R v Connelly [2010] NZCA 52 (4 March 2010)

Last Updated: 10 March 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA559/2009 [2010] NZCA 52

BETWEEN THE QUEEN
Appellant

AND LES TASOS CONNELLY
Respondent

Hearing: 23 February 2010

Court: Baragwanath, Potter and Ronald Young JJ

Counsel: S B Edwards for Appellant
M B Dodds for Respondent

Judgment: 4 March 2010 at 11am

JUDGMENT OF THE COURT

A The application for leave to appeal is granted.

B The appeal against sentence is allowed.

100. The sentence of three years’ imprisonment is quashed and substituted with five years’ imprisonment.

4. The minimum period of imprisonment of six months is quashed and substituted with 18 months.

____________________________________________________________________

REASONS OF THE COURT
(Given by Potter J)

Introduction

[1] The Solicitor-General seeks leave to appeal against a sentence of three years’ imprisonment, with a minimum period of imprisonment of six months, imposed on the respondent in the High Court at Whangarei on 14 August 2009. The sentence is cumulative on a ten-year sentence already being served, which in turn has a minimum period of imprisonment of six years. The respondent was charged together with four others (one of whom was discharged under s 347 of the Crimes Act 1961) with wounding with intent to cause grievous bodily harm. He entered a plea of guilty to that charge early in the trial and was subsequently sentenced by the trial Judge, Priestley J.

Issue on appeal

[2] The issue raised by this appeal is whether the sentencing Judge properly applied the totality principle in reducing the sentence imposed on the respondent to three years’ imprisonment.

Grounds of appeal

[3] The Solicitor-General seeks leave to appeal on the grounds that the sentence is manifestly inadequate and fails to reflect the seriousness of the offending and the respondent’s culpability. The Crown submits that, on a totality basis, an overall thirteen-year term for two serious grievous bodily harm offences with multiple aggravating features is at least two years too short. The Crown seeks an increase in the cumulative sentence to at least five years’ imprisonment and also seeks a proportionate increase in the minimum period of imprisonment.
[4] The respondent opposes the Crown’s application. He submits that the sentencing Judge adopted a principled approach to sentencing and that the sentence imposed was within the proper discretion of the sentencing court.

The offending

[5] The respondent, his co-offenders and the victim were all prisoners at the Northland Regional Corrections facility at Ngawha when the victim was attacked on 8 March 2008. The attack was incited and directed by one of the co-accused, Jonothan Poutai, who apparently believed that his former partner had had some form of sexual relationship with the victim while Mr Poutai was in prison. Mr Poutai did not assault the victim himself, but directed others to carry out the attack on his behalf. Three “waves” of assaults took place in the victim’s cell carried out by the four offenders in pairs. In wave one, the respondent first cleared the victim’s cellmate out of the cell, then he and a co-offender, Mr Hoeer, entered, shut the door and pushed and punched the victim about the head and body. (Priestley J described the injuries the victim sustained during this first wave as moderate rather than permanent as there was no evidence of bleeding at that stage).
[6] The victim was seen sitting up on a bench in his cell after the first wave of the attack. Mr Poutai found this unacceptable. He expressed the view to the other offenders that the victim had obviously not “got the message”. Two of the other offenders, Mr Te Whata and Mr Briggs, then carried out the second wave of violence. They pushed the victim to the ground in the shower area of the cell, and kicked and stomped on him all over his head and body. Blood was seen to flow from the victim at that stage.
[7] The third attack was carried out by Mr Hoeer and Mr Te Whata. The victim was repeatedly punched and kicked and hit in the head by Mr Hoeer with an improvised weapon made out of torch batteries inside a sock. These blows were audible to prisoners outside the cell in the communal areas of the wing. During this wave Mr Hoeer was also seen to try and snap the victim’s leg. While the victim was lying on the floor Mr Hoeer twice lifted him by the shoulders a few feet off the ground and slammed his head into the floor.

Sentencing

[8] Priestley J sentenced the respondent together with Mr Te Whata, who also entered a guilty plea to the charge of wounding with intent to cause grievous bodily harm.
[9] After summarising the facts, the Judge referred to the serious injuries inflicted on the victim which had left him permanently damaged, with his life changed drastically. He also referred to the victim impact statements by the victim’s two sisters, particularly their distress because the victim’s memory was significantly impaired by the injuries he received.
[10] The Judge then considered the personal circumstances of the respondent. He noted that he was 29 years of age, that he was born and lived with his whanau in the north, that he described his childhood as being “rough” and that after his parents separated when he was about twelve, his life appeared to have disintegrated.
[11] The Judge recorded that the respondent has forty-eight previous convictions between 1996 and 2008. These included eight previous convictions for violence, including aggravated assault in 2003 and wounding with intent to cause grievous bodily harm in 2006, for which Mr Connelly was currently serving a ten-year sentence, imposed in July 2008. The Judge noted that the ten-year sentence had been reviewed by this Court in December 2008[1] and was left intact being well within the range given the nature of the offending.
[12] In relation to aggravating factors of Mr Connelly’s offending, the Judge noted premeditation, serious injury, being a party to attacking around the head, multiple attackers, a gang element (Mr Poutai was a member of the Black Power gang), vigilante action and vulnerability of the victim. The Judge noted that the victim was a prison inmate and that there was no way he could avoid people who were minded to attack him. He said that in the case of Mr Connelly there was no question of a weapon being involved.
[13] As to mitigating factors, the Judge said he gave some credit to Mr Connelly for remorse and that he was also prepared to give credit for his guilty plea. He based that on Mr Connelly’s preparedness to plead guilty to a lesser charge at a much earlier stage. However, he emphasised that there could be no possible criticism of the Crown for pursuing the more serious charge to which the respondent eventually pleaded guilty.
[14] In selecting a starting point in terms of the bands in R v Taueki[2] the Judge said that Mr Connelly was one of the initial instigators who took steps to let Mr Poutai or others know when the coast was clear and when the victim’s cell was emptied out, and that he was involved in the first wave and reported back to Mr Poutai after that. The Judge accepted that Mr Connelly was not involved in the second and third waves but found that he was nonetheless a party. He took as a starting point eight years. He said: “I pick that level deliberately, which sits a year below the lower reaches of Taueki Band 3, to reflect your overall culpability”.
[15] He then added fifteen months to reflect the aggravating features of the respondent’s previous offending which included the 2006 offending for which he was on remand at the time of this offending.
[16] For the guilty plea and willingness to accept criminal responsibility at an earlier stage he allowed a discount of 22 per cent, bringing the end sentence to seven years and four months’ imprisonment.

The Judge considered the totality principle. He noted that the current ten year sentence created difficulty in sentencing. He said that there was no option but that the sentence he imposed must be cumulative on the sentence already being served, but that he must have in the forefront of his mind the principles of totality in s 85 of

the Sentencing Act 2002. He considered that the best way of reflecting totality was to impose a sentence of three years’ imprisonment which was to be cumulative on the current ten-year sentence.

[17] He imposed a six-month minimum period of imprisonment to be cumulative on the six-year minimum period of imprisonment imposed in respect of the 2006 offending.

The sentence for this offending: seven years four months’ imprisonment

[18] The Crown accepted the focus of the appeal was the application of the totality principle but nevertheless took issue with the “pre-totality” sentence of seven years four months imposed for this offending, on two grounds:

(a) The starting point of eight years was too low. The Crown submitted that the offending warranted a starting point of at least nine years’ imprisonment. However, the Crown acknowledged that the eight year starting point adopted by the Judge had to be balanced against the fifteen-month increase he applied for the respondent’s previous criminal record which resulted in a revised starting point of nine years three months.

There is little in this point. The effective starting point advocated by the Crown and that adopted by the Judge after he had increased the eight year starting point by fifteen months for aggravating factors, leads to approximately the same point, before mitigating factors are taken into account.

(b) The discount of 22 per cent was outside the guidelines in R v Hessell.[3]

We were advised by counsel that the discount given by the sentencing Judge was consistent with an indication he gave on the first day of

trial before the prosecution witnesses started to give evidence, and following consultation with counsel. The indication was that a discount of approximately 20 per cent in sentences to be imposed, would be available for those who entered guilty pleas promptly. Mr Dodds, counsel for the respondent who was also counsel at trial, explained that the availability of this discount was continued and confirmed by the Judge up to the point when the respondent entered his guilty plea.

In those circumstances, unless the respondent was given the opportunity to withdraw or confirm his guilty plea, the sentencing court was bound by the discount indicated by the Judge at trial: R v Edwards;[4] R v Smail.[5]

We further note that the judgment of this Court in Hessell on which the Crown relied, was not issued until 2 October 2009 and was therefore not available to the sentencing Judge.

[19] The sentence for the charge of wounding with intent to cause grievous bodily harm of seven years four months’ imprisonment took into account the respondent’s role and his culpability in the overall offending, as assessed by the Judge. The sentence was perhaps lenient, but reflected that the respondent’s culpability was less than that of his co-offenders. No issue is taken by the Crown with the sentence on a disparity basis.

Totality

[20] We turn to consider the central issue of totality. Section 83 of the Sentencing Act 2002 relates to cumulative and concurrent sentences of imprisonment. Section 84 provides guidance on the use of cumulative and concurrent sentences. There is no dispute that in this case cumulative sentences are appropriate in terms of s 84(1) because the offending in 2006 and 2008 was quite distinct and discrete, though in both cases a significant level of violence was involved.
[21] Section 85 provides:

Court to consider totality of offending

(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3) If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4) If only concurrent sentences are to be imposed,-

(a) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b) each of the lesser offences must receive the penalty appropriate to that offence.

[22] The Crown submitted that:

... the total term of 13 years imprisonment the respondent is serving does not adequately reflect his overall criminality. This Court categorised the 10 year sentence imposed on him for carrying out an unprovoked attack on a volunteer lifeguard which had serious and permanent effects for the victim as stern, but within the available range. This second violent offence, carried out while he was awaiting trial for the first, had equally serious aggravating features and on its own warranted a sentence in the region of nine years’ imprisonment. It is submitted that the proper application of the totality principle would have resulted in a cumulative sentence of at least five years, bringing the total term to 15 years imprisonment.

[23] The Crown submitted that if an offender such as the respondent who has already committed one serious offence considers his position is unlikely to become significantly worse if he commits another offence, the deterrent effect of sentencing is lost.
[24] The Crown also emphasised public interest concerns about offending within our prisons and that it must be made clear to prisoners that re-offending while incarcerated (particularly carrying out serious attacks on staff and fellow prisoners), will attract real and significant consequences. The Crown further submitted that there is a need to impose sentences which act to protect the community from recidivist violent offenders and that a heightened risk can be considered to attach to those who commit serious offences within the highly regulated environment of a prison as this demonstrates a lack of control or regard for consequences.
[25] The respondent’s primary submission was that the ultimate sentence imposed was within the proper discretion of the sentencing Court. Mr Dodds made submissions about the pre-totality sentence of seven years four months’ imprisonment. We have previously considered this matter at [18]-[19]above. He also addressed disparity. However, this aspect was taken into account by the sentencing Judge in imposing the pre-totality sentence of seven years four months and is not put in issue by the Crown’s appeal.
[26] As to totality, Mr Dodds submitted that it was clear that the sentencing Judge was very much alive to the need to take care with the issue of totality and was clearly conscious of the need to hold the respondent accountable for the harm done to the victim and also to denounce and deter the respondent’s repetitive offending. He submitted that the end sentence of three years was one available to the sentencing Judge within the range of his discretion.
[27] The respondent’s 2006 offending involved an unprovoked attack on a volunteer lifeguard which left him with serious injuries and both long and short-term memory loss. While no weapons were used, there were two attackers who delivered a significant number of blows, including to the victim’s head. The sentence imposed was ten years’ imprisonment.
[28] In this offending while on remand pending trial for that offending, the respondent was involved in serious violence against another inmate, as a principal offender in the first “wave” and as a party to the second and third “waves”. Again, the victim has been left with permanent damage including memory loss.
[29] In R v Ali,[6] the English Court of Appeal confronted application of the totality principle when the appellant re-offended while in prison. The appellant had been sentenced to nine years’ imprisonment for wounding. While serving that sentence he was involved in a prison mutiny and was convicted of three offences: participating in a prison mutiny and two charges of causing grievous bodily harm to two prison officers who were seriously injured in the attack.
[30] Mr Ali was sentenced to two concurrent sentences of twelve years’ imprisonment for those offences, which were imposed cumulatively on his existing sentence of nine years’ imprisonment. The sentence was upheld on appeal. Buxton LJ delivering the judgment of the Court said:[7]

The only point in this case, it is realistically acknowledged, is that Mr Ali, at the age of 32, faces a 21 year period of imprisonment. He has a very bad record, as the judge pointed out, of some 20 offences, including not only the wounding that led to the nine years sentence of imprisonment but, we are also told, an offence of manslaughter, about which we know very little other than that he has been convicted of that extremely serious offence.

There is no doubt at all that the judge was totally correct in the severe view that he took of this act of mutiny and gratuitous violence upon those prison officers. In our judgment, he is to be commended for the stern attitude that he took, which is one that this Court fully supports. We hope that the message will be conveyed to anyone who is contemplating further acts of this sort. The total of this sentence is very long indeed. The judge realised that and, as his sentencing remarks indicate, he had that in mind. However, we are quite satisfied that what he intended to say and convey was that in a case where it was inevitable that the second sentence should be served consecutively, where persons had engaged in conduct of the sort in which Mr Ali engaged, in one of Her Majesty’s prisons, the court is going to be little moved by complaints that their own conduct placed them in a position where they were faced with a sentence as long as that of Mr Ali. Although the outcome is a very long sentence indeed for a man of his age, the judge in our view was right not to be persuaded by the arguments of totality that were put before him to reduce what was otherwise in every other respect a totally justified and correct sentence.

[31] We agree with, and endorse the statement of the English Court of Appeal. In a case such as this, where the respondent was subject to a nine-year sentence for previous violent offending, any regard to the totality principle can only be minimal, given the gravity of the overall offending. Re-offending, particularly violent re-offending, while in prison, must have significant consequences for the offender, notwithstanding that the outcome is a very lengthy period of imprisonment.
[32] Mr Dodds sought to distinguish Ali on the basis that the appellant in that case was a sentenced prisoner while Mr Connelly was on remand. It matters not. The principle set out above applies equally to all those who are in custody in our prisons.
[33] Had Mr Connelly been sentenced at the same time for both serious violent offences the aggregate of the sentences would have been seventeen years and four months. The sentence of ten years is fixed. The issue is: by how much should the sentence of seven years four months be reduced to give effect to the totality principle?
[34] It is at least arguable that, applying s 85(2) of the Sentencing Act, a total sentence of seventeen years four months would not be wholly disproportionate taking into account the gravity of the respondent’s overall offending. Nevertheless, on a Solicitor-General appeal, we consider it is appropriate that the sentence of seven years four months be reduced to five years’ imprisonment, imposed cumulatively on the sentence of ten years. The total of the sentences is thus fifteen years’ imprisonment.

Minimum period of imprisonment

[35] The Crown seeks an increase in the minimum period of imprisonment of six months imposed by the sentencing Judge, to eighteen months. Together with the minimum period of imprisonment of six years imposed in respect of the ten year sentence, this gives a total minimum period of imprisonment of seven and a half years. This period equates to 50 per cent of the total of the two sentences. We agree with the Crown that this is at the bottom of the permissible range, as is appropriate on a Solicitor-General appeal, and that a longer minimum period, had one been imposed by the sentencing judge, might not have been challengeable by the respondent.

Result

[36] Leave to appeal is granted. The appeal is allowed.
[37] The sentence of three years imprisonment and a minimum period of six months’ imprisonment are quashed.
[38] A sentence of five years and minimum period of imprisonment of 18 months are substituted.

Solicitors
Crown Law Office, Wellington for Appellant

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[1] R v Connelly & Ngaau [2008] NZCA 550.
[2] R v Taueki [2005] 3 NZLR 372 (CA).
[3] R v Hessell [2009] NZCA 450 at [18].
[4] R v Edwards [2006] 3 NZLR 349 also reported as Sipa v R [2006] NZSC 52; (2005) 22 CRNZ 978 (SC).
[5] R v Smail [2008] 2 NZLR 448 (CA).
[6] R v Ali [1998] 2 Cr App R (S) 123 (CA).
[7] At 125.