Collier v R [2012] NZCA 208 (24 May 2012)

Last Updated: 30 May 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA46/2012 [2012] NZCA 208

BETWEEN ALLISON MARIE COLLIER Appellant

AND THE QUEEN Respondent

Hearing: 17 May 2012

Court: White, Venning and Miller JJ

Counsel: M Dixon for Appellant B C L Charmley for Respondent

Judgment: 24 May 2012 at 10am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Venning J)

Introduction

[1] The appellant pleaded guilty to one charge of common assault and one charge of assault with intent to injure. Judge Andrée Wiltens sentenced her to five months’ home detention.[1] She appeals against the sentence of home detention.

Background

[2] The offending occurred in November 2010. The appellant and her co-offender, Mr Gray, were among a number of people who lured the victims of the offending to a park in Otahuhu. The appellant and Mr Gray suspected the victims of sexually assaulting a family member. The victims were sent text messages to lure them to the park. Shortly after the victims arrived at the park, Mr Gray and the appellant pulled up in two separate cars. The cars were parked in front of and behind the victims’ car to prevent them from leaving. Mr Gray then went to the victims’ car and punched the driver twice to the head through the driver’s window. He then pulled the driver to a standing position punching him six or seven times to the left side of his face.
[3] At the same time the appellant went to the passenger’s side of the victims’ car. She opened the door and punched the passenger a number of times about his head using both fists. The passenger was then pulled out of the seat by another associate of the appellant and Mr Gray. Mr Gray then made the victims get back into their car and drove them off. The appellant followed the victims in her own car. The victims were only able to escape when, after seeing a police patrol attending an unrelated incident, one of them was able to force the car to the side of the road and attract the attention of the police.
[4] As a result of the incident, the victim assaulted by Mr Gray sustained swelling and bruising to his left eye which required medical attention. The victim assaulted by the appellant received a cut lip but did not seek medical attention. The appellant and Mr Gray were each charged with assault with intent to injure and common assault.

The sentence in the District Court

[5] Judge Andrée Wiltens sentenced the appellant on the basis that Mr Gray was the principal and the appellant was a party to the charge of assault with intent to injure, and that the appellant was the principal and Mr Gray a party on the charge of common assault.
[6] The Judge took a starting point for both offences of 15 months’ imprisonment after taking account of the following aggravating features:[2]

• the number of persons involved in the assaults;
• premeditation and planning;
• actual violence;
• an attack on the victims’ heads; and
• in the appellant’s case, that the offending occurred in the presence of her young children.

[7] The Judge considered a discount of up to 25 per cent for the guilty plea was appropriate given that it followed shortly after the withdrawal of a charge of kidnapping.[3] The Judge also considered that, applying the principle of imposing the least restrictive outcome, home detention was the appropriate sentence.[4] He imposed a sentence of seven months’ home detention on Mr Gray to reflect his role in the assaults and to take account of his previous convictions for violence.[5]
[8] The Judge dismissed the appellant’s application for a discharge without conviction. He accepted she had slightly less involvement in the violence that was meted out but considered the most lenient sentence he could impose to reflect her offending and personal circumstances was five months.[6]

The appeal

[9] In his written submissions Mr Dixon submitted the sentence of home detention was manifestly excessive and the most appropriate sentence was community work and supervision. He identified the narrow issue on appeal was whether the general issues of deterrence and denunciation were of such weight that home detention was the least restrictive outcome in this case.
[10] Mr Dixon submitted that the Judge ought to have conducted an independent sentencing exercise for the appellant. He submitted the lead offence ought to have been for the common assault before an uplift was considered for the assault with intent to injure.
[11] Mr Dixon submitted that while there was some premeditation it was not at the level perceived by the Judge because the appellant was neither a driver nor was she one of the texters who lured the victims to the park.
[12] Mr Dixon also submitted the appellant’s involvement was much more limited than Mr Gray’s. He noted that others present at the incident had not been charged with any offence. He suggested that the photograph of the victim that the appellant had actually hit did not look like a photograph of someone who had been the victim of assault.
[13] Next, Mr Dixon submitted that there was no requirement for parity because of the greater violence inflicted by Mr Gray and his greater role in the planning.
[14] In the course of his oral submissions Mr Dixon properly accepted the appellant was bound by the summary of facts she had accepted for sentencing purposes. He did, however, suggest the appellant had been goaded by others to act as she did. He submitted the offending fell into band one identified by this Court in R v Harris[7] and the Judge could have imposed a sentence of community work and supervision.

Decision

[15] The Judge was correct to identify premeditation and planning as an aggravating factor. The incident was planned. The victims were lured to the park. It is irrelevant whether the appellant drove one of the two cars to the park or texted the victims to lure them there. She showed that she knew what was going to occur by her actions as soon as she arrived at the park.
[16] The Judge was also correct to treat the appellant as a party to the assault with intent to injure by Mr Gray. At the same time Mr Gray was attacking the driver of the car the appellant was attacking the passenger of the car. By acting in concert in that way each was a party to the other’s actions. The appellant has to accept the consequences of that. Mr Gray and the appellant were charged because they were the only parties who physically assaulted the victims.
[17] In R v Harris this Court suggested the following bands and starting points for assault with intent to injure:[8]

• Band one: where there is little injury and few aggravating features and where the sentencing judge considers the culpability to be at a level which might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate: Taueki at [27];
• Band two: where the injuries are moderate, sentences of up to two years’ imprisonment can be justified;
• Band three: for serious injury, sentences from 18 months up to the maximum of five years can be justified (subject to complying with s 8(c)(d) of the Sentencing Act 2002

[11] Beyond the extent of the injury, the appropriate starting sentence will depend upon the effect that any additional aggravating and mitigating features have on the seriousness of the conduct and the criminality involved.

[18] Although the focus in [10] of Harris was on the extent of the injury, [11] makes it clear that the appropriate starting point will also take into account any additional aggravating or mitigating features. In the circumstances of this case, and given the aggravating features identified by the Judge, it was open to the Judge to take a sentence of 15 months’ imprisonment as a starting point.
[19] While it may be arguable whether the presence of the children was an aggravating factor, the fact it was a vigilante action (which the Judge did not expressly refer to as an aggravating factor) was certainly aggravating.
[20] The Judge then correctly addressed whether imprisonment would be too severe and accepted that the least restrictive outcome in all the circumstances was a sentence of home detention. As noted by Ms Charmley in her written submissions for the Crown, the probation report indicated that supervision would not be an appropriate sentence. After imposing a sentence of seven months on Mr Gray, he considered the lesser involvement of the appellant in the more serious assault on the driver and imposed the lesser sentence of five months home detention on her. It was not so much a question of parity, but rather the imposition of a sentence reflecting her lesser role.
[21] The appellant has not been able to show that the Judge erred in principle in determining that a sentence of home detention was appropriate nor that the length of the sentence was manifestly excessive in all the circumstances of this case.
[22] The application for an extension of time to appeal is granted. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Gray DC Manukau CRI-2011-092-2900, 27 October 2011.
[2] At [12].
[3] At [14].
[4] At [19] and [28].
[5] At [17] and [19].
[6] At [22]–[29].
[7] R v Harris [2008] NZCA 528.
[8] R v Harris at [10]–[11].