General seeks leave to appeal on the grounds that the sentence is manifestly inadequate and fails to reflect the seriousness of the offending and the respondent's culpability. The Crown submits that, on a totality basis, an overall thirteen-year term for two serious grievous bodily harm offences with multiple aggravating features is at least two years too short. The Crown seeks an increase in the cumulative sentence to at least five years' imprisonment and also seeks a proportionate increase in the minimum period of imprisonment.

4 The respondent opposes the Crown's application. He submits that the sentencing Judge adopted a principled approach to sentencing and that the sentence imposed was within the proper discretion of the sentencing court.

The offending

5 The respondent, his co-offenders and the victim were all prisoners at the Northland Regional Corrections facility at Ngawha when the victim was attacked on 8 March 2008. The attack was incited and directed by one of the co-accused, Jonothan Poutai, who apparently believed that his former partner had had some form of sexual relationship with the victim while Mr Poutai was in prison. Mr Poutai did not assault the victim himself, but directed others to carry out the attack on his behalf. Three “waves” of assaults took place in the victim's cell carried out by the four offenders in pairs. In wave one, the respondent first cleared the victim's cellmate out of the cell, then he and a co-offender, Mr Hoeer, entered, shut the door and pushed and punched the victim about the head and body. (Priestley J described the injuries the victim sustained during this first wave as moderate rather than permanent as there was no evidence of bleeding at that stage).

6 The victim was seen sitting up on a bench in his cell after the first wave of the attack. Mr Poutai found this unacceptable. He expressed the view to the other offenders that the victim had obviously not “got the message”. Two of the other offenders, Mr Te Whata and Mr Briggs, then carried out the second wave of violence. They pushed the victim to the ground in the shower area of the cell, and kicked and stomped on him all over his head and body. Blood was seen to flow from the victim at that stage.

7 The third attack was carried out by Mr Hoeer and Mr Te Whata. The victim was repeatedly punched and kicked and hit in the head by Mr Hoeer with an improvised weapon made out of torch batteries inside a sock. These blows were audible to prisoners outside the cell in the communal areas of the wing. During this wave Mr Hoeer was also seen to try and snap the victim's leg. While the victim was lying on the floor Mr Hoeer twice lifted him by the shoulders a few feet off the ground and slammed his head into the floor.

Sentencing

8 Priestley J sentenced the respondent together with Mr Te Whata, who also entered a guilty plea to the charge of wounding with intent to cause grievous bodily harm.

9 After summarising the facts, the Judge referred to the serious injuries inflicted on the victim which had left him permanently damaged, with his life changed drastically. He also referred to the victim impact statements by the victim's two sisters, particularly their distress because the victim's memory was significantly impaired by the injuries he received.

10 The Judge then considered the personal circumstances of the respondent. He noted that he was 29 years of age, that he was born and lived with his whanau in the north, that he described his childhood as being “rough” and that after his parents separated when he was about twelve, his life appeared to have disintegrated.

11 The Judge recorded that the respondent has forty-eight previous convictions between 1996 and 2008. These included eight previous convictions for violence, including aggravated assault in 2003 and wounding with intent to cause grievous bodily harm in 2006, for which Mr Connelly was currently serving a ten-year sentence, imposed in July 2008. The Judge noted that the ten-year sentence had been reviewed by this Court in December 2008 1 and was left intact being well within the range given the nature of the offending.

12 In relation to aggravating factors of Mr Connelly's offending, the Judge noted premeditation, serious injury, being a party to attacking around the head, multiple attackers, a gang element (Mr Poutai was a member of the Black Power gang), vigilante action and vulnerability of the victim. The Judge noted that the victim was a prison inmate and that there was no way he could avoid people who were minded to attack him. He said that in the case of Mr Connelly there was no question of a weapon being involved.

13 As to mitigating factors, the Judge said he gave some credit to Mr Connelly for remorse and that he was also prepared to give credit for his guilty plea. He based that on Mr Connelly's preparedness to plead guilty to a lesser charge at a much earlier stage. However, he emphasised that there could be no possible criticism of the Crown for pursuing the more serious charge to which the respondent eventually pleaded guilty.

14 In selecting a starting point in terms of the bands in R v Taueki 2 the Judge said that Mr Connelly was one of the initial instigators who took steps to let Mr Poutai or others know when the coast was clear and when the victim's cell was emptied out, and that he was involved in the first wave and reported back to Mr Poutai after that. The Judge accepted that Mr Connelly was not involved in the second and third waves but found that he was nonetheless a party. He took as a starting point eight years. He said: “I pick that level deliberately, which sits a year below the lower reaches of Taueki Band 3, to reflect your overall culpability”.

15 He then added fifteen months to reflect the aggravating features of the respondent's previous offending which included the 2006 offending for which he was on remand at the time of this offending.

16 For the guilty plea and willingness to accept criminal responsibility at an earlier stage he allowed a discount of 22 per cent, bringing the end sentence to seven years and four months' imprisonment.

The Judge considered the totality principle. He noted that the current ten year sentence created difficulty in sentencing. He said that there was no option but that the sentence he imposed must be cumulative on the sentence already being served, but that he must have in the forefront of his mind the principles of totality in s 85 of

the Sentencing Act 2002. He considered that the best way of reflecting totality was to impose a sentence of three years' imprisonment which was to be cumulative on the current ten-year sentence

17 He imposed a six-month minimum period of imprisonment to be cumulative on the six-year minimum period of imprisonment imposed in respect of the 2006 offending.

The sentence for this offending: seven years four months' imprisonment

18 The Crown accepted the focus of the appeal was the application of the totality principle but nevertheless took issue with the “pre-totality” sentence of seven years four months imposed for this offending, on two grounds:

• (a) The starting point of eight years was too low. The Crown submitted that the offending warranted a starting point of at least nine years' imprisonment. However, the Crown acknowledged that the eight year...