Anderson v R - [2010] NZCA 339

IN THE COURT OF APPEAL OF NEW ZEALAND
CA15/2010
[2010] NZCA 339
BETWEENCASSANDRA MARY ANDERSON

Appellant

ANDTHE QUEEN

Respondent

Hearing:19 July 2010

Court:O'Regan P, Panckhurst and MacKenzie JJ
Counsel:R G R Eagles for Appellant

M F Laracy and B F Fenton for Respondent

Judgment:2 August 2010 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT
(Given by MacKenzie J)
Introduction
[1]        The appellant appeals against a sentence of four years and ten months imprisonment imposed by Fogarty J in the High Court at Invercargill following her guilty plea to a charge of manslaughter.
Factual background
[2]        This is truly a tragic case. The deceased, a widow with two grown children, lived at Myross Bush near Invercargill. On Saturday 13 September 2008, her teenage son, who lived at home with her, had gone to visit a friend in Invercargill, to celebrate the son’s 19^th birthday. He had arranged with his mother that when he was ready to come home he would call her and she would collect him. He telephoned her shortly after 3am on 14 September. The deceased drove in her Mitsubishi FTO car to collect him, by a route which involved her travelling westward on St Andrew Street.
[3]        On that evening, the appellant and her partner, who lived on a street not far from St Andrew Street, had visited and socialised with friends a short distance away. They returned home at about 3am. Soon after, an argument developed between the appellant and her partner in which the appellant was hit on the face, receiving a bleeding nose. She became angry and upset and smashed three windows in the house before leaving in her car and returning to the address where they had socialised. There, she was assisted in cleaning up her bloodied nose and it was suggested that she stay for the night. However, after about 10 minutes the appellant left and returned home in her car. On returning home she found her partner’s dog in the street, put it in the car, then left briefly before deciding to return the dog home. She spoke with two pedestrians and told them what had happened with her partner. She initially asked them to ring the Police but then told them not to worry and got back into her car. She was reversing out of the driveway when her partner appeared and spread-eagled himself on the bonnet of the car. She reversed at speed onto the street causing her partner to be thrown from the bonnet onto the road. She then drove into an adjoining street before returning to check that her partner was alright, but did not locate him. She then drove off.
[4]        At this point, the narratives of the actions of these two women tragically coincide. The appellant turned into St Andrew Street, immediately behind the victim’s car. The appellant was seen by the two pedestrians she had spoken to a short time earlier. They saw her ram the rear…

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 Anderson v R

Details

AGLC: Anderson v R [2010] NZCA 339
Case: [2010] NZCA 339
Decision Date: 2 August 2010

CaseChat Overview and Summary

The appeal in Anderson v R is brought by the appellant, Cassandra Mary Anderson, who was sentenced to four years and ten months imprisonment by Fogarty J in the High Court at Invercargill after she pleaded guilty to manslaughter. The central issue before the Court of Appeal of New Zealand was whether the starting point of seven years for the sentence was too high, considering the mitigating factors and the guilty plea. The Court found that the starting point was within the available range, considering the appellant's deliberate and conscious actions, including tailgating and ramming the victim's car twice. The Court also noted that the appellant's personal circumstances, including her difficult upbringing and psychological factors, were properly considered in the sentencing. The Court further found that the discount for mitigating factors, apart from the guilty plea, was within the range and that the final discount for the guilty plea was appropriate. Consequently, the appeal against the sentence was dismissed as the sentence was not manifestly excessive.

Orders