Collings v The the King
[2022] NZCA 605
•5 December 2022 at 2 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA318/2022 [2022] NZCA 605 |
| BETWEEN | GARATH RICHARD COLLINGS |
| AND | THE KING |
| Hearing: | 21 September 2022 |
Court: | Gilbert, Brewer and Moore JJ |
Counsel: | D J Matthews and O K Jarvis for Appellant |
Judgment: | 5 December 2022 at 2 pm |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
REASONS OF THE COURT
(Given by Moore J)
Introduction
The appellant, Garath Collings, was found guilty of one charge of murder following trial by jury in the High Court at Christchurch.[1] On 1 June 2022, he was sentenced by Mander J to life imprisonment with a minimum period of imprisonment (MPI) of 11 years.[2]
[1]Crimes Act 1961, s 167.
[2]R v Collings [2022] NZHC 1275 [Sentencing notes].
Mr Collings now appeals his sentence.[3] He says that a finite sentence, rather than life imprisonment, should have been imposed. Alternatively, if life imprisonment was appropriate, the MPI should not have exceeded 10 years.
The offending
[3]Criminal Procedure Act 2011, s 244(1).
On 13 July 2020, Mr Collings, together with a male associate, drove his car to the end of a cul-de-sac in suburban Christchurch. The purpose of the trip was to pick up a friend, Ms Fielding, from her address. Also present at the address was the deceased, Mr Friend.
The Judge described the relevant facts in this way:
The facts
[3] On the morning of 13 July 2020, you drove your vehicle to the end of a cul-de-sac in Parklands, here in Christchurch. You, together with a male associate, Mr de Lambert, were there to pick up a female friend, Ms Fielding, from her address.
[4] After Ms Fielding got into the back of your car, Mr Friend approached from the address and spoke with her through the window. He then walked around the front of the vehicle to the driver’s side and commenced speaking with you through the driver’s window.
[5] There was evidence the two of you did not get on and there existed a mutual animosity. That was why arrangements had been made earlier that morning designed, at least initially, to avoid the two of you coming into contact and was illustrated by Ms Fielding’s efforts to get others to pick her up from the address.
[6] As it was described by Mr de Lambert, you and Mr Friend began bickering. Voices were not raised and the exchange was relatively short. There is some evidence that Mr Friend may have made a threatening comment relating to your family. As I said, the exchange of words was relatively brief and, from the point of view of the other two people in the car, not particularly noteworthy, although you were observed as having become “a wee bit flustered” and annoyed.
[7] As Mr Friend walked in front of your car to return to the kerb, you suddenly accelerated and drove at him. The deliberateness of this action was marked by the way you turned the vehicle’s wheels towards him with the obvious intent of striking him. You continued to accelerate the vehicle until it finally crashed. At no stage did you pause. You ignored the reactions of the other occupants of the vehicle and made no attempt to brake. Mr Friend was effectively taken from a point on the road onto the footpath and across the length of the street frontage of the nearby address. His attempts to remain upright and retreat were in vain. As was apparent from the video footage which captured the whole incident, because of the vehicle’s increasing speed, Mr Friend had no chance of extracting himself from the front of the car and was inevitably dragged underneath.
[8] You must have been aware of Mr Friend’s predicament but you carried on regardless. Rather than stop or slow down, to the contrary, you kept on accelerating. This was clearly a conscious act on your behalf. Your obvious objective was to run him over and, as the jury must have at the very least concluded, you did so appreciating the danger to Mr Friend’s life in the way you used the vehicle against him. You only came to a stop once the car could effectively go no further after crashing into a small tree.
[9] After the front of the vehicle was lifted up into the air as a result of the collision, you reversed back before driving around Mr Friend as he lay prone on the ground, and drove away without stopping or checking on his condition. He died at the scene while being treated by attending ambulance staff.
[10] You drove with your passengers for a number of kilometres. However, your car was damaged and you were forced to stop in the parking area of a local park. After obtaining the assistance of a lawyer, you presented yourself to police later that day.
High Court sentencing
In considering whether to impose life imprisonment or a finite sentence, the Judge accepted that Mr Friend’s alleged threat to Mr Collings’ family may have “played [a] part” in causing him to react as he did. The Judge also accepted that Mr Collings was in a depressive state as a result of the recent death of his daughter and that this, combined with the emotional after-effects of methamphetamine taken the night before and his diagnosis of post-traumatic stress disorder (PTSD) constituted a form of provocation, thus leading to his extreme reaction.[4]
[4]Sentencing notes of evidence, above n 2, at [19]–[20].
The Judge did not, however, consider these circumstances mitigated Mr Collings’ actions to such a degree as to displace the presumption in favour of life imprisonment.[5] It followed that the Judge was satisfied the imposition of a sentence of life imprisonment would not be manifestly unjust.[6]
[5]At [20].
[6]At [22].
The Judge then turned his mind to the MPI. He identified the key issue as whether an additional period beyond the statutory minimum of 10 years was required to satisfy the purposes and principles of sentencing.[7]
[7]At [23]; and Sentencing Act 2002, s 103(2).
He noted that while brutality, cruelty, and callousness are present to a certain degree in all murders, Mr Friend’s death, caused in particularly senseless and sudden circumstances, compounded the suffering of his family.[8] The Judge went on to identify the following as aggravating features of Mr Collings’ offending:
(a)the use of a motor vehicle as a lethal weapon;[9]
(b)the vulnerability of the victim, positioned as he was in front of the car, defenceless;[10]
(c)the clear and continued intention to cause significant harm;[11] and
(d)the flight from the scene without any regard for the victim.[12]
[8]At [24].
[9]At [25].
[10]At [26].
[11]At [27].
[12]At [28].
As for mitigating features, the Judge accepted, as already noted, that Mr Collings was in a depressive state and that there may have been an element of provocation.[13]
[13]At [29]–[30].
In setting the starting point for the MPI, the Judge reviewed a number of sentencing decisions for murder involving the use of a motor vehicle, noting that no two cases are exactly alike.[14] In circumstances broadly comparable to the present, but involving additional aggravating features, non-parole periods of 13 years were imposed.[15]
[14]At [31].
[15]At [32], citing Rv Kinghorn [2014] NZCA 168; and Pukeroa v R [2013] NZCA 305.
Taking the above into account, and making the necessary allowances for the reactionary nature and context of Mr Collings’ offending, the Judge set a starting point for the MPI of 11 years. But for that aspect of the offending, he said the non‑parole period would have been significantly higher.[16]
[16]At [35].
The Judge did not consider there to be any additional factors personal to Mr Collings impacting on the length of the MPI, nor did he consider any uplift was warranted to reflect the appellant’s prior convictions.[17] To the extent Mr Collings’ background was relevant to the offending, the Judge stated he had already factored this into his assessment of culpability.[18]
Approach on appeal
[17]At [36]–[37].
[18]At [38].
This Court must allow the appeal if it is satisfied that for any reason there was an error in the sentence imposed on conviction and a different sentence should be imposed.[19] The focus is on the sentence imposed, rather than the process by which it is reached.[20] The Court will not interfere where the sentence is within the range that can properly be justified by accepted sentencing principles.[21] To this end, the concept of a “manifestly excessive” sentence is well-engrained and there is no reason not to apply it.[22]
Issues on appeal
[19]Criminal Procedure Act 2011, s 250(2).
[20]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
[21]At [36].
[22]At [35].
Mr Collings raises the following issues on his appeal:
(a)whether the Judge erred by imposing a sentence of life imprisonment, rather than a finite sentence; and
(b)if a sentence of life imprisonment was appropriate, whether the minimum period of imprisonment imposed by the Judge was manifestly excessive.
Did the Judge err by imposing a sentence of life imprisonment?
Mr Matthews, for Mr Collings, submitted that a sentence of life imprisonment was manifestly unjust, and that a finite sentence should have been imposed.
Section 102(1) of the Sentencing Act 2002 provides that an offender who is convicted of murder must be sentenced to life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.
Mr Matthews acknowledged that the presumption has only been displaced in a very small number of cases over the 20-year period the provision has been in force. These have involved “mercy killings”,[23] battered defendants who have suffered severe and prolonged abuse,[24] defendants who did not commit the principal offending,[25] defendants suffering from a major psychotic illness,[26] and defendants who were extremely young.[27] However, Mr Matthews submitted that there is no fetter on the court’s assessment of whether life imprisonment would be manifestly unjust and that each case must be considered on its own merits.
[23]R v Law (2002) 19 CRNZ 500 (HC); and R v Knox [2016] NZHC 3136.
[24]R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775; and R v Rihia [2012] NZHC 2720.
[25]R v Cunnard [2014] NZCA 138; and R v Madams [2017] NZHC 81.
[26]R v Reid HC Auckland CRI-2008-090-2203, 4 February 2011.
[27]R v Reid HC Auckland CRI 2008-090-2203, 4 February 2011; and R v Nelson [2012] NZHC 3570.
The offending in the present case, according to Mr Matthews, is best described as impulsive and spontaneous, carried out in direct response to the victim’s threat. Mr Matthews further submitted that the victim’s remark had a particular impact on Mr Collings due to circumstances in his personal life. These are outlined in the report of Dr James Fould, in which the psychiatrist expresses a view that Mr Collings’ threat processing mechanisms were “deranged” at the time of the offending due to the combined effects of grief, PTSD and methamphetamine abuse. Mr Matthews submitted that these matters were understated by the Judge.
Ms Hoskin, for the Crown, submitted that the Judge did not err in imposing a sentence of life imprisonment. Ms Hoskin referred to the comments of this Court in R v Rapira to the effect that the presumption is likely to be displaced in “exceptional cases only” and submitted that the decisions referred to by the appellant serve only to illustrate this.[28]
[28]R v Rapira [2003] 3 NZLR 794 (CA) at [121].
Ms Hoskin also argued that the brevity of the offending does not distinguish it in any meaningful way from other circumstances where an offender makes an instantaneous decision to deploy a weapon with lethal force. Additionally, Ms Hoskin submitted that the absence of premeditation is not a mitigating factor, and that the appellant’s submissions regarding provocation risk overstating the victim’s conduct.
Ms Hoskin submitted that the mental health issues from which Mr Collings is said to suffer may help to contextualise his actions, but fall distinctly short of reducing his culpability to a level where life imprisonment would be manifestly unjust.
In our view, Mr Collings’ personal circumstances, while plainly unfortunate, are not on par with the cases to which we have been referred where the presumption in favour of life imprisonment has been displaced. We do not doubt that Mr Collings’ overreaction was influenced by recent events in his life, exacerbated by his abuse of methamphetamine. These circumstances were evidently taken into account by the Judge when determining whether or not to impose a sentence of life imprisonment,[29] and again, in more detail, when considering the appropriate MPI.[30] There is, however, no suggestion in the material before this Court that Mr Collings was labouring under the effects of mental ill-health to such a degree that he had no control over, or appreciation of, his actions. Nor did the offending involve the kind of “justified loss of self-control” that may arise and which has been recognised as reducing culpability in cases involving battered defendants, for example.[31]
[29]Sentencing notes, above n 2, at [19]–[20].
[30]At [29]–[30] and [33].
[31]Hamidzadeh v R [2012] NZCA 550, [2013] NZLR 369 at [60]; R v Wihongi, above n 24; and R v Rihia, above n 24.
We accept that any premeditation was limited and that the offending was largely reactionary. On the other hand, the CCTV footage makes it clear that Mr Collings had ample opportunity to slow down or stop after he struck Mr Friend. Instead, he continued to accelerate forwards until the car could go no further. As the Judge observed, Mr Collings must have been aware of Mr Friend’s predicament but carried on regardless. He then drove away without checking on Mr Friend’s condition or rendering assistance, callously leaving the victim to his fate.
Finally, as Mr Matthews responsibly acknowledged, the remark made by Mr Friend cannot, in and of itself, reduce Mr Collings’ culpability to the point where life imprisonment would be manifestly unjust. This is especially so in the absence of any conclusive evidence as to the actual words used by Mr Friend, and due to the effect of the evidence of those who were in the car at the time; namely that whatever was said was brief and not particularly noteworthy.
As did the Judge, we do not consider that the circumstances mitigate Mr Collings’ actions such as to render a sentence of life imprisonment manifestly unjust.
It follows that this aspect of the appeal must fail.
Did the Judge err by imposing an MPI of 11 years?
We now turn to consider whether the Judge imposed an MPI which was manifestly excessive.
Mr Matthews submitted that the MPI should not have exceeded the statutory minimum of 10 years in light of the mitigating factors discussed above, particularly those relating to provocation and the personal circumstances of the appellant.
He submitted that the two principal authorities considered by the Judge, in which non-parole periods of 13 years were imposed from a starting point of 15 years, involved significantly greater levels of premeditation.[32] Furthermore, the MPI ordered in Pukeroa v R was calculated by reference to charges which were additional to the murder.
[32]Pukeroa v R, above n 15; and R v Kinghorn, above n 15.
Ms Hoskin submitted that an MPI of 11 years is broadly consistent with comparable cases and adequately reflects the factors engaged in the present case. She pointed out that the Judge expressly acknowledged that both Pukeroa v R and R v Kinghorn involved additional aggravating features and took this into account when setting a lower MPI.[33]
[33]Sentencing notes, above n 2, at [32] and [35].
She also submitted that the Judge gave due consideration to Mr Collings’ personal circumstances, factoring these into the starting point rather than providing a discount at a later stage. This approach, in Ms Hoskin’s submission, withstands scrutiny and represents an appropriate response to the material before the Court.
Given our discussion on the first ground of appeal, and having reviewed the case law in this area, we can deal with this second ground relatively briefly. An MPI of 11 years was well within the available range for murder involving the use of a motor vehicle and may in fact be regarded as generous. On that point we note that in R v Shadrock an MPI of 12 years was imposed in circumstances where the evidence did not establish that the defendant deliberately drove into the victim.[34]
[34]R v Shadrock HC Auckland CRI-2009-092-3881, 2 July 2010 at [63] and [73], the sentence was imposed, following a retrial, in R v Shadrock [2012] NZHC 1775.
As Ms Hoskin submitted, in setting a starting point of 11 years, the Judge factored in the reactionary nature of the offending and Mr Collings’ mental state at the time.[35] The Judge was entitled to deal with Mr Collings’ mitigating factors in that way, particularly as no uplift was applied to reflect his prior convictions nor the fact that he was subject to a sentence of supervision at the time of the offending. The Judge also noted that Mr Collings, although apologetic, appeared largely focused on his own predicament, rationalising his culpable actions to himself and others.[36]
[35]Sentencing notes, above n 2, at [33] and [35].
[36]At [38].
It follows that an MPI of 11 years cannot be said to be manifestly excessive, and the Judge did not err in imposing a non-parole period to this effect.
Result
The appeal against sentence is dismissed.
Solicitor:
Crown Law Office, Wellington for Respondent
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