[1] Following a jury trial in the District Court at Whangarei the appellants were found guilty of a charge that, with intent to cause grievous bodily harm, they caused such harm to the victim, Mr Bidois. Judge McDonald sentenced both appellants to ten years imprisonment with a minimum non-parole period of six years: DC WHA CRI-2006-088-004990 10 July 2008. Both appeal against sentence.
Background
[2] At the time of the offending Mr Bidois had been involved in surf lifesaving for 11 to 12 years. He was a senior member of the Ocean Beach Surf Lifesaving Club. In 2005 and 2006 he had been involved with coaching junior lifeguards. On 3 December 2006 he was at the beach. He had completed coaching for the day and was on the deck of the lifesaving club with a lifeguard, Mr Fleet. They were keeping a watch on people down on the beach.
[3] The appellants, together with a Mr McMahon, Mr Ngaau’s younger brother and a young woman, came to the beach. They had been drinking. They were annoying other people at the beach. After Mr McMahon had made a nuisance of himself in the carpark he and Mr Connelly went down to the beach and hassled the young lifeguards. They asked the lifeguards to give them a ride in their Argo vehicle. The lifeguards properly told them no. One of the young lifeguards then went to return to the clubhouse to get his sunglasses. Mr McMahon followed him and tried to start a fight with him. He threw a punch at the lifeguard which missed. The behaviour of Mr McMahon and the appellants’ group generally was of concern to Mr Bidois and Mr Fleet, who had observed them from the clubhouse. They went down from the deck onto the beach to make sure the young lifeguard was all right. They approached Mr McMahon to tell him to leave the beach. The appellants ran up, one after the other. Mr Bidois told them that they could not carry on like they were, and that they should leave the beach. Mr McMahon pushed at Mr Bidois. Mr Bidois pushed him back. Mr Ngaau pushed Mr Bidois and challenged him to a fight. Mr Bidois said he did not want to fight, he just wanted them to leave the beach. After that the appellants launched into a sustained attack on Mr Bidois. The Judge described the attack as follows (at [11]):
Mr Ngaau you hit Mr Bidois first, Mr Connelly you then joined your mate. Both of you hit Mr Bidois a number of…
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.
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Details
AGLC
R v Connelly [2008] NZCA 550
Case
[2008] NZCA 550
Decision Date
CaseChat Overview and Summary
The appeals were brought by Les Tasos Connelly and Georgie Abraham Ngaau against their sentences for causing grievous bodily harm with intent. Connelly and Ngaau had been found guilty following a jury trial in the District Court at Whangarei of assaulting Mr Bidois, a senior member of the Ocean Beach Surf Lifesaving Club. The appellants, together with Mr McMahon and a young woman, had been drinking and annoying other beachgoers. They asked young lifeguards for a ride in their vehicle, which was refused. After Mr McMahon attempted to start a fight with a young lifeguard, Mr Bidois and Mr Fleet went down to the beach to ensure the safety of the young lifeguard. The appellants approached Mr Bidois and McMahon pushed at Mr Bidois. After a brief exchange, the appellants launched into a sustained attack on Mr Bidois, striking him multiple times and knocking him to the ground. Mr Bidois suffered a fractured C2 vertebrae and required a halo apparatus for three to four months. He also experienced long and short-term memory loss, speech and communication issues and was unable to return to work. The District Court Judge sentenced both appellants to ten years imprisonment with a minimum non-parole period of six years. The appellants submitted that the sentence was manifestly excessive and wrong in principle. They argued that the Judge failed to properly assess the seriousness of particular aggravating factors and that the offending should be regarded as a street attack. The Crown submitted that the sentence was within the range available to the Judge and was not manifestly excessive. The Court found that the Judge was entitled to form his own view of the facts, including the appellants' behaviour and culpability. The Court found the Judge's assessment of the facts was not in error and that the appellants were spoiling for a fight. The Court found the Judge appropriately identified the aggravating features of the offence, including extreme violence, serious injury, attack to the head, multiple attackers and that the victim was a public official. The Court found that the sentence of ten years imprisonment with a minimum non-parole period of six years was available to the Judge and was not manifestly excessive. The appeals were dismissed.