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R v Connelly

R v Connelly

Case [2010] NZCA 52 4 March 2010

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA559/2009
[2010] NZCA 52
BETWEENTHE QUEEN

Appellant

ANDLES TASOS CONNELLY

Respondent

Hearing:23 February 2010

Court:Baragwanath, Potter and Ronald Young JJ
Counsel:S B Edwards for Appellant

M B Dodds for Respondent

Judgment:4 March 2010 at 11am

JUDGMENT OF THE COURT

A The application for leave to appeal is granted.
B The appeal against sentence is allowed.
CThe sentence of three years’ imprisonment is quashed and substituted with five years’ imprisonment.
DThe minimum period of imprisonment of six months is quashed and substituted with 18 months.

____________________________________________________________________
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…

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 R v Connelly

Details

AGLC: R v Connelly [2010] NZCA 52
Case: [2010] NZCA 52
Decision Date: 4 March 2010

CaseChat Overview and Summary

In the case of R v Connelly, the Court of Appeal of New Zealand considered an appeal by the Solicitor-General against the sentence imposed on Les Tasos Connelly for wounding with intent to cause grievous bodily harm. Connelly had been sentenced to three years' imprisonment, with a minimum period of imprisonment of six months, to run concurrently with a ten-year sentence for a previous offence. The Crown argued that the sentence did not adequately reflect the seriousness of the offending and the offender's culpability. The central issue was whether the sentencing judge properly applied the totality principle when imposing the sentence. The Crown submitted that the totality principle required a longer sentence, while Connelly argued that the sentence was within the proper discretion of the sentencing court.

The Court of Appeal held that the sentence should reflect the overall criminality of the offender and the need to deter re-offending, particularly violent re-offending, while in prison. The Court agreed with the Crown that the sentence of three years' imprisonment should be increased to five years' imprisonment, and the minimum period of imprisonment should be increased to 18 months. The Court quashed the original sentence and substituted it with the new sentence, resulting in a total of fifteen years' imprisonment, with a minimum period of imprisonment of seven and a half years. The Court of Appeal granted leave to appeal and allowed the appeal against the sentence.

Orders