Skilling v The Queen - [2011] NZCA 463

IN THE COURT OF APPEAL OF NEW ZEALAND

CA86/2011
[2011] NZCA 463

BETWEEN JACOB LEO SKILLING
Appellant

AND THE QUEEN
Respondent

Hearing: 8 September 2011

Court: Glazebrook, MacKenzie and Asher JJ

Counsel: C M Ruane for Appellant
M E Ball for Respondent

Judgment: 16 September 2011 at 4.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT
(Given by Glazebrook J)

Introduction

Mr Skilling was found guilty after a trial in the Nelson District Court of one count of wounding with intent to cause grievous bodily harm.[1] He was sentenced to nine years imprisonment with a minimum term of imprisonment of four years and six months.[2]
[1] Contrary to s 188(1) of the Crimes Act 1961 (maximum penalty 14 years imprisonment).
[2] R v Smith DC Nelson CRI-2009-042-3643, 14 December 2010.
Mr Skilling was jointly charged with three other men, Mr Jamie Smith, Mr Zachariah Tangohau and Mr Jacob Head. Mr Smith went to trial with Mr Skilling while Mr Head pleaded guilty and was sentenced earlier than his co-offenders. Mr Tangohau died before disposition of the charge against him.

Background

The charge arose out of an attack by Mr Skilling and his three associates on the victim who, along with his girlfriend, was at a service station in Nelson in the early hours of 13 September 2009 attempting to hail a taxi. Neither the victim nor his girlfriend knew Mr Skilling or his associates, and had not interacted with them in any way that evening. However, one of Mr Skilling’s associates, Mr Smith, thought that the victim was a man who he had had an earlier altercation with and began to abuse the victim verbally.
Following the verbal abuse, the victim and his girlfriend decided to leave the service station and started to walk towards the Nelson cathedral. Mr Skilling and his associates followed and the victim attempted to run away from the group up a pathway on the west side of the cathedral. Mr Skilling ran after the victim, caught up with him and “ran him down”.
Mr Skilling then held the victim while his associates arrived at the scene. Mr Skilling hit the victim and said to him, “You’re going to fucking get it now.” The victim was then held by two of the people in Mr Skilling’s group while being struck by the others. There was a sustained attack upon the victim over several minutes, with the victim pleading with them to stop, pointing out that they had broken his arm.
The victim eventually managed to get away, but was again caught by Mr Skilling who pushed him from a ledge in the cathedral gardens onto the road. Mr Skilling’s associates followed the victim over the ledge and again assaulted the victim repeatedly, kicking, punching and stamping on him.
The report from the victim’s orthopaedic consultant details the extent of the injuries to the victim from this assault. The victim’s elbows were both dislocated, his left elbow was fractured, he required major…

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 Skilling v The Queen

Details

AGLC: Skilling v The Queen [2011] NZCA 463
Case: [2011] NZCA 463
Decision Date: 16 September 2011

CaseChat Overview and Summary

Jacob Leo Skilling appeals against his conviction and sentence for wounding with intent to cause grievous bodily harm. The case was heard by the Court of Appeal of New Zealand, with Glazebrook, MacKenzie, and Asher JJ delivering judgment. Mr Skilling was jointly charged with three other men in relation to an attack on a victim at a service station in Nelson. The victim and his girlfriend were assaulted by Mr Skilling and his associates, resulting in significant physical injuries and adverse effects on the victim and his girlfriend. Mr Skilling has a history of previous convictions for violent offending.

The primary legal issues in the appeal were whether the starting point for sentencing was too high, the uplift for prior convictions was excessive, Mr Skilling's youth was not taken into account, and a minimum non-parole period should not have been imposed. The Court of Appeal found that the starting point and uplift for prior convictions were within range, considering Mr Skilling's history and recent aggravated group street robbery conviction. Although no specific allowance was made for Mr Skilling's youth, the Court accepted that the Judge was aware of his age and considered it in the overall sentence. The Court also found that the imposition of a minimum term of imprisonment was appropriate to denounce and deter such serious offending.

In conclusion, the Court of Appeal dismissed the appeal, upholding the conviction and sentence imposed by the Nelson District Court. The appeal did not succeed in establishing that the sentence was manifestly excessive or inappropriate in the circumstances. The Court found that the Judge's sentencing decision was well within the range of appropriate penalties for the crime committed.

Orders