Collins-Roberts v The King

[2025] NZHC 2448

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2025-412-30

[2025] NZHC 2448

BETWEEN

DONALD NOEL COLLINS-ROBERTS

Appellant

AND

THE KING

Respondent

Hearing:	25 August 2025
Appearances:	N L Rayner for Appellant J C Collins for Respondent
Judgment:	27 August 2025
Reissued:	14 October 2025

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 27 August 2025 at 9.45 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

COLLINS-ROBERTS v R [2025] NZHC 2448 [27 August 2025]

Introduction

[1]    Following a sentence indication on 25 October 2024,1 Donald Collins-Roberts (aged 40) pleaded guilty to three charges of injuring with intent to injure;2 one charge of assault with intent to injure;3 and one charge of demanding with menaces.4 The injuring with intent to injure and assault with intent to injure charges were jointly charged against Mr Collins-Roberts and his four co-defendants.

[2]    Mr Collins-Roberts accepted the sentencing indication on 5 November 2024 and was sentenced by Judge Robinson to three years and five months’ imprisonment on 20 March 2025.5 Mr Collins-Roberts now appeals that sentence on the ground that insufficient deductions were made for his personal mitigating factors, particularly his remorse and his background.

Facts

[3]    At approximately 11.20 pm  on  2  March  2024,  the  victims  were  at  a  21st birthday party at a property in North Dunedin. Three vehicles stopped on the street and Mr Collins-Roberts’ and his four co-offenders (including Mr Rakete) each wearing Mongrel Mob patches, approached the victims. They entered through the gate onto the property in an intimidating and confronting way. The victims offered the group seafood to try and get them to leave.

[4]    Mr Collins-Roberts asked the victims for their socks and said, “If you’re not going to give us your socks we want your bitches”, giving rise to the charge of demanding with menaces.

[5]    After approximately five minutes, Mr Collins-Roberts and his co-offenders left the property, telling the victims they would be back tomorrow night for a fight. They got back into the vehicles they arrived in. One of the victims (victim one) then walked towards the vehicles. Mr Rakete then got out of the vehicle and punched victim one’s

1      R v Ataria DC Dunedin CRI-2024-012-000433, 25 October 2024 (sentencing indication).

2      Crimes Act 1961, ss 189(2) and 66—maximum penalty: five years’ imprisonment.

3      Crimes Act, ss 193 and 66—maximum penalty: three years’ imprisonment.

4      Crimes Act, s 239(2)—maximum penalty: seven years’ imprisonment.

5      Police v Roberts [2025] NZDC 7045.

head. Serious and unprovoked violence against the victims then ensued, it having been instigated by Mr Rakete. Mr Collins-Roberts forcefully kicked victim one about the head while that victim was lying on the ground. He then swiftly and vigorously stomped on victim one’s head.

[6]    Victim four, having just found his feet after being king hit by Mr Rakete, was confronted aggressively by Mr Collins-Roberts who pushed him and punched him about the head. Mr Collins-Roberts is described as then acting violently towards victims three and four as he forced them down the street. Further violence was inflicted by Mr Collins-Roberts’ co-offenders.

[7]    Mr Collins-Roberts and his co-offenders chased two of the victims down the road, as two of the victims held their hands up in surrender, pleading to the group to stop. Sirens were then heard, and Mr Collins-Roberts and his co-offenders fled in their vehicles from the scene.

[8]    The four victims each suffered a concussion, and victim one suffered headaches and bruising. Victim two’s tooth was chipped by the attack and victim four also suffered a sprained AC joint in their shoulder.

District Court decision

[9]    Judge  Robinson  followed  his  sentencing  indication   when   sentencing  Mr Collins-Roberts.6 The Judge adopted a starting point of 53 months’ imprisonment, uplifted it by five per cent on account of Mr Collins-Roberts’ prior convictions and afforded a credit of 17 and a half per cent for his guilty pleas.7 There is no challenge to the approach taken by the Judge in relation to the starting point.

[10]   The Judge noted that the sentencing exercise primarily concerned whether further deductions to Mr Collins-Roberts’ sentence were available over and above the

6      R v Ataria, above n 1. The focus of the sentencing indication was limited to establishing a starting point and the value of the guilty plea credit. The Judge reserved the issue of the extent of any further deductions for personal mitigating factors for the final sentencing date when a pre-sentencing report had been provided.

7 At [2].

credit afforded to him for his guilty plea. Relevant to the appeal, the Judge described defence counsel’s submission to be, in effect, that he:8

… should afford [Mr Collins-Roberts] a further 10 to 15 per cent credit on the basis of remorse evident in [his] letter of apology and matters arising from [his] background which have a causative connection to the offending.

[11]   Drawing   from   the   pre-sentence   report,    the    Judge    observed    that Mr Collins-Roberts had amassed a total of 56 criminal convictions beginning in 2003 that covered driving, violence, dishonesty, firearms and drug-related offending— describing this as “the full range”. The Judge noted that Mr Collins-Roberts’ overall risk of harm was assessed as medium but, taking into account his history and current matters, the risk of harm was considered to be high given his propensity for violence.

[12]   Relevant to the issue of Mr Collins-Roberts’ remorse on appeal, the Judge observed:

[9]Your account of the offending, however, does not reconcile with what I saw on the CCTV. You said that you saw an associate enter a random house full of students. You did not know what was going on, got out of the vehicle and remained outside. I accept that you did not enter the house yourself, but you were certainly on the property going right up to one or more occupants at various points.

[10]Then before the violence itself ensued, you had returned back to your vehicle. You said that once the punches started you did not have time to think, you became protective of your associates.

[11]I do not accept that. I watched the CCTV footage a number of times and what I saw was you get out of the car and move quickly into this situation where it was clearly evident that your colleagues were already on top of the victims and were dominating this violence.

[12]You say that you have no clear recollection of what was happening. You say that you would not hit a victim while the victim was on the ground, but you were clearly visible on the footage kicking and stomping on a victim who had already been punched to the ground.

[13]     The  Judge  remarked  that  the  Mongrel   Mob   was   the   only   support  Mr Collins-Roberts had at the time of the offending and that he was going through “some difficult family circumstances”. The Judge identified that Mr Collins-Roberts wished to maintain his loyalty to the gang, describing this as a problem in his

8 At [4].

background and future outlook that meant he would be stuck in “a revolving door of criminal offending” that would lead to “further violent altercations, further offending of other types” and inevitably imprisonment to ensure the protection of the community.9

[14]     The Judge acknowledged that Mr Collins-Roberts’ involvement in a boot camp style program in the distant past, where he was subjected to a number of forms of abuse, impacted on his trajectory and causatively contributed to his offending.

[15]Regarding Mr Collins-Roberts’ letter of remorse the Judge said:10

I give it some weight. I am always conscious that people with your background know the system and know what to say in these circumstances, but I am prepared to give some limited credit for that.

[16]     The Judge considered there were circumstances in Mr Collins-Roberts’ background that warranted recognition and this was not a case where his history of violence precluded such a discount because of the conflicting need to protect the community.  The  Judge   allowed   a   discount   of   10 per cent   to   account   for Mr Collins-Roberts’ “expressed remorse and the details of his background”, commenting that this discount was at the lower end of the range advocated for by his counsel.11

[17]     The Judge sentenced Mr Collins-Roberts to three years and five months’ imprisonment on the lead charge of injuring with intent to injure, 18 months’ imprisonment on the charge of assault with intent to injure and 12 months’ imprisonment for demanding with menaces, each term being to run concurrently.12

Principles on appeal

[18]     Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error

9 At [14].

10 At [16].

11 At [19].

12 At [20].

in the imposition of the sentence and that a different sentence should be imposed.13 As the Court of Appeal stated in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.14 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.15

Submissions

Appellant’s submissions

[19]     On appeal, Mr Rayner for Mr Collins-Roberts submits that the District Court Judge “could, if not should, have dealt with personal mitigating factors and remorse separately” and that “a discount in the order of 20 to 25 per cent should have been given for these combined factors”. Mr Rayner acknowledges that this submission departs from his written submissions in the District Court where he submitted “the combined personal and cultural factors detailed herein require recognition by a further discount on sentence in the order of 10 to 15 [per cent].”

[20]     Mr Rayner submits that in all the circumstances, the remorse expressed by  Mr Collins-Roberts can be regarded as  “extraordinary”,  such  that  a  discount  of 10 per cent for this factor alone is appropriate. He submits that this is a situation where there are limited opportunities for a defendant to express remorse. However, he highlights that Mr Collins-Roberts wanted to participate in restorative justice with the victims (although no conference could be convened) and expressed remorse and demonstrated empathy towards how the victims would have felt to the pre-sentence report writer. Mr Rayner also relies on Mr Collins-Roberts’ apology letter as a further marker of his remorse and notes the Judge said he would give the letter “some weight” but did not clarify how much weight.

[21]     Mr Rayner is critical of the Judge’s comment that he was conscious that people with Mr Collins-Roberts’ background “know what to say in these circumstances”. He

13     Criminal Procedure Act 2011, ss 250(2) and 250(3).

14     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

15     Ripia v R [2011] NZCA 101 at [15].

submits that the Court’s position appears to be one of implicitly acknowledging the apology letter is in fact of some quality, while doubting its authenticity because of the category of person the Judge considered Mr Collins-Roberts to be. In Mr Rayner’s submission, this assessment “overshadowed the Court’s mind” when considering the appropriate discounts for both remorse and personal factors. Mr Rayner adds that if Mr Collins-Roberts is to be confronted with such scepticism as to the genuineness and quality of his apology based on his past record “he may not make it”, which he explained to mean will hinder Mr Collins-Roberts’ rehabilitation.

[22]     Mr Rayner submits that Mr Collins-Roberts’ various personal and cultural factors justify a stand-alone credit in the region of 10 to 15 per cent. Mr Rayner highlights Mr Collins-Roberts’ history of abuse at the state care facility he attended in Great Barrier Island and that there is a self-evident nexus between the consequences of him being abused and his offending. Mr Rayner draws a factual analogy to the Court of Appeal decisions of Kreegher v R, where the Court of Appeal found that a distinct discount of 10 per cent to reflect the appellant’s difficult upbringing and ongoing social deprivation was called for,16 and Minogue v R where the Court, on appeal, gave an additional 10 per cent discount to account for what is said to be similar background factors to Mr Collins-Roberts.17

[23]     Lastly,  Mr   Rayner   submits   that   while   the   Court   recognised   that   Mr Collins-Roberts took initiative in seeking a referral to Moana House, a long-term residential facility offering a variety of rehabilitative programmes, this factor does not appear to be explicitly factored into the 10 per cent deduction afforded by the Court. Mr Rayner does not ask for credit specifically for Mr Collins-Roberts’ rehabilitative prospects, but I take the submission to be arguing for more credit generally for personal mitigating factors.

Respondent’s submissions

[24]     Mr Collins, for the respondent, notes that the appellant’s submission that the Judge should have approached remorse and personal mitigating factors separately, is

16     Kreegher v R [2021] NZCA 22 at [47].

17     Minogue v R [2020] NZCA 515.

inconsistent with counsel’s submissions of 14 March 2025, which considered all of these matters together,  and  sought  a  sentencing  credit  within  the  range  of  10-15 per cent. It is Mr Collins’ submission that it is unclear how Mr Collins-Roberts can assert error on the part of the sentencing Judge in such circumstances, as any error by the sentencing court would have been one which was induced by Mr Rayner’s own submissions.

[25]     In any event, Mr Collins  opposes  any  further  discounts  on  the  basis  of Mr Collins-Roberts’ remorse. He highlights that the contradictory narrative as to the events which comprised the offending undercut the court’s ability to consider any expressions of remorse as genuine, and therefore deserving of additional credit.18    Mr Collins submits that it would have been open for the sentencing court to decline to award any credit for remorse alone, despite the apology letter and a stated willingness to participate in restorative justice, highlighting that the guilty pleas were only entered after the sentencing indication.

[26]     Mr Collins submits Mr Collins-Roberts’ indication to Corrections that he intends to remain associated with, and loyal to, the Mongrel Mob would appear to have contributed to this offending in a more direct way than his background. Thus, while the sentencing Judge acknowledged these past events in awarding credit, the Judge was not in error to give them only limited weight when considering all the circumstances.

[27]     Mr Collins also opposes any further discount for Mr Collins-Roberts’ willingness to participate in rehabilitation, citing Johnson v Police, in support.19 There, Woolford J considered completing a course while in custody was a “good start”, but more was required to warrant a discrete credit from this.20

Analysis

[28]     In sentencing Mr Collins-Roberts, the Judge adopted the methodology proposed by Mr Collins-Roberts’ counsel and the 10 per cent deduction awarded was

18     Kohu v R [2023] NZCA 343 at [44] and [49].

19     Johnson v Police [2023] NZHC 3302.

20 At [20].

within the range of credit that was advocated by Mr Rayner, albeit at the lower end. That said, the broad wording of s 250(2)(a) of the Criminal Procedure Act does not rule out that an “error” may still have occurred in the District Court sentencing. This Court must allow an appeal if satisfied that “for any reason, there is an error in the sentence imposed on conviction” (emphasis added).21 Mr Collins-Roberts is not prevented from pursuing his appeal despite the fact his position on appeal as to the credit sought for his personal mitigating factors does not match the position advanced by his counsel at sentencing in the District Court.22

Remorse

[29]     Whether genuine remorse is demonstrated is necessarily evaluative and is a question of fact and judgment.23 A discrete discount for remorse will be appropriate where a “proper and robust evaluation of all the circumstances” demonstrates that an offender is remorseful.24 Remorse need not be extraordinary, although it must be genuine and the onus is on the defendant to show it is so.25 Where established, remorse tends to attract a discrete discount of between five and 15 per cent.26

[30]     There was clearly some disparity between Mr Collins-Roberts’ version of what had occurred as recounted to the pre-sentence report writer and the court’s description of the offending obtained from reviewing the video evidence of the offending as set out at [12] and [25] above.27 Mr Collins-Roberts’ attempts to minimise his offending is a factor pointing against the genuineness of his remorse.

[31]     I accept that Mr Collins-Roberts’ apology letter demonstrates a degree of remorse. He apologises to the victims for having “spoilt” their student get-together, causing injury and putting the victims through unnecessary grief. However, I do not

21     Section 250(2)(a).

22     It seems Mr Rayner sought up to 20 per cent discount for personal mitigating factors at the sentencing indication but 10 to 15 per cent at sentencing.

23     Sweeney v R [2023] NZCA 417 at [18].

24     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64]; and Sentencing Act, s 9(2)(f).

25     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24].

26     Poi v R [2015] NZCA 300; Rowles v R [2016] NZCA 208; A v R [2018] NZHC 543; and C v R

[2022] NZHC 1807.

27   Also of concern is that as detailed in the pre-sentence report, Mr Collins-Roberts was also unable to advise why he asked for the victims’ socks (although he did acknowledge such behaviour was intimidating).

consider the letter shows the depth of remorse claimed by Mr Rayner. In particular, Mr Collins-Roberts says he has “no hard feelings” towards the victims and that he “hold[s] no grudges”. These are surprising statements when this was an attack against people he did not know and who did nothing to provoke the attack. It suggests he is being magnanimous in not holding a grudge when there is no reason at all why he should. The letter of remorse should also be viewed in the context of continued offending of a similar nature over some 18 years,28 and the appellant’s known propensity for violence.

[32]     That he was able to identify that the victims would have been “shocked and upset” by him confronting them with his co-defendants is certainly a step in the right direction and shows some insight, but ultimately does not warrant any further discount for remorse beyond that recognised by the District Court Judge.

[33]     I accept Mr Collins’ submission that the circumstances of Mr Collins-Roberts’ guilty plea (made only after the sentencing indication) also brings into question the genuineness of his remorse, when compared to someone who had pleaded guilty immediately.29

[34]     Additionally, the fact Mr Collins-Roberts reinforced and reaffirmed his loyalty to the Mongrel Mob to the pre-sentence report writer is another reason to offer only a limited discount for remorse. Remorse is more compelling when coupled with steps to disassociate from the causes of offending. The cause of offending here, as identified by Mr Collins-Roberts in the pre-sentence report, is that he became “protective” of his associates. This is despite the fact that his associates instigated and were the aggressors of the offending. When considering remorse, actions speak louder than words,30 and the fact Mr Collins-Roberts wishes to maintain loyalty to the gang indicates he has not disassociated from the very influence that led to the offending.

[35]     This is not to suggest that Mr Collins-Roberts ought to have been denied a discount for remorse, and I acknowledge his willingness to participate in restorative

28     Johnson v Police, above n 19, at [20].

29     See Nicholl v R [2024] NZHC 1638 at [57].

30     Parkinson v R [2024] NZHC 2853 at [33].

justice in this regard. However, having regard to all the circumstances I do not accept that the deduction afforded (albeit unquantified) was so low as to be an error requiring correction on appeal. The evidence of remorse was sufficiently equivocal to be given little weight in sentencing.

Background factors

[36]     Credits for an offender’s background remain a discretionary exercise.31 The Supreme Court’s decision in Berkland v R has clarified that a causative contribution between an offender’s background and offending will be sufficient to merit a credit at sentencing.32 Mr Collins-Roberts’ background factors are set out in the pre-sentence report and in a post-interview summary document said to be dated 3 July 2017 completed by a solicitor at Cooper & Co Legal, although it is neither dated nor signed.

[37]     It is unnecessary to describe Mr Collins-Roberts’ background factors in full detail, but I note that his self-reporting clearly indicates that he had a difficult childhood. Mr Collins-Roberts moved around different foster homes (although most appeared to be good placements), describes searching for his biological father, developing an affiliation with and affinity to the Mongrel Mob, this association being entrenched through family, and falling into a pattern of being sentenced to imprisonment.

[38]     The District Court Judge found that Mr Collins-Roberts was subjected to a number of forms of abuse during state care which, no doubt, had a causative contribution to his offending. I agree that the lack of attachment to and support from his family, and the various forms of abuse that Mr Collins-Roberts suffered, influenced his poor life choices generally. I also agree that Mr Collins-Roberts’ loyalty to the gang contributed significantly to his offending but consider that loyalty has its genesis in his background factors.

[39]     The District Court Judge identified there was a causative connection between the appellant’s background and offending.

31     Rivers v Police [2024] NZHC 2847 at [43].

32     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.

Rehabilitation

[40]     The Judge did not factor Mr Collins-Roberts’ willingness to participate in rehabilitation into the reasons given for the 10 per cent deduction.33 The Judge addressed this as follows:

[17]There is what your counsel submits as a remarkably changed attitude on your part. I am limited in the weight that I can give to that because it is all very well there being positive sentiments before sentence has passed. What really needs to be demonstrated is a commitment beyond the point of sentence to rehabilitation.

(emphasis added)

[41]     The Judge described Mr Collins-Roberts’ initiative to seek  referral  to  Moana House as  a  “positive”  but  observed  that  it  was  “very  early  days  for  [Mr Collins-Roberts]”.34 The Judge clearly took the view that the enquiry made about Moana House was not enough to justify a further deduction to Mr Collins-Roberts’ sentence. In my view, it was open to the Judge to determine that more was required for him to be satisfied that some real discount should be granted for rehabilitative efforts.35 Although expressing an interest in rehabilitation represents a positive step in the right direction, it does not compel an award of a discrete credit.36

Result

[42]     The requirement on an appeal against sentence is to stand back and assess the end sentence to determine whether it was manifestly excessive. Here, even if the credits for remorse and background factors were separated out, as is desirable, I do not consider they warrant adjustment to the end sentence to the extent remorse was shown by the letter, it was at the lower end, particularly given the other conflicting evidence as to remorse. The difference is not sufficiently material to adjust the end sentence.

[43]     I consider the Judge did not make any error and the sentence is not manifestly excessive.

33     Police v Roberts, above n 5, at [19].

34 At [13].

35     Johnson v R, above n 19, at [20].

36     See Berkland v R, above n 32, at [159]–[160] where “exceptional” rehabilitative actions were afforded a 10 per cent deduction.

Conclusion

[44]The appeal is dismissed.

Solicitors:

Crown Law, Dunedin

Copy to:
N L Rayner, Barrister, Dunedin