Annas v R - [2011] NZCA 49

IN THE COURT OF APPEAL OF NEW ZEALAND

CA675/2010
[2011] NZCA NO 49

BETWEEN WENDY JOANNE ANNAS
Appellant

AND THE QUEEN
Respondent

Hearing: 21 February 2011

Court: O'Regan P, Chisholm and Priestley JJ

Counsel: S Jefferson for Appellant
K A L Bicknell for Respondent

Judgment: 8 March 2011 at 12.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

_______________________________________________________________

REASONS OF THE COURT

(Given by Priestley J)

The appeal

In September 2010 Judge Adeane, sitting in the Napier District Court, imposed four cumulative terms of imprisonment on the appellant.
The first term was one of nine months imprisonment for threatening to kill (s 306(1)(a) of the Crimes Act 1961). The second term of eight months imprisonment was for unlawful assembly. A three month term in lieu of a community based sentence was imposed for assault. The final term, one month, was imposed in respect of unpaid fines totalling $12,750.
The total term of imprisonment the appellant is required to serve is thus 21 months. The appellant challenges the total sentence as being manifestly excessive.
No issue is taken with the two smaller terms imposed, nor was there any challenge to the appropriateness of cumulative sentences. The focus of the appeal is on the terms imposed for the threatening to kill and unlawful assembly convictions, and on overall totality.

Background

The unlawful assembly conviction arose out of a gang-related affray on a week day afternoon in a shopping centre car park. The appellant considered she had been insulted by two Mongrel Mob members. She drove home and collected her boarder, her son, a friend, and a selection of weapons which included a hammer, an axe, knives, bars, golf clubs, and pruners. The appellant, and apparently her associates, were affiliated with the Black Power gang. The appellant drove the posse to the shopping centre. She remained in her car whilst the others attacked Mongrel Mob members in the car park. The entire episode, including the appellant’s involvement, was captured on security camera footage.
The appellant, who denied any involvement when interviewed by the police, proceeded to trial in the District Court where she was jointly charged with two others. On the morning of the trial guilty pleas were entered. This disrupted considerably the District Court’s trial schedule. The Judge, when sentencing all three offenders, referred to their clear lack of remorse which he buttressed with the observation that all three had “gamed the system for your own amusement”. All three were sentenced to eight months imprisonment.
Whilst she was on bail for the unlawful assembly offence, the appellant re-offended. She telephoned and threatened to kill the service centre manager of the Taradale WINZ branch. Significantly, the appellant had already been trespassed from the branch premises.
The appellant’s threats were twofold. First she threatened to burn the building down with everyone in it. Secondly she threatened the manager saying she would kill her personally and that she had better be careful and watchful because, if the appellant ever saw her on the…

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 Annas v R

Details

AGLC: Annas v R [2011] NZCA 49
Case: [2011] NZCA 49
Decision Date: 8 March 2011

CaseChat Overview and Summary

Wendy Joanne Annas appealed against a sentence imposed by the Napier District Court, challenging the sentence's overall severity. The District Court imposed four cumulative terms of imprisonment, totalling 21 months, for various offences, including threatening to kill, unlawful assembly, assault, and unpaid fines. Annas argued that the terms imposed for threatening to kill and unlawful assembly were excessive, and the total sentence contravened principles of totality. The Court of Appeal considered the nature and circumstances of the offences, including Annas's role in the unlawful assembly and the seriousness of the threats to kill. The Court found that the sentences were within an acceptable range and did not exceed what was appropriate given the nature of the offences and the need for deterrence and denunciation. The Court of Appeal dismissed Annas's appeal, affirming the District Court's sentence. The Court held that the sentence, while stern, was not manifestly excessive and appropriately reflected the seriousness of the offences committed.

Orders