| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA730/2021 [2022] NZCA 499 |
| BETWEEN | JAMES FRANCIS CONNOLLY |
| AND | THE KING |
| Hearing: | 27 September 2022 |
Court: | Goddard, Ellis and Dunningham JJ |
Counsel: | C J Tennet for Appellant |
Judgment: | 20 October 2022 at 11.00 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe sentence of five years and four months’ imprisonment is quashed. A sentence of five years’ imprisonment is substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Dunningham J)
Following a jury trial, the appellant, James Francis Connolly, was convicted on the following charges:
(a)arson;
(b)burglary; and
(c)possession of a Class C controlled drug (cannabis) for the purpose of sale.
On 3 December 2021, Mr Connolly was sentenced in the District Court to five years and four months’ imprisonment. He now appeals that sentence as being manifestly excessive because:
(a)the starting point was manifestly excessive;
(b)the Judge misapplied the totality principle;
(c)the Judge failed to give credit for s 27 cultural factors;
(d)the Judge failed to give a discount for alcohol and drug issues; and
(e)the Judge failed to give any credit for the time spent on electronically monitored bail.
Background facts
The facts of the offending were established at trial and set out in Judge Turner’s sentencing notes.[1]
[1]R v Connolly [2021] NZDC 24025 [District Court judgment].
Shortly after midnight on 5 December 2019, Mr Connolly went to a house in Masterton to buy $250 worth of MDMA (ecstasy) from Ms McCarthy. However, the deal went sour, and Ms McCarthy kept both Mr Connolly’s money and the drugs she was to supply. Mr Connolly left the house saying, “I’ll be back”.
Some 15 to 30 minutes later, at about 1 am on the same night, Mr Connolly returned to the house uninvited and went into Ms McCarthy’s bedroom. He had with him a Powerade bottle which contained a purple liquid. Ms McCarthy was not in the room but her friend, Ms Namana, was. Mr Connolly asked where Ms McCarthy was and how long she would be and was told that she might be gone for some time. Mr Connolly then poured the liquid from the bottle onto the carpet and furniture, saying, “tell Krystal this is what you get”. He then set the liquid on fire and left the house. Flames immediately engulfed the bedroom.
Ms Namana ran to the bathroom where Ms McCarthy was having a shower and told her what happened. Other occupants in the address, including the owner and her daughter, were then awoken. The occupants attempted to put the fire out. The fire brigade was called and put out the fire. While there was no structural damage to the building, the carpet was burnt and the walls were charred. Furniture, clothing and possessions in the room were destroyed.
The following morning, police located Mr Connolly at his former partner’s home. A search of his car revealed 150…
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- AGLC
- Connolly v The the King [2022] NZCA 499
- Case
- [2022] NZCA 499
- Decision Date
CaseChat Overview and Summary
This case highlights the importance of considering the totality principle and ensuring that cumulative sentences of imprisonment do not result in a total period of imprisonment that is out of proportion to the gravity of the overall offending. The Court of Appeal also emphasised the importance of providing cogent and credible material to support a claim to mitigating circumstances and that addiction should only be relevant where it is causative of the offending. Finally, this case underscores the need for the Court to consider time spent on electronically monitored bail when sentencing and to afford a discount for such time.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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