Allan v Police - [2021] NZHC 379

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATIONS) OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2021-442-1

[2021] NZHC 379

BETWEEN
CODY RICHARD ALLAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 March 2021 (AVL)

Counsel:

M J Vesty for Appellant

J M Webber for Respondent

Judgment:

4 March 2021

JUDGMENT OF ELLIS J

[1]Following a sentence indication, Mr Allan pleaded guilty to charges of:

(a)impeding breathing (x 3);1

(b)indecent assault (x 2);2

(c)threatening to kill;3 and

(d)breach of community detention.4

1      Crimes Act 1961, s 189A(a) [maximum penalty of seven years’ imprisonment].
2      Section 135 [maximum penalty of seven years’ imprisonment].
3      Section 306 [maximum penalty of seven years’ imprisonment].
4      Sentencing Act 2002, s 69(G)(a) [maximum penalty of six months’ imprisonment or a $1,500 fine].

ALLAN v NEW ZEALAND POLICE [2021] NZHC 379 [4 March 2021]

[2] On 22 December 2020 he was sentenced by Judge Rielly to three years and one month’s imprisonment.5 He now appeals that sentence.

Facts

[3] In April 2020, New Zealand was in a state of COVID-19 lockdown. Mr Allan was serving a sentence of community detention. He had been in a relationship with the complainant (B) for around two or three months. He cut off his ankle bracelet so that he could live with B at her family’s address during the lockdown.

[4] On 11 April, Mr Allan and B took a walk to clear the air—there had been tension between them about a previous partner. As they entered an alleyway, Mr Allan took hold of B and put his arm across her neck and restricted her breathing, causing her to panic.

[5] Later, around midnight, the two went to the sleepout. They had another argument. B feared for her safety and so tried to leave. Mr Allan blocked her, forced her onto the bed, and straddled her. He then took a duvet and pillow and smothered her face, causing her to temporarily lose consciousness. He put the duvet and pillow over her face numerous times, while telling B in chilling detail how he would kill her. B was terrified and thought she would die.

[6] During the attack, Mr Allan indecently assaulted B by putting his hand on her vagina over her clothing and touching her naked breasts. He told B that he could do whatever he liked, which B understood to mean he could rape her.

[7] Mr Allan eventually went to the door of the sleepout, ordering B to remain silent. Fearing for her life, B tried to escape by throwing a heavy ornament at Mr Allan. He then grabbed B’s neck, taking her to the floor. B screamed for help, but Mr Allan put his arm across her neck, again restricting her breathing, and this time causing her to lose control of her bowels. Mr Allan wrapped his legs around B’s waist, telling her that he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allan v Police

Details

AGLC: Allan v Police [2021] NZHC 379
Case: [2021] NZHC 379
Decision Date: 4 March 2021

CaseChat Overview and Summary

Cody Allan appealed his sentence, which was imposed by the District Court after he pleaded guilty to multiple offences against a woman, including impeding breathing, indecent assault, and threatening to kill. The offending occurred over a period of hours, during which Allan strangled the woman three times, resulting in her temporary loss of consciousness and bowel control, threatened to kill her, and indecently assaulted her. The District Court imposed a sentence of three years and one month's imprisonment, which the Court of Appeal was asked to review. The appeal hinged on whether the starting point for sentencing was too high, given the aggravating factors present in the case. The Court found that the District Court's starting point was appropriate, and that the sentence imposed was not manifestly excessive. The appeal was dismissed.

Orders