THE QUEEN v PHILLIP CRAIG WATSON [1999] NZCA 317 (16 December 1999)

IN THE court of appeal of new zealand

ca365/99

THE QUEEN

V

PHILLIP CRAIG WATSON

Coram:	Thomas J Blanchard J Tipping J
Decision: (ex parte)	16 December 1999

judgment of the court delivered by blanchard j

[1] Phillip Craig Watson pleaded guilty on charges of assault, injuring with intent and kidnapping.He was sentenced on 16 August 1999 in the District Court at Hamilton to 3 years and 9 months imprisonment.He appeals against his sentence to this Court.

[2] On 18 July 1998 the appellant's motor vehicle was stolen from a gathering in Auckland.The appellant made inquiries and came to believe that the victim in this matter, Huia Day, was connected with the theft.On 20 July the appellant and a group of his associates drove from Auckland to the victim's address in Hamilton in an expedition to locate the stolen car.

[3] The appellant and his associates broke into the victim's home where the victim, his partner, their young child and a flatmate were present.The appellant's associates subjected Mr Day to a sustained and serious assault. The appellant was present during the assault and asked the victim questions about the location of his car.Following the assault the appellant's associates kidnapped the victim and took him away in a car, initially in the boot.He was released some kilometres away.

[4] The appellant applied for legal aid to appeal against his sentence.After consideration of his case by three judges of this Court that application was declined by the registrar.The decision was subsequently confirmed after the appellant applied for a review.The appeal has therefore been determined on the basis of written submissions received from the appellant.

[5] The appellant advanced four main grounds of appeal against sentence. First, he submitted that the sentence was unjustly disparate with that of his co-offenders Paul Shaw and Glen McDonald: Mr Shaw received only a fine and Mr McDonald received 21 months imprisonment.The appellant said that his own involvement in the crime had been exaggerated and that things had gone further than he intended.Second, the appellant makes various complaints about his counsel.Third, the appellant complains that more was not made at sentencing of the alleged involvement of the victim in the theft of his car and the inadequate investigation of the theft by the police.Finally, the appellant points to a number of personal circumstances: the improvements that he has made in his life including his work in the computer wholesale industry; the support he has from his girlfriend and family; and the poor health of his father.

[6] None of these grounds persuade us that the sentence should be altered.The appellant did not directly participate in the assault and it may have become more serious than he had originally intended; but he to some extent directed it and during it asked the victim questions as to the whereabouts of the his car. The sentencing Judge described the appellant as something of the ringmaster.

[7] There is no issue of disparity with Mr Shaw and Mr Green, neither of whom was directly involved in the entry into the victim's home or the assault.The appellant's situation is more akin to that of the assailants, who have apparently not been apprehended.

[8] The allegations made against counsel relate to advice that led to the guilty plea and not the sentencing.And the fact that the victim may have been involved in the theft of the appellant's car cannot operate as a mitigating factor.It is understandable that he wished to make his own inquiries but to the extent that the attack on Mr Day amounted to vigilante justice, it must be strongly condemned by this Court: see R v Reardon (CA 325/98, judgment 18 March 1999).

[9] Finally, the appellant's personal circumstances, both the improvements he has made to his life and the health of his father, are outweighed by the seriousness of his crime.

[10] We find that the sentence of 3 years and 9 months was within the appropriate range.The appeal is dismissed.

Solicitors

Crown Law Office, Wellington