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Connolly v The the King

Connolly v The the King

Case [2022] NZCA 499 20 October 2022

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA730/2021
[2022] NZCA 499

BETWEEN	JAMES FRANCIS CONNOLLY Appellant
AND	THE KING Respondent

Hearing:	27 September 2022
Court:	Goddard, Ellis and Dunningham JJ
Counsel:	C J Tennet for Appellant S C Carter and W J Tupua for Respondent
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Connolly v The the King

Details

AGLC: Connolly v The the King [2022] NZCA 499
Case: [2022] NZCA 499
Decision Date: 20 October 2022 at 11.00 am

CaseChat Overview and Summary

The appellant, James Francis Connolly, was convicted of arson, burglary, and possession of cannabis for the purpose of sale. He was sentenced to five years and four months’ imprisonment, which he now appeals as manifestly excessive. The primary grounds of appeal were that the starting point was manifestly excessive, the totality principle was misapplied, cultural factors were not given proper consideration, no discount was given for alcohol and drug issues, and no credit was given for time spent on electronically monitored bail. The Court of Appeal allowed the appeal and reduced the sentence to five years’ imprisonment. The Court found the starting point was not manifestly excessive, there was no error in the application of the totality principle, and the Judge did not err in disregarding the cultural and alcohol and drug reports. However, the Court did find that the Judge should have afforded a discount for time spent on electronically monitored bail, and as such, the sentence was reduced by four months.

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