The Queen v Kelly [2008] NZCA 526 (3 December 2008)

Last Updated: 10 December 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA466/2008

[2008] NZCA 526

THE QUEEN

v

SCOTT JAMES WREFORD KELLY

Hearing: 27 November 2008

Court: O'Regan, Hugh Williams and Harrison JJ

Counsel: A J Bailey and S G Bailey for Appellant
N P Chisnall for Crown

Judgment: 3 December 2008 11.30 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] Mr Scott Kelly appeals against his conviction following trial in the District Court at Christchurch on four counts of placing a device that was likely to injure with reckless disregard for the safety of others: s 202 Crimes Act 1961; and one count of injuring with reckless disregard for the safety of others: s 189(2). He appeals his conviction for placing a device on the ground of a misdirection by the trial Judge. He appeals his conviction for injuring on the ground that the jury’s verdict was unreasonable.
[2] Mr Kelly also appeals against his sentence of two years and one month imprisonment imposed on all counts on the ground that it was manifestly excessive.

Background

[3] The relevant background facts can be briefly stated. Mr Kelly, his co-offender, Mr Raymond Coombs, and another man purchased some dry ice (solid carbon dioxide) on 17 August 2007. The substance is commonly used as a cooling agent. The third party played no further part in subsequent events. He was replaced by another co-offender, Mr Damien White.
[4] All three men participated in filling five Fanta soft drink bottles with the dry ice which, when placed in an airtight container and mixed with water, forms a volatile carbon dioxide gas. The explosion of a dry ice bomb is sufficiently loud to cause immediate and permanent hearing loss to some people. Others might suffer significant temporary hearing loss. Also, when the container explodes, debris, in the form of dry ice and plastic fragments, can shatter to a distance of 15 metres. All three men participated in experiments or dummy runs in detonating dry ice bombs.
[5] The first three device charges (counts 1 to 3) arose from the placement of three dry ice bombs at various locations throughout Christchurch. They exploded at 10 minute intervals. There were no injuries suffered but school children and members of the public were in close proximity. The fourth bomb, which was the subject of the injuring charge (count 4), was placed inside a yellow plastic shopping bag and carried into the Christchurch Bus Exchange. A cleaner, Mr Brian Chambers, picked up the bag and removed the container with the intention of disposing of it. Instead it exploded. Mr Chambers suffered cuts and bruising to his hand and permanent hearing loss.
[6] The fourth device charge (count 5) arose from the later placement of a fifth bomb in a planter box outside another shopping mall. It exploded also but nobody suffered injury.
[7] The Crown case at trial was that Mr Coombs was the principal offender. He had earlier pleaded guilty and was sentenced to two years and three months imprisonment. The Crown case against Messrs Kelly and White (who pleaded guilty at the start of the trial) was that they were parties to the offending.

Conviction

(1) Misdirection

[8] Mr Kelly’s first ground of appeal advanced by Mr Andrew Bailey is that Judge Saunders misdirected the jury on the elements of the placing a device charge. The offence is defined as follows: s 202(1):

(1) Every one is liable to imprisonment for a term not exceeding 5 years who, with intent to injure, or with reckless disregard for the safety of others, sets or places or causes to be set or placed any trap or device that is likely to injure any person.

[Our emphasis]

[9] At one part of his summing-up to the jury the Judge said this:

If you are satisfied that the accused knew that either Coombs or White was going to place a device at a location then you ask yourself by his actions, Mr Kelly’s actions, did he either intentionally assist or encourage that person to do so. The second question that then arises is if he did so, did he have some basis to appreciate that the actions of placing the device in public could injure someone and was reckless as to the safety of others involved. In other words was there a basis for Mr Kelly to foresee that there could be serious consequences and that he intended by his conduct to continue with it, that conduct continued regardless of the risk.

[Our emphasis]

[10] Mr Nicholas Chisnall for the Crown concedes the Judge’s error. The Judge used the words ‘could injure’ instead of ‘is likely to injure’. However, we agree with Mr Chisnall that the Judge’s error did not cause a miscarriage of justice for two reasons.
[11] First, Judge Saunders provided the jury with a careful written memorandum of the elements of the charge. It correctly used the phrase ‘is likely to injure’ throughout. Furthermore, earlier in his oral direction, the Judge on four separate occasions correctly used the words ‘is likely to injure’. Then, following his oversight, Judge Saunders again correctly recited the relevant provision. He emphasised as follows:

... It is the likelihood of injury occurring that is what the section is aimed at and the Crown says well, you could be satisfied that these are devices that are likely to injure because of what happened to Mr Chambers, that is an illustration of itself of likely injury, but also the expert evidence of Mr Goodwin as to the potential damage to hearing at that high decibel level.

[The Crown prosecutor] pointed also to the evidence that you saw on video of testing by the police and how there are jagged shards and the potential for persons to be cut or injured by projectiles, and she made the point that in all cases these were placed in public areas to which the public had ready proximity and it may have been likely to have been injured.

[12] We are in no doubt that the correct terms of the Judge’s written memorandum, which was with the jury throughout its deliberations, and his correct oral repetition of the legal requirement for proof that the trap was likely to injure, coupled with a correct description of the need to establish Mr Kelly’s reckless disregard for the safety of others, reduces his error to an inconsequential or minimal level that could not possibly have led the jury into error.
[13] Second, the Crown case was that Mr Kelly was a secondary party; that he participated in the offending by intentionally assisting or encouraging the actions of the principals, Messrs Coombs and White. Mr Kelly’s defence at trial, as the Judge noted in his summing-up, was that Mr Coombs’ plea of guilty amounted to an express acceptance that:

... they had a reckless disregard for safety when either of them placed a device and such a device was likely to injure...

[14] The transcript and summing-up confirm the obvious – that the likelihood that the dry ice bombs would cause injury was not the focus of the defence case. The principal issue was whether or not Mr Kelly participated in the criminal sense. This explains why his counsel did not raise the error at the conclusion of the Judge’s summing-up when the proper opportunity arose.
[15] We are accordingly satisfied that the Judge’s error did not cause a miscarriage of justice. This ground of appeal is dismissed.
(2) Injuring
[16] The second ground of appeal is that the jury’s verdict of guilty on the charge of injuring Mr Chambers with reckless disregard for the safety of others was unreasonable. Mr Bailey refers to a number of factors which are, he says, sufficient to establish that no reasonable jury should have been satisfied beyond reasonable doubt that Mr Kelly assisted Mr Coombs in placing the bomb at the bus exchange: R v Owen [2008] NZLR 37.
[17] At the conclusion of the Crown case Mr Kelly’s counsel applied for an order discharging Mr Kelly on all counts: s 347. In a reasoned decision delivered on 9 July 2008 Judge Saunders dismissed the application on these grounds: DC CHCH CRI-2007-009-011389 at [4]:

I am satisfied that the jury have an evidential base from which they may reasonably conclude that there was a reckless disregard shown by Mr Coombs. The issue for the jury is whether the accused Kelly was participating in this activity as a party to the offending of Mr Coombs. Although Mr Coombs did his best to downplay the actions of the accused, I am satisfied that it is open for a jury to conclude that the accused was the third person shown to be present. There is no evidence of a fourth person except by the version given by Mr Coombs. The jury do have the fingerprint evidence and text messages said to have been sent from the accused’s cellphone which can be considered in this respect. Even if they were to conclude that the accused did remain at the car leaving White and Coombs to enter the Bus Exchange, I consider the Crown can still reasonably invite a jury to consider that the accused continued to act as a party to the offending. There was never any effective withdrawal or disassociation from the activities being carried out. Accordingly on count 4 there is a case to answer and at this point a jury properly directed as to the legal ingredients could return a verdict of guilty.

[18] We agree with the Judge. There was a sufficient factual basis, founded upon the evidence of a bystander at the bus exchange, Mr Martenique Hendricks and Mr Kelly’s participation in the three previous episodes, for the jury to find that Mr Kelly was one of the three men who planted the device in the bus station. Mr Hendricks’ evidence was corroborated by Mr Kelly’s fingerprints on a shopping bag and, in particular, his extensive text message exchanges with others before and after the explosion. These incriminating communications implied Mr Kelly’s pride, expressed with a degree of bravado, at his role in the crime. It was open to the jury to reject Mr Coombs’ evidence at trial that Mr Kelly was not present.
[19] On analysis, the Crown case against Mr Kelly on the injuring charge was strong and we are satisfied that the jury could reasonably have reached its guilty verdict to the standard of proof beyond reasonable doubt.

Sentence

[20] Mr Bailey accepts that the appropriate starting point for Messrs Coombs and White, the primary offenders, was the term of three years imprisonment adopted by the Judge. He submits that, while the Judge did not articulate a starting point for Mr Kelly, his end sentence of two years and one month properly equates with the actual starting point adopted (there being no apparent mitigating personal circumstances) to reflect Mr Kelly’s secondary role. He submits, though, that the sentence should have been further reduced by three months to allow for the restriction on Mr Kelly’s liberty imposed by electronic monitoring bail for about six months and subsequent strict bail conditions including a curfew. He relies on recent decisions of this Court: see R v Tamou [2008] NZCA 88 at [18]- [22].
[21] It is within the sentencing Judge’s discretion to determine whether an allowance for restrictive bail conditions or electronic monitoring bail should be made. While it can operate to reduce a sentence, the Judge must determine on an evaluative assessment whether it should be taken into account in a particular case. The question is whether the bail conditions are so restrictive as to amount to a rough equivalent of a remand in custody, causing an infringement on a person’s freedom of movement: see R v Nepe [2008] NZCA 98.
[22] Judge Saunders recognised this factor. While he does not specifically say so, his notes suggest that he made an appropriate allowance for this factor in fixing an end sentence of two years and one month. We are not satisfied, in any event, that the conditions of Mr Kelly’s bail were so restrictive on his freedom as to justify any reduction in what would otherwise be an appropriate sentence.
[23] Alternatively, Mr Bailey submits that the Judge tailored the sentence to a point in excess of two years solely for the purpose of attempting to force Mr Kelly to undertake a rehabilitative programme while in custody. He submits that this is the reason for the Judge’s failure to specify a starting point and a deduction for time spent on EM bail.
[24] It is true that the Judge expressed his satisfaction that Mr Kelly should be assessed for appropriate intervention through a rehabilitation programme available within a penal institution. However, rehabilitation is a settled sentencing purpose and a Judge is entitled to take it into account. We agree that it would be wrong for a Judge to arrive at a sentence above what would otherwise be appropriate in order to force an offender to do particular programmes in prison but there is nothing to suggest that Judge Saunders did that in this case.
[25] Mr Bailey’s submission is effectively that the sentence was wrong in principle because of Judge Saunders’ reference to rehabilitation. If we accepted that proposition, we would have to sentence Mr Kelly afresh. The circumstances of his offending were very serious. As this Court observed when upholding the Judge’s three year starting point imposed upon Mr Coombs: R v Coombs [2008] NZCA 329 at [18]:

This foolhardy offending was very serious. It involved permanent disability to a member of the public and it was entirely fortuitous that others were not injured. Once the bombs had been placed the appellant and his co-offenders had no control over them. To make matters worse, during the afternoon no less than five bombs were placed at different locations. It was particularly cynical of the appellant and his co-offenders to place a fifth bomb after a member of the public had been injured when the fourth bomb exploded. Apart from those matters there was the general disruption and public apprehension.

[26] Taking account of the totality of this offending and the permanent injury caused by the fourth bomb, a starting point of more than three years for the principal offenders would not have been excessive. While a reduction would have been appropriate for Mr Kelly’s secondary role, he has at 26 years of age accumulated a lengthy list of serious criminal convictions including threatening to kill, injuring with intent to injure, assault, reckless injury and numerous convictions for escaping from custody. He has been sentenced to a number of terms of imprisonment. An uplift of six months on an otherwise appropriate starting point of two-and-a-half years to recognise the aggravating feature of Mr Kelly’s previous serious offending for crimes of violence would lead to an end sentence significantly in excess of two years and one month imprisonment, even if we had been minded to give some credit for the time spent on EM bail.
[27] It follows that Mr Kelly’s sentence of two years and one month imprisonment was neither manifestly excessive nor wrong in principle. His appeal against sentence is hereby dismissed.

Solicitors:
F S Legal, Christchurch for Appellant
Crown Law Office, Wellington