Police v Collins DC Dunedin CRI-2010-012-5039 [2011] NZDC 603 (15 April 2011)

Last Updated: 28 September 2016

IN THE DISTRICT COURT AT DUNEDIN

_{CRI-2010-012-005039}

NEW ZEALAND POLICE DEPARTMENT OF CORRECTIONS Informants

v

JAMAHL UITI COLLINS

Defendant

Hearing: 15 April 2011

Appearances: Sergeant G Evans for the Informant NZ Police

L Dougherty for the Informant Corrections

J D Large for the Defendant

Judgment: 15 April 2011

_{NOTES OF JUDGE S J O’DRISCOLL ON SENTENCING}

[1] Mr Collins, you appear before me today for sentence on four charges. There is a charge of breaching community work and a charge of intentional damage. They are summary offences matters. There are two other matters which were laid indictably. They are charges of injuring with intent to injure and assault with a weapon.

[2] I want to begin by going over some matters I think are important in the summary of facts on the indictably laid charges because it indicates the nature and

_{extent of your offending which I must take into account.}

POLICE V COLLINS DC DUN CRI-2010-012-005039 15 April 2011

[3] Sometime after midnight on Sunday 3 October last year, you returned to your home address in Ranfurly Street, Dunedin. You shared that address with your partner who is the victim in this matter. You had been drinking alcohol and were intoxicated. The victim was sitting in the computer room when you approached her. You became angry and asked where she had been the night before. That resulted in a verbal argument. You then struck the victim in the head several times with a closed fist, causing her to fall to the ground. Once she was on the ground, you continued your attack, kicking her about the head and body. You then grabbed her by the hair and dragged her down the hallway into a corner of the bedroom. She was unable to flee from the bedroom and remained lying on the floor. As a result of being assaulted, her nose started to bleed and blood was sprayed onto the wall and a wardrobe in the bedroom. You held her head and demanded that she lick the blood from the wall and the wardrobe. The victim, fearing a further assault, complied with your demands and licked the blood from the wall and wardrobe. You then began kicking her legs and stamping on her feet as she lay on the floor. You also punched her repeatedly on the arms, causing significant pain. You dragged her from the bedroom into the bathroom, telling her you were going to cut her hair. You picked up a pair of kitchen scissors and used them to cut an amount of hair from her head. You then grabbed one of the victim’s fingers and placed it between the blades of the scissors you were holding and threatened to cut off her finger. You then demanded that she remove her clothes and have a shower, which she did. You did not allow her to have any hot water and made her use freezing cold water while you watched and laughed at her. You then removed her from the shower and made her go into the lounge. You would not allow her to dress. You made her lie on the floor at your feet while she was naked. You began smashing your heel into the victim’s bare feet repeatedly until she had no feeling left in her feet. You were wearing jandals at the time. You also jumped on and kicked the victim’s legs repeatedly as she lay naked on the ground. During the assault, the victim was in great pain and she was screaming. As she started to scream, you stuffed a towel into her mouth in an attempt to stop her screaming. At approximately 3.45 am, the assault ceased when the victim, out of fear, allowed you to have sex with her.

[4] As a result of the assault, the victim was terrified and in fear of her life, particularly when you produced the scissors. The summary of facts indicates that the

following morning the victim needed medical treatment for the injuries she sustained. She suffered severe bruising to her arms, shoulders, thighs, feet and legs and bumps and abrasions on her head and face. When spoken to, you declined to comment about the matter.

[5] I find the aggravating factors of the offending are first, the use of gratuitous violence; second, the numerous blows to the victim’s body; third, the hitting to the head of the victim; fourth, the threatened use of the scissors; and fifth, the harm done to the victim.

[6] In terms of the Sentencing Act, I take into account s 9(1)(a) which is the actual and threatened violence used by you and the actual and threatened use of the scissors. I take into account s 9(1)(d) Sentencing Act which is the harm caused to the victim. I also believe in this case that it is appropriate to use s 9(1)(e) Sentencing Act which relates to particular cruelty that you exhibited towards the victim.

[7] My assessment of your offending is that your actions were callous. They were designed to dominate and humiliate the victim. They were designed to cause her pain and suffering, both physical and psychological. Mr Collins, there is a sinister connotation to your actions which continued over a period of time.

[8] In addition to the aggravating factors relating to the offence, there are also aggravating factors relating to you. You were subject to community work at the time that this offending took place, with the community work having been imposed in October 2009. Secondly, there are your previous convictions. You have previous convictions for violence in 2007, 2008, and 2009.

[9] In terms of mitigating factors relating to the offence, there are none. In terms of mitigating factors relating to you, there is your plea of guilty. You were first before the Court on 6 October. A guilty plea was entered to the indictably laid charges on 25 November, a relatively short time after you first appeared in Court.

[10] I have been provided with a letter this afternoon which you have written. You have indicated that you would not endeavour to add insult to injury by way of

justification when you clearly know that you should never have resorted to violence. You have asked if there is any chance of a sentence short of imprisonment being imposed as you are now 100 percent motivated to change and to prevent this from occurring again.

[11] I have mentioned previously and I mention again, Mr Collins, that letters placed before a sentencing Judge on the day of sentencing carry little weight and that is because you are currently in the dock facing a sentence of imprisonment. What is important, Mr Collins, is not what you say but what you do. Hopefully your actions will never be repeated.

[12] It is clear that alcohol and anger were to the forefront of your offending. You have indicated remorse in your letter, Mr Collins, but in my view that effectively comes on the day of sentencing and is really part and parcel of your plea of guilty. Mr Large on your behalf has asked that I consider dealing with you by way of a sentence of home detention rather than imprisonment. It is submitted that home detention could be seen as being the least restrictive sentence and in particular it is submitted that home detention would allow you to spend time with your father, who I am told is on dialysis at the moment.

[13] There is a pre-sentence report before the Court which sets out your background and personal circumstances. You are aged 21. The writer of the pre-sentence report indicates that you have blamed the victim in part for this offending but you have acknowledged having a problem with anger management. In my view, there is clearly only one person responsible for this offending, Mr Collins, and that is you.

[14] You now have four convictions for violence within a period of three years. You are assessed as being at high risk of committing further offences involving violence. You have a number of convictions for breaching community-based sentences. The recommendation in the pre-sentence report is one of imprisonment.

[15] I hold that the purposes of sentencing must be those of deterrence, to hold you accountable, and to denounce your conduct. In terms of the principles of

sentencing, I am required to impose the least restrictive sentence on you. I am required to take into account the seriousness of the offence, the gravity of the offending, and your culpability. There is also a requirement of consistency between your case and other cases.

[16] I have been provided with the guideline Court of Appeal decision of R v Harris. R v Harris sets out three bands of offending. The Crown submits that your offending may be seen to be at the higher end of category 2 or the lower end of category 3. Looking at the level and nature of the violence, the injuries, the use of the weapon, and the threatened use of the weapon, I take the view that this is a case where the appropriate starting point is three years’ imprisonment.

[17] Your case, however, has additional features to it. The additional features which are not common in other cases are these: first of all, there was the requirement that the victim lick her blood off the wall; there was the act of making her have a cold shower; there was the matter of making the victim sit naked at your feet; there was the putting of the towel in her mouth; and there was the fact that this offending was of a prolonged nature. The view that I have taken is that the combination of those factors means that the starting point should be increased. I take into account also the provisions of s 8(d) Sentencing Act. That is a principle of sentencing which says that the Court must impose a penalty near the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed unless the circumstances relating to the offender make that inappropriate.

[18] It is always a jurisprudential issue as to whether or not offending is near the most serious of cases or is at the level of the most serious of cases. I take the view that your offending is clearly near the most serious of cases when looking at the prolonged nature of this assault. I therefore increase my starting point of three years’ imprisonment by one year to four years’ imprisonment. I then take the view that your previous convictions for violence also deserve an uplift. Your previous convictions for violence in 2007, 2008 and 2009 are such that I intend to increase the sentence from four years’ imprisonment to four and half years’ imprisonment, the maximum being five years’ imprisonment.

[19] In light of the Supreme Court decision of Hessell, and it is accepted by both your counsel and the Crown, the sentence should be reduced to take into account your plea of guilty. I intend to deduct 25 percent from the sentence of four and half years’ imprisonment. From 54 months’ imprisonment, I reduce that therefore by 13 and a half months’ imprisonment.

[20] On the charge of injuring with intent to injure, the sentence I impose on you will be one of 40 and a half months’ imprisonment. That is three years and four and a half months’ imprisonment. On the charge of assault with a weapon, you will be sentenced to two years’ imprisonment. On the charge of intentional damage, you will be sentenced to two months’ imprisonment. On the charge of breaching community work, you will be sentenced to two months’ imprisonment. I cancel the outstanding community work. The sentences of imprisonment that I have imposed on you, Mr Collins, are all concurrent.

S J O’Driscoll

District Court Judge