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Official Assignee v Wilson

Official Assignee v Wilson

Case [2007] NZCA 122 4 April 2007

Unconscionable Conduct

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA334/06
[2007] NZCA 122
THE QUEEN
v
LISA HELEN RILEY
Hearing:8 March 2007

Court:Ellen France, John Hansen and Williams JJ
Counsel:A N D Garrett and D I Brown for Appellant

D J Boldt for Crown

Judgment:4 April 2007 at 3 pm

JUDGMENT OF THE COURT

A THE APPEAL IS ALLOWED.
BThe sentence of seven years imprisonment is quashed and a sentence of six years imprisonment is substituted.

REASONS OF THE COURT
(Given by Ellen France J)
Introduction
[1]       The appellant, together with Aaron Dale Grimwood, was convicted after trial in the High Court of manslaughter. She was sentenced by Fogarty J, the trial judge, to a term of seven years imprisonment. Mr Grimwood was sentenced to six years imprisonment.
[2]       The appellant appeals against sentence. The appeal raises issues about the assessment of culpability by the sentencing Judge and of mitigating factors.
Factual background
[3]       Both the appellant and Mr Grimwood were charged with the murder of Phillip John Mullaly. The victim was Mr Grimwood’s half-brother and he lived at Uxbridge Street in Christchurch together with the appellant, Mr Grimwood, their two children and the victim’s son.
[4]       Prior to the homicide, the appellant and Mr Grimwood had told others that they were concerned about the way the victim treated his son. On the day of the homicide, the appellant and Mr Grimwood told the appellant’s half-sister that Mr Mullaly’s behaviour was so bad that they wanted to kill him.
[5]       On the evening of 30 August 2005, the appellant and Mr Grimwood had a long argument with the victim initially about a set of car keys. In the course of the argument, the victim picked up a knife. He was heavily intoxicated and Mr Grimwood was able to disarm him easily. Mr Mullaly left the room and came back a little later with a broomstick which he used to threaten the three children. He demanded that his son remove the television from the living room through to a bedroom.
[6]       Mr Grimwood stood up and struggled with Mr Mullaly and they fell to the ground. He placed Mr Mullaly in a choker hold. In her interview with the police, the appellant admitted that she kicked the victim in the back or ribs while he was on the ground. Eventually, the victim stopped resisting, lost consciousness and, in all probability, died. The two pathologists, Dr Sage and Dr Dempster, concluded that it was more likely that death was caused by strangulation.
[7]       At this point, the appellant got a scarf and told Mr Grimwood to tie the victim’s hands. The two of them put the victim in the boot of their car. The appellant drove Mr Grimwood and the victim to the Waimakariri River where they threw the victim into the water. When the body floated back towards the bank, Mr Grimwood got into the water and pushed the body out further into the current.
[8]       That night after the homicide, Mr…

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 Official Assignee v Wilson

Details

AGLC: Official Assignee v Wilson [2007] NZCA 122
Case: [2007] NZCA 122
Decision Date: 4 April 2007

CaseChat Overview and Summary

In this appeal, the appellant Lisa Helen Riley challenges the sentence imposed by the High Court for her role in the manslaughter of Phillip John Mullaly. The appellant and her co-accused, Aaron Dale Grimwood, were convicted of manslaughter following a violent altercation at a residence in Christchurch where they all lived together. The sentencing judge, Fogarty J, imposed a seven-year prison sentence on the appellant, whereas Grimwood received a six-year sentence. The appellant contends that the sentence imposed on her is excessive and disproportionate to her actual involvement in the incident, and that the mitigating factors were not adequately considered. The central issues before the Court of Appeal were the assessment of the appellant’s culpability and the appropriate weight given to the mitigating factors.

The Court of Appeal found that the sentencing judge had not erred in considering the appellant's conduct after the fight but noted that this conduct could not elevate her culpability above that of Grimwood, given the circumstances as directed to the jury. The Court emphasised that the appellant had a limited role in the fight itself, and while she was more involved in the subsequent disposal of the victim's body, this did not make her culpability greater than that of Grimwood. Regarding the mitigating factors, the Court acknowledged that the sentencing judge was entitled to consider the late and informal nature of the guilty plea offer and the limited expression of regret by the appellant. The Court also found that the judge had adequately considered the previous conduct of the victim, the appellant's limited involvement in the fatal acts, and her age. Consequently, the Court concluded that the appellant should have received the same sentence as Grimwood.

The appeal was allowed, and the sentence of seven years imprisonment was quashed. A sentence of six years imprisonment was substituted in its place.

Orders