Collier v The Queen - [2012] NZCA 208

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.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Introduction

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

[1] R v Gray DC Manukau CRI-2011-092-2900, 27 October 2011.

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.
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.
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

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.
The Judge took a starting point for both offences of 15…

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 Collier v The Queen

Details

AGLC: Collier v The Queen [2012] NZCA 208
Case: [2012] NZCA 208
Decision Date: 24 May 2012

CaseChat Overview and Summary

The appeal in Collier v The Queen was brought before the Court of Appeal of New Zealand, with Allison Marie Collier as the appellant and The Queen as the respondent. Collier appealed against her sentence of five months' home detention, which was imposed by Judge Andrée Wiltens in the District Court after she pleaded guilty to charges of common assault and assault with intent to injure. The appeal focused on the appropriateness of the home detention sentence in light of the appellant's involvement in a planned assault on two victims in a park in Otahuhu, which was motivated by suspicions of sexual assault against a family member.

The legal issue at the heart of this appeal was whether the District Court Judge erred in principle by imposing a sentence of home detention on the appellant, rather than a sentence of imprisonment or community work and supervision. The appellant's counsel argued that the sentence was manifestly excessive, and that the general issues of deterrence and denunciation did not warrant home detention as the least restrictive outcome. The respondent, represented by the Crown Law Office, maintained that the Judge was correct in imposing the home detention sentence, given the appellant's role in the offence and the principle of imposing the least restrictive outcome.

The Court of Appeal found that the Judge was correct in identifying premeditation and planning as aggravating factors, and in treating the appellant as a party to the assault with intent to injure. The Court noted that the appellant's involvement in the assault, although less severe than that of her co-offender, warranted a sentence of home detention. The Court also found that the Judge had appropriately considered the aggravating and mitigating factors in determining the starting point and length of the sentence. Consequently, the appeal was dismissed, and the application for an extension of time to appeal was granted.

Orders