Connolly v The Queen

[2010] NZCA 129

IN THE COURT OF APPEAL OF NEW ZEALAND

CA789/2009
[2010] NZCA 129

BETWEENNATHAN THOROSE CONNOLLY

Appellant

ANDTHE QUEEN

Respondent

Hearing:2 March 2010

Court:Randerson, Priestley and Mackenzie JJ

Counsel:J H M Eaton for Appellant

F E Guy Kidd for Respondent

Judgment:15 April 2010 at 4 p.m.

JUDGMENT OF THE COURT

The appeal against sentence and conviction is dismissed.

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1]        The appellant is a former police officer.  He was convicted after trial before French J[1] and a jury on one charge under s 129A(1)  of the Crimes Act 1961 of inducing a sex worker to have sexual connection with him, such consent being induced by a threat.  He was acquitted on two other charges relating to the same woman.  Those were a second count under s 129A(1) and a charge laid under s 104 of the Crimes Act of corruptly obtaining a bribe in the context of sexual activity.  The appellant was subsequently sentenced by French J to a term of imprisonment of two years. [2]  He now appeals against both conviction and sentence.

[1]      R v Connolly HC Christchurch CRI-2008-009-14401, 31 July 2009.

[2]      R v Connolly HC Christchurch CRI-2008-409-14401, 17 December 2009.

[2]        The appeal against conviction is advanced on three grounds:

(a)the verdict of the jury is unreasonable or cannot be supported by the evidence;

(b)his conviction is inconsistent with his acquittal on the second count under s 129A(1) of the Crimes Act; and

(c)the trial Judge erred in refusing to accept a plea of autrefois acquit (previous acquittal) under s 358(1) of the Crimes Act or in refusing a stay on the basis of abuse of process.

[3]        The ground for the sentence appeal is that the sentence was manifestly excessive.  In particular, it is said that a community based sentence was appropriate in the circumstances.

The facts

[4]        The circumstances of the offending are unusual but may be stated relatively briefly.  The indictment alleged that the offending took place between 8 December 2006 and September 2007 at Christchurch.  The Crown case was that the offending arose from three separate incidents:

(a)an occasion when the appellant stopped the complainant’s vehicle in Bealey Avenue while he was in his patrol car after which he drove the complainant to a rural area near the Belfast Cemetery and had sexual intercourse with her in the patrol car (“the Bealey Avenue incident”);

(b)a second occasion when the appellant had sexual intercourse with the complainant in a patrol car near the Belfast Cemetery (“the Belfast incident”); and

(c)a third incident when the appellant had sexual intercourse with the complainant at Ashgrove Terrace in a private motor vehicle (“the Ashgrove Terrace incident”).

[5]        The bribery charge arose from the Bealey Avenue incident while the two counts under s 129A(1) arose from the Belfast and Ashgrove Terrace incidents.  The appellant’s conviction related to the Belfast incident.

[6]        Prior to the Bealey Avenue incident, the appellant and the complainant had engaged in regular sexual activity, invariably on…