R v Tolley

[2009] NZCA 573

IN THE COURT OF APPEAL OF NEW ZEALAND

CA623/2009
[2009] NZCA 573

THE QUEEN

v

KEANE TOLLEY

Hearing:24 November 2009

Court:Arnold, Potter and Heath JJ

Counsel:M J Lillico for Appellant

G H Allan for Respondent

Judgment:8 December 2009 at 2.30 pm 

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Potter J)

Introduction

[1]        The appellant appeals against a sentence of two and a half years’ imprisonment imposed by Judge M J Behrens QC in the District Court at Wellington on 11 September 2009 on the ground that it is manifestly excessive.

[2]        The appellant was sentenced on three charges to which he had entered guilty pleas:

(a)         Assault with a weapon between 15 March 2008 and 15 April 2008;

(b)         Assault with a weapon on or about 6 May 2008;

(c)          Injuring with intent to injure on or about 3 June 2008.

[3]        All charges related to the appellant’s partner R.  The Crown agreed not to proceed with a further charge of kidnapping in relation to the events on 3 June 2008.

Sentence appealed

[4]        The sentencing Judge took a starting point of three years’ imprisonment for the three offences considered together.  No issue is taken by the appellant with the starting point.

[5]        The Judge increased the starting point by six months to three years six months’ imprisonment to take account of the previous offending of the appellant, including convictions for assault with intent to injure, male assaults female and breach of a protection order.  The appellant contends that the increase of six months above the starting point of three years is too great because the previous offending was at a low level, reflected by the sentences of community work imposed for two of these convictions and an order in relation to the conviction for male assaults female that the appellant come up for sentence if called upon.

[6]        Mr Lillico submitted that an end sentence of 26 months’ imprisonment rather than the 30 months imposed would have achieved the necessary purpose of deterrence.  He submitted that this approach would not amount to “tinkering” because the reduction of four months in the sentence would make a considerable difference for the appellant in enabling him to seek parole prior to Christmas.

[7]        There may be some merit in the appellant’s contention that the increase of six months above the starting point of three years, to take account of the identified previous offending was on the high side, although as the Crown noted, the appellant’s history evidences an “entrenched pattern of violence toward his partners”, as stated in the pre-sentence report, which warrants specific deterrence.

[8]        However, the discount of twelve months from the revised starting point of three years six months’ imprisonment (28.5 per cent approximately) was generous.  It was attributable almost entirely to the guilty pleas, but they were not entered at the first reasonable opportunity.  While R was saved the ordeal of giving evidence at trial she had been required to give evidence at depositions.  There had been an opposed s 344A application by the Crown, and the guilty pleas followed negotiations with the Crown.  As the Crown submitted, in those circumstances the appellant cannot claim a full discount for guilty pleas having been entered at the first reasonable opportunity, and cannot complain about a discount of approximately 28.5 per cent. 

[9]        To any extent the increase in the starting point may have been on the high side, it was balanced by the generous discount for the guilty pleas.

[10]       The end sentence of two and a half years’ imprisonment cannot be regarded as manifestly excessive in the circumstances of this offending.  The following factors are relevant:

(a)R suffered significant injuries as the result of the first and third offences including enduring nerve damage from the first assault and a fractured nose, broken septum, two black eyes and ligament and tendon damage to the thumb as a result of the third offence.  She has undergone three operations on her nose over a period of several months and has had to wear a cast on her nose.

(b)The emotional repercussions for both R and her two year old son, who witnessed the incident on 3 June 2008, have been and are significant.

(c)The practical consequences for R: she was unable to sit university examinations, lost six months of study, had to re-sit the examinations and was unable to graduate as she had planned.

(d)The incident on 3 June 2008 extended over a considerable period.  While the sentencing Judge correctly did not take into account any aspects of the detention which was the basis of Count 4 in the indictment with which the Crown did not proceed, R was clearly exposed to an extensive traumatic incident.

Result

[11]       The appeal against sentence is dismissed.

Solicitors:

Paino & Robinson, Upper Hutt for Appellant

Crown Law Office, Wellington