Connolly v R [2022] NZCA 499 (20 October 2022)

Last Updated: 24 October 2022

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA730/2021 [2022] NZCA 499

	BETWEEN	JAMES FRANCIS CONNOLLY Appellant
	AND	THE KING Respondent

Hearing:	27 September 2022
Court:	Goddard, Ellis and Dunningham JJ
Counsel:	C J Tennet for Appellant S C Carter and W J Tupua for Respondent
Judgment:	20 October 2022 at 11.00 am

JUDGMENT OF THE COURT

1. The appeal is allowed.
2. The sentence of five years and four months’ imprisonment is quashed. A sentence of five years’ imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dunningham J)

• [1] Following a jury trial, the appellant, James Francis Connolly, was convicted on the following charges:

(a) arson;

(b) burglary; and

(c) possession of a Class C controlled drug (cannabis) for the purpose of sale.

• [2] On 3 December 2021, Mr Connolly was sentenced in the District Court to five years and four months’ imprisonment. He now appeals that sentence as being manifestly excessive because:

(a) the starting point was manifestly excessive;

(b) the Judge misapplied the totality principle;

(c) the Judge failed to give credit for s 27 cultural factors;

(d) the Judge failed to give a discount for alcohol and drug issues; and

(e) the Judge failed to give any credit for the time spent on electronically monitored bail.

Background facts

• [3] The facts of the offending were established at trial and set out in Judge Turner’s sentencing notes.^[1]
• [4] Shortly after midnight on 5 December 2019, Mr Connolly went to a house in Masterton to buy $250 worth of MDMA (ecstasy) from Ms McCarthy. However, the deal went sour, and Ms McCarthy kept both Mr Connolly’s money and the drugs she was to supply. Mr Connolly left the house saying, “I’ll be back”.
• [5] Some 15 to 30 minutes later, at about 1 am on the same night, Mr Connolly returned to the house uninvited and went into Ms McCarthy’s bedroom. He had with him a Powerade bottle which contained a purple liquid. Ms McCarthy was not in the room but her friend, Ms Namana, was. Mr Connolly asked where Ms McCarthy was and how long she would be and was told that she might be gone for some time. Mr Connolly then poured the liquid from the bottle onto the carpet and furniture, saying, “tell Krystal this is what you get”. He then set the liquid on fire and left the house. Flames immediately engulfed the bedroom.
• [6] Ms Namana ran to the bathroom where Ms McCarthy was having a shower and told her what happened. Other occupants in the address, including the owner and her daughter, were then awoken. The occupants attempted to put the fire out. The fire brigade was called and put out the fire. While there was no structural damage to the building, the carpet was burnt and the walls were charred. Furniture, clothing and possessions in the room were destroyed.
• [7] The following morning, police located Mr Connolly at his former partner’s home. A search of his car revealed 150 grams of dried cannabis head packaged in five snap lock bags, a set of electronic scales, 19 cannabis plants in two boxes, along with a lighting ballast. The cannabis plants were cared for and had been pruned.
• [8] Mr Connolly was charged with the three charges listed above at [1] and a charge of cultivating cannabis. He defended the charges and gave evidence at trial in which he denied the arson and burglary allegations, including being in the bedroom, arranging the drug deal, and lighting the fire. In relation to the possession of cannabis for sale, Mr Connolly said it was for personal use and that the electronic scales found in his vehicle were left there by an associate. The jury rejected his evidence on those matters, finding him guilty on all but the cannabis cultivation charge, and the Judge concluded they were “right to do so. That evidence was plainly f[2]lse”.²

The District Court sentencing

• [9] In sentencing Mr Connolly, the Judge took arson as the lead offence. The burglary charge was treated as an aggravating feature of the arson. The other aggravating features he identified were:

(a) There was an element of premeditation and planning and, allied to this, Mr Connolly was motivated by malicious intent. Mr Connolly’s actions stemmed from a desire to exact “retribution”. He told Ms McCarthy that he would be back and, shortly afterwards, he was, armed with the accelerant to start the fire.

(b) The house was occupied by a number of persons, some of whom were asleep at the time.

(c) There was a real risk of danger to the occupants of the house who attempted to extinguish the fire and to the fire brigade that attended. The Judge rejected the submission that the risk was diminished in this case because Ms Namana was in the room when the fire started and was able to raise the alarm. The Judge said it was not known how she would react and it was fortunate that she reacted calmly and alerted the others to the presence of the fire.

(d) The impact on the victim, Ms Namana, was also relevant. She described “the flames shooting up real quick” and said she thought Mr Connolly wanted to kill her and that there was a chance she may not have made it out of the room.

(e) The extent of damage to the bedroom and the possessions in it, with the room being left unusable.

• [10] Having regard to all these factors, and to relevant cases,^[3] the Judge adopted a starting point of four years and 10 months’ imprisonment for the arson and the burglary.^[4]
• [11] That starting point was then uplifted by six months’ imprisonment for the drug dealing offence.^[5] The Judge noted the amount found was nearly five and a half times the presumptive level, and there were other signs of drug dealing, including the manner in which the cannabis was packaged and the presence of electronic scales. The offending fell at the lower end of band 2 in R v Terewi and, on a stand-alone basis, would have warranted a starting point of two years’ imprisonment.^[6] However, allowing for the principle of totality, the Judge imposed an uplift of only six months’ imprisonment.^[7]
• [12] While the Judge noted that Mr Connolly had relevant prior convictions, including for a drug dealing offence, they were somewhat historical and he did not uplift the sentence further for Mr Connolly’s previous history.
• [13] In respect of mitigating factors, the Judge referred to the three reports he had before him:

(a) the pre-sentence report;

(b) a s 27 cultural report; and

(c) an alcohol and drug assessment report.

• [14] In his pre-sentence report interview, Mr Connolly acknowledged the arson offending but gave a very different version from the evidence of the Crown witnesses. Mr Connolly told the probation officer that he had visited the Masterton property after having consumed alcohol and cannabis and, for the first time in years, a “puff” on a methamphetamine pipe. He said he went to find his wallet and jacket and (because of the substances he had consumed) became paranoid that someone in the house had stolen his belongings. He claimed he felt such injustice with the whole situation that when he saw a petrol cannister, he took the opportunity to start the fire.
• [15] The Judge noted Mr Connolly advised the report writer his “predominant supports” were his parents who were willing to provide him accommodation on his release. The Judge also noted Mr Connolly had a partner in Court with him that day, although he had told the pre-sentence report writer that he was not in a relationship. The report also referred to a friend, Mr Beazer, whom Mr Connolly had known since the mid 1990s and was willing to support him with employment.
• [16] The pre-sentence report considered the factors contributing to Mr Connolly’s offending were his lifestyle, attitudes, and alcohol and drug use. However, the Judge noted Mr Connolly told probation services that alcohol was “not really an issue for [him] as [he] rarely consumed it”, and the report also noted that his use of drugs was based on self-reporting.
• [17] The Judge then considered the s 27 report, which counsel for Mr Connolly had said revealed:

... a very sad upbringing on the part of the defendant which was totally blighted by alcoholism and violence in his home, a childhood totally characterised by frequent serious beatings of himself and his mother at the hands of his father and describes a child living in constant fear for their safety.

• [18] The Judge acknowledged cultural upbringing or background matters and addiction issues could mitigate offending.^[8] However, he also pointed out that in Zhang this Court said where a defendant wishes to rely on such matters he or she must provide persuasive evidence of their existence and demonstrate a causal connection or nexus between those factors and the offending.^[9] Mere self-reporting is insufficient in this regard. Here, he said the author of the s 27 report had no personal knowledge of Mr Connolly, and her report was based on one telephone interview with him and a telephone interview with Mr Beazer. The Judge considered the report did no more than “[repeat Mr Connolly’s] narrative to her before she provides her analysis and conclusions based on the same”.^[10]
• [19] The Judge further observed that s 27 of the Sentencing Act 2002 refers to a report “on an offender not by an offender”.^[11] The section contemplates a report from family or whānau members or others who know the defendant and his or her background. While the Court does receive reports from non‑family members, the Judge said to qualify as a cultural report there needed to be some verification of the matters contained in it from family members who know the defendant. Here, he considered the s 27 report filed did not meet those standards. The report writer had no prior relationship with Mr Connolly and her report merely repeated information he provided. While the report writer also spoke to Mr Beazer, the Judge said it was not clear from the report what Mr Beazer was able to independently confirm. The Judge also noted the apparent contradiction between the report and the current position where Mr Connolly’s parents were said to be his principal supports. He said there could and should have been verification of the claims about Mr Connolly’s upbringing and life referred to in the report. The Judge said this was particularly the case when Mr Connolly’s veracity was “very much questionable” given the various accounts Mr Connolly had given about what happened on that night to the Court and then to the probation officer.^[12]
• [20] The Judge was equally sceptical about the information contained in the alcohol and drug report, again noting it was based only on Mr Connolly’s self-reporting and that it was “unable to be reconciled with what [he] told the probation officer in significant respects”.^[13] For example, to the alcohol and drug report writer, Mr Connolly said he had reduced his alcohol consumption at age 36 to once per month, however, he would drink to intoxication, and yet to the probation officer, he said he would rarely consume alcohol and it was not an issue for him. He told the alcohol and drug report writer that, since 2008, he had reduced his methamphetamine use to two to three times a year, but to the probation officer he said that on the night of the offending he had had a puff of methamphetamine for “the first time in years”.
• [21] While Mr Connolly was more consistent in the description of his cannabis use, the Judge considered there was a “dearth of independent information” to support his statement that he had a cannabis addiction.^[14] The Judge acknowledged that Mr Connolly had previous convictions for possessing and cultivating cannabis but said they did not, without more, indicate an addiction. Overall, he held there was no clear evidence of an addiction which could mitigate culpability and, given Mr Connolly’s dubious veracity, little weight could be placed on his self-reporting.^[15]
• [22] In any event, the Judge noted that the burglary and arson charges could not logically be linked to any addiction issue. The evidence at trial did not indicate he was under the influence of any drug at the time of the offending, rather, that he sought to buy drugs and was unsuccessful, so he set fire to the property as retribution. There was also no evidence to suggest that his possession of cannabis for supply was to fund or part-fund a cannabis addiction.
• [23] For all these reasons, the Judge did not allow a credit for the claim to mitigating factors arising from those reports.^[16]
• [24] In respect of remorse, Mr Connolly told the probation officer he regretted his actions and accepted responsibility for what he had done, and a letter expressing remorse was handed up at sentencing. However, the Judge noted the explanation for his offending in the letter was inconsistent with the evidence given on oath at trial, and the Judge said he was:^[17]

... doubtful whether [Mr Connolly’s] comments to the probation officer or in this letter are genuine expressions of remorse or acceptance of [his] responsibility. They are more likely to be an attempt to garner a credit at sentencing.

• [25] The Judge therefore placed no weight on the “very late expressions of remorse”.^[18]
• [26] The Judge then imposed the sentence of five years and four months’ imprisonment which is now under appeal.^[19]

Appeals of sentence

• [27] An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.^[20] The focus is not on the process by which the sentence was reached, but on the correctness of the end result.^[21]

Grounds of appeal

Were the starting points manifestly excessive?

• [28] Mr Tennet, for the appellant, contends that the starting point for both offences was manifestly excessive. He acknowledges that there is no guideline judgment for arson and, as this Court said in Erickson v R, each case will depend on its own facts.^[22] While Erickson noted that appellate authorities generally adopt starting points in the three to five-year range, the Court also said, “lower starting points may be adopted in particular circumstances”.^[23]
• [29] Mr Tennet submitted that the element of premeditation and planning in this case was far less than in Ure v R (where a starting point of four years six months’ imprisonment was taken)^[24] and less than in Erickson (where a starting point of three years was taken). By implication, Mr Tennet suggests the starting point should have been much lower than four years 10 months’ imprisonment.
• [30] However, it is the combination of circumstances which is relevant, and a particularly aggravating factor in this case is that occupants were asleep inside the home. As this Court pointed out in French v R, cases where occupants are asleep inside a house typically attract the starting point in the region of five to six years’ imprisonment.^[25] We do not consider Erickson is a comparable case. That involved burning down an unoccupied old farmhouse as revenge for being evicted. It did not involve the immediate risk to life that arose in the present case.
• [31] In our view, the starting point of four years 10 months’ imprisonment was within the available range, albeit at the upper end, and should not be disturbed on appeal.
• [32] In respect of the possession of cannabis for supply, Mr Tennet submits that two years was excessive given:

(a) the limited indicia of dealing;

(b) the small amount of cannabis involved; and

(c) the fact he was acquitted of cultivation.

Mr Tennet is also critical of the use of the bands in R v Terewi, saying that a sentence of two years “might involve kgs rather than 150g”. In his view, a one year starting point would have been appropriate.

• [33] We accept that, based on the description of the offending, the Judge was entitled to place it at the bottom end of band 2 of R v Terewi. The quantity of cannabis, the presence of digital scales and the nature of the packaging all indicated commercial dealing in cannabis. Comparable cases where a two-year starting point was adopted include R v McDonald, where 41 grams of cannabis and 48 small plants were found, and Wano v R, where 400 grams of dried cannabis and two mature cannabis plants were found.^[26] There are, however, a number of cases of low-level dealing where lower starting points were adopted, ranging from six months to 18 months.^[27]
• [34] While a lower starting point than two years could have been adopted, we accept a starting point of up to two years was available. However, the more material issue on appeal is the sentence actually imposed. Here, the uplift applied for this offending was only six months, significantly less than the starting point either party contends for, and any criticism of the starting point cannot be sustained in light of that adjustment.

Did the Judge misapply the totality principle?

• [35] Mr Tennet referred to the requirement under s 85 of the Sentencing Act to consider totality and stated, without elaboration, that the Judge “misapplied the totality principle”, resulting in a manifestly excessive starting point. We apprehend Mr Tennet’s submission was that if a one-year uplift was taken as the starting point, then, applying the same percentage adjustment for totality, the uplift should have been only three months.
• [36] However, we do not consider adjustments for totality can be approached in such a mechanical way. The requirement under the Sentencing Act is simply to ensure that when cumulative sentences of imprisonment are imposed, they do not result in a total period of imprisonment “wholly out of proportion to the gravity of the overall offending”.^[28] Given the sentence already imposed for the arson, the Judge decided that an uplift of only six months, resulting in a sentence of five years four months, was appropriate to reflect the gravity of the overall offending. We see no error in his approach, and this ground of appeal fails.

Did the Judge err in disregarding the s 27 report?

• [37] Mr Tennet’s primary submission on this ground was that, by dismissing the value of the s 27 report, the Judge effectively did not “hear” the report as he was required to do under s 27(2) of the Sentencing Act. Mr Tennet was critical of the Judge waiting until sentencing before identifying his concerns with the report, saying these should have been identified before embarking on sentencing so that they could be addressed in advance.
• [38] In any event, Mr Tennet submitted the Judge was wrong to dismiss the content of the s 27 report because it primarily relied on self-reporting. First, mitigating factors only need to be established on the balance of probabilities.^[29] Furthermore, the report writer emphasised her independence and, in Mr Tennet’s submission, could have been expected to filter out anything she found “preposterous, unreliable or unusual”. In any event, she did verify information from Mr Beazer, whom she described as “one of the few people [Mr Connolly] knows who understands [Mr Connolly’s] experience”. Mr Tennet also said that the fact Mr Connolly defended the charges at trial with an account which was demonstrably false, did not mean that his reporting of childhood experiences should be written off. Mr Tennet also sought to explain the inconsistency between the reported abuse in childhood and the support he now got from his parents, saying a violent and drunken adult who mistreats their children is not necessarily the same person when they are older.
• [39] In our view, the submission that the report writer was not “heard”, as required by s 27(2), cannot be sustained. The Judge clearly read and assessed the material in the s 27 report but reached the view he could put little, if any, weight on it. The suggestion that the Judge needed to indicate those views in advance of sentencing is misguided. It is the responsibility of the defendant to provide cogent and credible material to support a claim to mitigating circumstances. It would place an intolerable burden on busy District Court Judges if they had to indicate, in advance of sentencing, whether that material was likely to carry any weight.
• [40] We are also sympathetic to the Judge’s assessment of what weight he could place on the report. The contention that an abusive childhood caused Mr Connolly’s adult offending was, on its face, inconsistent with his parents now being his chief support people and warranted further investigation in those circumstances. That corroboration could not come from Mr Beazer who only met Mr Connolly once he had left home and did not have first-hand experience of Mr Connolly’s childhood. The s 27 report can also be contrasted with the pre-sentence report, where Mr Connolly’s mother was contacted by phone and advised that she and Mr Connolly’s father “have always supported their son and will continue to do so”.
• [41] While it is a reasonable inference from the s 27 report that Mr Connolly uses cannabis regularly and also deals in it, we concur with the Judge that there is a no clear link drawn between the commission of the current offence and the alleged addiction to cannabis. As the Court of Appeal in Zhang noted:^[30]

... [A]ddiction should only be relevant where it is causative of the offending, and that addiction should not be treated as having mitigating effect in cases where the offender operated above street level or self-sufficient dealing. We accept that non-causative addiction will be of little mitigatory relevance ... We also accept that commercial dealing is likely to be inconsistent with the impairment of the ability to exercise rational choice, which is what diminishes culpability and justifies discounting the sentence.

The Court in Zhang also held that “any such discount should be based on persuasive evidence, as opposed to mere self-reporting”.^[31]

• [42] Here, we have no reason to depart from the Judge’s sceptical view of Mr Connolly’s account of an abusive childhood. However, even if we accepted it, there is no clear nexus between this and the arson offending which seemed motivated by retribution. There is also a dearth of evidence to suggest Mr Connolly is addicted to cannabis such that it reduces his culpability in respect of the present offending. While we accept there is evidence that he uses and deals in cannabis (as demonstrated by his criminal record), it does not disclose how that mitigated his culpability for the crime of arson or for commercial cannabis dealing.
• [43] For these reasons, this ground of appeal fails.

Did the Judge err in disregarding the alcohol and drug report?

• [44] Much the same issues arise in relation to the drug and alcohol report. Again, Mr Tennet says the Judge failed to appreciate that Mr Connolly’s drug use only needed to be proved on the balance of probabilities and, furthermore, Mr Beazer was able to confirm Mr Connolly’s drug use. Additionally, Mr Connolly’s multiple convictions over a 20-year period for possession of cannabis or cannabis products, and his conviction in 2012 for possession for supply and cultivation, corroborated the fact he had a long-term cannabis dependency and pattern of cannabis abuse. Mr Tennet also suggested that a charge in 2016 of domestic abuse “might” have been fuelled by alcohol.
• [45] However, again, we consider that Mr Tennet has overlooked the need to link the history of cannabis use and dealing to the current offending and demonstrate how it mitigates his culpability. This was not done, so this ground of appeal also fails.

Did the Judge err in failing to provide a discount for time spent on EM bail?

• [46] No credit was sought at sentencing for the seven and a half months Mr Connolly spent on EM bail.^[32] Mr Tennet submits this was an error and a discount should have been given.
• [47] We accept this was an error as s 9(2)(h) of the Sentencing Act requires the Court to consider time spent on EM bail when sentencing. However, there is no requirement to provide a one for one credit.^[33] The Crown submits, and we agree, that a discount in the range of three to four months should have been afforded for time spent on EM bail. We would apply a discount of four months on the sentence imposed for this factor.

Result

• [48] The appeal is allowed.
• [49] The sentence of five years and four months’ imprisonment is quashed. A sentence of five years’ imprisonment is substituted.

Solicitors:
Crown Solicitor, Wellington for Respondent

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^[1] R v Connolly [2021] NZDC 24025 [District Court judgment].

^[2] At [11].

^[3] Ure v R [2014] NZHC 948; and Erickson v R [2012] NZCA 449.

^[4] District Court judgment, above n 1, at [29].

^[5] At [31].

^[6] R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA).

^[7] District Court judgment, above n 1, at [31].

^[8] District Court judgment, above n 1, at [42], citing Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

^[9] Zhang, above n 8, at [148].

^[10] District Court judgment, above n 1, at [41].

^[11] At [43].

^[12] At [44]–[48].

^[13] At [49].

^[14] At [53].

^[15] At [54]–[56].

^[16] At [61].

^[17] At [65].

^[18] At [66].

^[19] At [67]–[68].

^[20] Criminal Procedure Act 2011, ss 250(2) and 250(3).

^[21] Ripia v R [2011] NZCA 101 at [15].

^[22] Erickson v R, above n 3, at [11].

^[23] At [11], citing Howarth v R [2010] NZCA 523 at [51].

^[24] Ure v R, above n 3, at [18].

^[25] French v R [2014] NZCA 297 at [10].

^[26] R v McDonald HC Whangarei CRI-2011-088-3522, 5 September 2011 at [14]; and Wano v R [2019] NZHC 800 at [17].

^[27] Bairds v Police [2019] NZHC 3181; Devereux v Police [2017] NZHC 167; Needham v Police [2013] NZHC 688; Mowberry v R [2012] NZHC 969; and R v Rauhihi HC Palmerston North
CRI-2008-031-1438, 1 May 2009.

^[28] Sentencing Act 2002, s 85(2).

^[29] Zhang v R, above n 8, at [148].

^[30] Zhang v R, above n 8, at [147].

^[31] At [148].

^[32] Mr Connolly was granted EM bail on 10 February 2020. He remained compliant on EM bail and, as a result, the EM condition was removed on 22 September 2020.

^[33] Parata v R [2017] NZCA 48 at [11].