Skilling v R [2011] NZCA 463 (16 September 2011)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

Skilling v R [2011] NZCA 463 (16 September 2011)

Last Updated: 29 September 2011

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

[1] 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]
[2] 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

[3] 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.
[4] 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”.
[5] 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.
[6] 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.
[7] 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 reconstruction of his right elbow, his right wrist was injured, and he suffered significant bruising over the head and around the eye. As well as the victim’s physical injuries, there were a number of other adverse effects on the victim, including on his ability to work. There were also adverse effects on the victim’s girlfriend.
[8] Mr Skilling has a number of previous convictions for violent offending,[3] including an aggravated robbery conviction in July 2008 (involving a group street attack on a man to steal his cellphone and wallet). Mr Skilling served a term of imprisonment on that charge after (according to the pre-sentence report) breaching his sentence of home detention, citing boredom with the restrictive conditions of the sentence as the reason for that breach.

Sentencing remarks

[9] Judge McKegg sentenced Mr Smith and Mr Skilling on the basis that they were both part of the group that caused the attack and that it was impossible to separate them out from each other and from any other person involved in the attack. To summarise Mr Skilling and Mr Smith’s roles in the assault, Judge McKegg said:[4]

What part you both took in the mechanics of that violent and terrible assault is unclear, but what is crystal clear is that you both were part of the group that caused the attack, and I find it impossible to separate you from any other person involved in it. You, Smith, were the catalyst for this to start and you followed it through. And you, Skilling, were the person who ran down the victim and held him so that he could have the beating that you had decided as a group he was going to get.

[10] The Judge saw no reason to depart from the starting point of eight years imprisonment imposed with regard to their co-offender Mr Head,[5] and which had been upheld on appeal by the High Court.
[11] The Judge considered that the attack had the aggravating features of being an unprovoked and violent assault causing serious injury and involving an attack to the head of the victim. It also involved multiple attackers and from the minute that the victim was held back, he was vulnerable to that assault and at the end, in the second part,[6] he was totally vulnerable to the violent attack.
[12] The Judge considered that there should be an uplift of one year, in respect of the earlier offending of both defendants. He remarked that there seemed to be, in their lives, “some form of repetitive street violence which just simply must not occur again in this city”.
[13] As to the issue of a minimum term of imprisonment, the Judge commented that it is absolutely essential that like-minded people are aware that sentencing for this type of offending will be severe, and that this offending will not be tolerated. He also commented that both defendants must be held accountable for the harm that they had done to their victims and to their community. In imposing sentence, the Judge said that he intended to denounce their conduct. He also expressed the view that society needed to be protected from them. He thus imposed in each case a minimum term of imprisonment for 50 per cent of that sentence.

Grounds of appeal

[14] Mr Ruane, on behalf of Mr Skilling, argues that:

• (a) the starting point set by Judge McKegg was too high;
• (b) the uplift for prior convictions was too high;
• (c) Mr Skilling’s youth was not taken into account; and
• (d) a minimum non-parole period should not have been imposed.

Our assessment

[15] We consider the starting point well within range for the reasons given by Judge McKegg. Equally, given Mr Skilling’s prior history and in particular the recent aggravated group street robbery conviction, the uplift was also within range.
[16] We accept that no specific allowance was made for Mr Skilling’s youth (he had just turned 18 at the time of the offending). However, the Judge was aware of Mr Skilling’s age and presumably decided that no allowance for age was appropriate in the circumstances. It would have been preferable for the Judge to deal specifically with Mr Skilling’s youth and outline the reasons why he was giving no deduction for youth.
[17] With serious crimes (as this was) any consideration of youth will often legitimately have to cede to the public interest.[7] In this case Mr Skilling was assessed as being at a high risk of re-offending, particularly given his unresolved alcohol and substance abuse issues. The Judge obviously (and legitimately) considered that Mr Skilling had shown a propensity for street violence and that society needed to be protected from him.[8]
[18] That said, it seems from the pre-sentence report that Mr Skilling has shown talent in the sporting arena in the past and does (belatedly) appear to show some understanding of the effect of his actions on the victim and his girlfriend, some remorse and some desire to get his life back on track.
[19] In these circumstances some judges may have made a minimal adjustment for Mr Skilling’s youth. However, other judges would not, given the need for public protection and the seriousness of the offending. In our view, the overall sentence was well within range and the absence of any adjustment for youth cannot render the sentence manifestly excessive.
[20] Mr Ruane, on behalf of Mr Skilling, argues that the lengthy term of imprisonment is sufficient in itself to denounce and deter and that it was unnecessary to impose a minimum term of imprisonment. We accept the Crown’s submission that this is essentially an argument that the issue of deterrence and community protection should be left to the Parole Board. Section 86 of the Sentencing Act 2002 does not allow courts to abdicate their role to the Board in this manner.[9]
[21] We agree with Judge McKegg that this was serious offending and his implicit finding that eligibility for parole after serving one-third of the sentence would not satisfy the need for denunciation and deterrence of such behaviour. In such cases, the imposition of a minimum period of imprisonment is not uncommon.[10]

Result

[22] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for the Respondent

---

[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.
[3] As well as having been dealt with by the Youth Court for a number of similar offences.
[4] At [14].

[5] This starting point is close to the top of the second band in R v Taueki [2005] 3 NZLR 372 (CA).
[6] Refer to [6] above.

[7] R v Rapira [2003] 3 NZLR 794 (CA) at [120]; R v Wilson [1989] 2 NZLR 308 (CA); R v N [1998] 2 NZLR 272 (CA).
[8] Refer to [12]–[13] above.
[9] R v G [2009] NZCA 485 at [17].
[10] Taueki at [57].