The Queen v Connelly and Ngaau [2008] NZCA 550 (10 December 2008)

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The Queen v Connelly and Ngaau [2008] NZCA 550 (10 December 2008)

Last Updated: 18 December 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA422/2008CA463/2008

[2008] NZCA 550

THE QUEEN

v

LES TASOS CONNELLYGEORGIE ABRAHAM NGAAU

Hearing: 18 November 2008

Court: Arnold, Venning and Miller JJ

Counsel: C Muston for Appellant, Connelly
J W Watson for Appellant, Ngaau
K Bicknell for Crown

Judgment: 10 December 2008 at 2.30 pm

JUDGMENT OF THE COURT

The appeals against sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Introduction

[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 times taking turns. As Mr Bidois was punched from one angle he would turn to face that threat to be then blind punched by the other one. He would turn back to face that person to be punched by the first person again. He had no chance against you two. He was knocked to the ground. A number of times he struggled to get up only to be knocked down again. He was kneed. There was some suggestion he was kicked as well. The number of blows cannot be accurately determined. The evidence was from one or two blows to 30 or 40. I consider a large number of blows was struck by both of you.

[4] The attack only stopped when a large man appeared with some support and told the appellants to cut it out. They then left.
[5] Mr Bidois was left dazed, cut and seriously hurt on the beach. As a consequence of the beating he sustained a fracture to his C2 vertebrae. He was required to wear a halo apparatus to keep his neck perfectly still for at least three to four months. That has left permanent scarring. He has two holes in his forehead where the halo apparatus was anchored. He also experienced problems with his bladder. Almost 18 months after the incident, at the trial in May 2008, Mr Bidois still suffered from both long and short-term memory loss. He also experienced speech and communication issues and was not able to drive. He has been unable to return to work.

The District Court sentence

[6] Judge McDonald referred to the guideline judgment of R v Taueki [2005] 3 NZLR 372 (CA). The Judge placed the offending in band three or on the cusp of bands two and three. He considered that, taking account of the aggravating features of extreme violence, serious injury, attack on the victim’s head, multiple attackers and that as a lifeguard the victim was similar to a public official, a start point of ten years’ imprisonment was required. Judge McDonald did not consider that there were any mitigating factors. He also accepted the Crown submission that given the violence of the attack on the victim it was necessary to impose a minimum non-parole period of close to the maximum to denounce the appellants’ conduct and to deter others. He also considered there was a need to protect the community. The Judge imposed a minimum non-parole period of six years on each appellant.
[7] The Judge’s approach to sentence in this case was unusual, in that he fixed a start point for the offence, then identified personal aggravating features but did not add anything to the start point for the personal aggravating features.

The appellants’ submissions

[8] For Mr Connelly, Mr Muston submitted that the sentence of ten years with a minimum non-parole period of six years was manifestly excessive.
[9] He submitted the Judge fell into error by failing to set out the factors which bore on the assessment of the appropriate starting point and by failing to evaluate the seriousness of particular aggravating factors “in any way which can be clearly understood”.
[10] In his written submissions Mr Muston suggested the offending was equivalent to that described in Taueki as a street attack with a starting point of around five years. He submitted the Judge failed to deal with the authority of R v Scott & Lewis [2007] NZCA 589 referred to him.
[11] For Mr Ngaau, Mr Watson submitted the sentence was manifestly excessive and wrong in principle. He submitted the sentence was manifestly excessive because:

(a) the Judge fell into error on his view of the facts;

(b) the Judge’s assessment of the effect of the seriousness of the injuries sustained by Mr Bidois was wrong;

(c) the correct assessment of the offending was as a concerted street attack which put it in band two of Taueki.

[12] Mr Watson submitted the sentence was wrong in principle because:

(a) having identified the five aggravating factors the Judge considered to be present in this case he failed to evaluate the seriousness of them;

(b) the Judge seemed to approach the matter on the basis the public needed to be protected from Mr Ngaau.

Discussion

The Judge’s assessment of the factual situation

[13] As noted, both counsel criticised the Judge’s assessment of the facts. In his written submissions Mr Muston in particular went through the Judge’s sentencing decision paragraph by paragraph noting his criticism in relation to particular points. Mr Muston’s paragraph by paragraph analysis of the District Court Judge’s sentencing notes is not a helpful approach on a sentence appeal to this Court. On such an appeal what is required is not so much a critical examination of the sentencing Judge’s method as an evaluation of the appropriateness or otherwise of the sentence ultimately imposed. A minute dissection of the sentencing notes is less helpful to an appellate Court than submissions as to the relevant aspects of the case and the application of statutory and common law sentencing principles: R v Martin CA199/04 14 February 2005.
[14] The criticism of the Judge making his own assessment of the facts is, in any event, without foundation. The Judge in a jury trial is effectively the thirteenth fact finder. Where, following a verdict(s) of guilty the Judge is required to sentence a prisoner the Judge is entitled, where the evidence supports it, to reach his or her own view of the facts relevant to sentencing provided that such view is not inconsistent with the verdict: R v Heti (1992) 8 CRNZ 554 (CA); R v Accused (CA125/87) (1988) 3 CRNZ 331, 335 (CA); R v Harris [1961] VicRp 36; [1961] VR 236 (SC); R v Whittle [1974] Crim LR 487 (CA); R v Solomon & Triumph (1984) 6 Cr App R (S) 120 (CA). The Judge is not bound to accept the version of facts most favourable to the prisoner.
[15] This was a long trial. It started on 12 May 2008. The evidence concluded on 21 May 2008. The Judge heard from a number of witnesses who were at the beach. Both appellants gave evidence. The Judge was well placed to form his own view of the facts including the appellants’ behaviour and culpability.
[16] We refer to the principal criticisms raised by counsel. First, that the Judge overstated the position when finding the appellants knew that Mr McMahon was likely to provoke someone on the beach that day and that would give them an opportunity to beat someone up. For present purposes we accept the Judge may have overstated the appellants’ use of Mr McMahon in that way. But the Judge was entitled to draw the inference that the appellants were “up for it” or were spoiling for a fight. Perhaps the best evidence about the assault is Mr Fleet’s evidence. He was with Mr Bidois when he approached Mr McMahon and when the assault took place. Mr Fleet said the first thing that Mr McMahon said to them was “do you want to fight”, and that he was trying to encourage them to fight. Mr Fleet’s description of Mr Ngaau’s arrival and attitude is telling. He said that Mr Ngaau “came running over, you know clenched fists, chest out, no shirt, he really really wanted to bash someone really yeah.” Mr Ngaau then asked Mr Bidois for a fight. Mr Connelly joined in shortly after. The Judge was entitled to draw the inference from that evidence that the appellants were spoiling for a fight.
[17] Mr Watson suggested there was a contradiction between the finding the appellants were spoiling for a fight and the fact the Judge did not identify premeditation as an aggravating factor. But spoiling for a fight and taking the opportunity of one is different to planning for one.
[18] Both Mr Muston and Mr Watson also sought to downplay the number of blows meted out to Mr Bidois by the appellants. But again Mr Fleet’s evidence is helpful. He said that although he did not see every blow being landed he saw Mr Bidois get hit “probably a dozen times and then when I wasn’t looking I could hear a solid thump”. It was open to the Judge to conclude that the appellants delivered a large number of blows to Mr Bidois.
[19] The next finding that counsel took objection to was that Mr Bidois was carrying out duties as a lifeguard on the day and the Judge’s acceptance that a lifeguard was a public official. It is correct that the position of a lifeguard is a voluntary one and that a lifeguard has no statutory authority. Also Mr Bidois was not wearing a lifeguard uniform (although he was with Mr Fleet who was wearing a uniform). But all of that was acknowledged by the Judge. In his discussion on the point the Judge noted the Crown submission that Mr Bidois was a public official. While the Judge considered it was arguable whether a volunteer lifeguard fell under the term of “public official” it is apparent he did not place much significance on that particular factor. As he concluded (at [23]):

... I draw the inference from all of that that you both knew Mr Bidois was associated with, if not a lifeguard himself. I consider that is a factor that I can take into account but not give it as much weight as the four previous that I have discussed.

[20] Mr Muston then suggested that the appellants’ attack was in response to Mr Bidois’ assault on their associate Mr McMahon. The Judge rejected that submission. He held there was no provocation by Mr Bidois and that he was simply doing what every right thinking person would expect him to do. He asked a person who was badly affected by alcohol and who was throwing punches at members of the public, to leave the beach. Again Mr Fleet’s evidence supports the Judge’s finding.

The seriousness of the injury

[21] Counsel criticised the Judge’s rejection of the submission that the fact neither of the appellants knew that by punching Mr Bidois they would fracture his C2 vertebrae reduced their culpability. Counsel referred to Scott & Lewis and to the evidence of G J Laws, the orthopaedic surgeon at Whangarei Hospital, that:

Given my perceived knowledge of how often punches to the head are said to occur and the number of fractures that I’m aware are caused by this I would say it is rare for a punch to actually cause such an injury as a general rule.

On this basis counsel submitted that the appellants had no foresight of the extent of the injuries Mr Bidois might suffer.

[22] The case of Scott & Lewis does not assist the appellants. It is largely fact dependent. The victim in that case was taking a prescription medicine Warfarin. The medicine blocked coagulation and inhibited the formulation of blood clots. As a result the victim suffered bleeding within the brain which required surgery but which only became apparent six days after the incident. The serious consequences of the assault were entirely unexpected and only arose because of the medication.
[23] By contrast, while the appellants may not have fully appreciated the potentially serious consequences of their assault on Mr Bidois, Mr Laws’ evidence underlines the serious beating they meted out to Mr Bidois. There is no suggestion that Mr Bidois was himself unduly vulnerable to such an injury. Rather Mr Laws’ evidence supports the finding that this must have been a serious beating to have caused such a fracture. The seriousness of the injury is an aggravating rather than a mitigating factor. It must also be remembered that the jury found the appellants guilty of intending to cause grievous bodily harm to Mr Bidois.
[24] The evidence of the incident and the serious injury caused to Mr Bidois supports the finding that these appellants methodically and quite deliberately took turns to deliver blows to Mr Bidois’ head. In doing so they must be taken to have assumed the risk of inflicting very serious injury.

Application of Taueki

[25] Mr Muston initially submitted that this offending fell within the category of a street attack falling within band one in Taueki. Mr Watson submitted that it could be regarded as equivalent to a concerted street attack falling within band two and attracting a penalty of between five and seven years. By the end of the hearing Mr Muston also accepted that range of five to seven years could apply to Mr Connelly.
[26] But as the Crown submit, a sentencing Court should not seek to fit offending into one of the categories set out in Taueki, but rather should identify the factors relevant to the gravity of the offence and criminality by reference to the factors referred to in Taueki. The examples in Taueki are just that, examples of a combination of factors.
[27] Whether the sentence of ten years’ imprisonment is manifestly excessive as submitted by the appellants or is within an available range as submitted by the Crown can be tested by reference to the particular features of this case, and also by reference to other authorities following the decision in Taueki.
[28] In R v Stewart CA21/06 31 August 2006 this Court dismissed an appeal against a sentence of ten years on a charge of causing grievous bodily harm with intent to cause such harm. Mr Stewart had drank a considerable amount of alcohol on his own, gone to a friend’s house where more alcohol was drunk and then he, his friend and the complainant went to a local tavern. During the course of the evening the friend left briefly and returned to find Mr Stewart kneeling over the complainant, who was by then lying on the ground, punching him in the head. The friend went for help. He returned to hear thumps which he believed were from Mr Stewart kicking the complainant. The complainant was badly injured and left in a vegetative state. The Judge took a start point of 11 years’ imprisonment reducing it to ten years to take account of Mr Stewart’s personal circumstances. This Court recorded:

[20] This was an extremely serious assault. It was mindless, unprovoked, repeated and vicious. It involved injuries of the gravest kind to the victim’s head, one of the most vulnerable parts of the body. Not only did it involve repeated punching ... but also involved numerous “very hard” kicks ...

[29] In R v Clarke [2007] NZCA 164 this Court upheld a sentence of eight years’ imprisonment on a charge of wounding with intent to cause grievous bodily harm, injuring with intent to cause grievous bodily harm, assault with a weapon, assaulting a female, threatening to kill and assault. The sentencing Judge took a start point of nine years. There were multiple victims in that case. The first victim was a Mr Apiata. The first victim was attacked and knocked to the ground by Mr Clarke and another. They jumped on his torso and kicked him. They then dragged him across the road on his back. The offenders then went to another house. Mr Clarke struck a person on the nose with a bottle and then a second time on their arm which caused the bottle to shatter. In dismissing the appeal this Court noted:

[14] Band two of Taueki provides a range of five to ten years imprisonment. The mid-point therefore would be around seven years. ... Adding two years to the starting point (which we consider conservative given the mindless nature of the offending, the number of victims and the level of violence involved, particularly in the attacks against Mr La Lone and Mr Apiata) would result in the nine years used by the Judge.

And later at [16]:

In no way can this be described as manifestly excessive. Indeed it was well within the range available to the Judge and could even be described as lenient.

[30] In R v Mohamed [2007] NZCA 170 this Court accepted that the start point of a eight and a half year term of imprisonment was available. The appellant had been at a party and been asked to leave. He returned carrying a knife. The complainant told the appellant to calm down. The appellant then attacked the complainant stabbing him three times. He stabbed the complainant in his thigh and caused minor lacerations to his calf and upper back. The appeal was allowed and a reduction in the ultimate sentence was directed because the appellant suffered from post traumatic stress disorder. However the Court confirmed that a start point towards the end of band two, namely eight and a half years was available to the Judge for the attack.
[31] Next is the case of R v Feterika [2008] NZCA 127. Mr Feterika was convicted of wounding with intent to cause grievous bodily harm and sentenced to ten years’ imprisonment. He was a member of a youth gang who went out searching for members of a rival youth gang on the night in question. Mr Feterika’s role in the incident was limited. The Judge noted, however, the aggravating features of the case were the extreme violence, premeditation, serious injury, use of weapons, attacking the head, multiple attackers and gang warfare. The victim, while admitted to intensive care with serious head injuries, did not suffer sustained and ongoing effects as a result of the assault. A starting point of 11 years’ imprisonment was accepted as appropriate with an uplift of one year for personal aggravating circumstances to lead to a start point of 12 years before mitigating factors. The appeal against the end sentence of ten years was dismissed.
[32] Finally there is the case of R v Grace [2008] NZCA 243. In that case Mr Grace carried out an unprovoked attack on the victim. He headbutted, punched and kicked the victim about the head. The victim was left severely injured. The Judge took as a start point 12 years reducing it by two years for mitigating factors. While the focus of the appeal was on the issue of the assistance Mr Grace had given the authorities there was no suggestion that the start point of 12 years was not warranted.
[33] In Taueki itself one of the particular cases under appeal was the case of Roberts. The appellant Roberts assaulted another person in the early hours of the morning. The victim was described as “muscley and athletic”. The victim was seriously injured and eventually became unconscious. Mr Roberts continued the assault until dragged off the victim. The Court noted that the reason for the altercation was not established at trial but it may have been that the victim was attempting to encourage Mr Roberts to desist from assaulting another. The Court adopted the bands fixed in R v Hereora [1986] 2 NZLR 164 (CA) for the purpose of sentencing Mr Roberts. The Court concluded the Judge was entitled to find the offending came within band two, stating (at [131]):

Although no weapon was used, the attack on the complainant was extremely vicious, and the injuries he suffered were serious.

The Court considered that the offending justified a starting point of between five and six years and the aggravating factors, namely that the offending occurred whilst on parole for very similar offending, justified an increase to the seven to eight year bracket. The end sentence of eight years was accordingly within the sentencing discretion. The Court also upheld the minimum parole period. It must be borne in mind that in Taueki the Full Court sanctioned an uplift from the existing Hereora bands. Hereora band two was in the region of five to eight years. The range for band two was deliberately increased by two years to ten years.

[34] In the present case the factors that the Judge identified as relevant were:

(a) extreme violence;

(b) serious injury;

(c) attack to the head;

(d) multiple attackers; and

(e) public official.

Even without reference to the public official factor there are four aggravating features in this case. The Judge was right to put the offending as at the cusp of bands two and three.

[35] Mr Watson submitted that the sentence was wrong in principle because the Judge failed to evaluate the seriousness of the particular factors. But the Judge did consider each of the factors he identified as relevant. A separate consideration of the factors supports his conclusion there was extreme violence on the basis that a large number of blows were struck. It was a sustained, determined and methodical attack on Mr Bidois. The appellants did not stop even though they would have known Mr Bidois was in no position to protect himself. The Judge noted that Mr Bidois was repeatedly knocked down while he was struggling to get up. The next issue is the seriousness of the injury. The fracture to Mr Bidois’ neck was serious. But just as serious is the ongoing effect on Mr Bidois. His quality of life has been severely and, likely, permanently affected. Next, as the Judge identified, the appellants chose to attack the head. Finally, this was an unprovoked assault by multiple attackers.
[36] Having regard to those features and the authorities referred to, a start point of nine years for the offending alone was open to the Judge. There are no personal mitigating factors. There are, however, serious personal aggravating factors that the Judge should then properly have taken into account: ss 9(1)(c) and (1)(j) of the Sentencing Act 2002.
[37] Mr Connelly has a long list of convictions including a previous conviction for aggravated assault which led to a term of imprisonment. He was released from imprisonment in August 2006 subject to special conditions. The assault on Mr Bidois occurred while Mr Connelly was subject to release conditions.
[38] Mr Ngaau was on bail for an earlier offence of assault at the time of the assault on Mr Bidois. He also has a list of previous convictions, although not as extensive as Mr Connelly. The personal aggravating circumstances of both would have warranted an uplift of at least one year’s imprisonment in each case. On that basis the end sentence in each case of ten years’ imprisonment, while stern, was available to the Judge. It can not be said to be manifestly excessive.

Non-parole

[39] The Judge was also entitled to find that, having regard to the nature of this attack, it was necessary to impose a minimum term to denounce the conduct the appellants had engaged in, to deter others and to protect the public. Those considerations were appropriate given the nature and severity of the incident in this case and the past history of the appellants. A non-parole period of six years was open to the Judge.

Further submissions

[40] Following the hearing, Mr Muston filed a memorandum to which he attached a copy of this Court’s decision in Grace. We did not call for a response from the Crown, as none was required.

Result

[41] The appeals are dismissed.

Solicitors:
Crown Law Office, Wellington