R v Collings

[2022] NZHC 1275

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-009-6184

[2022] NZHC 1275

THE QUEEN

v

GARATH RICHARD COLLINGS

Hearing:

1 June 2022

Appearances:

D L Elsmore and A M Harvey for Crown

D J Matthews and O K Jarvis for Defendant

Judgment:

1 June 2022

SENTENCING REMARKS OF MANDER J

[1]                 Mr Collings, I will ask you to stand at the conclusion of my sentencing remarks so you may remain seated while I deliver them.

[2]                 Mr Collings, you are for sentence this morning for the murder Robin Friend.1 It is necessary that I set out the factual basis upon which I proceed to sentence you this morning. The circumstances are of relatively short compass.

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.

1      Crimes Act 1961, ss 167(b) and 172(1).

R v COLLINGS [2022] NZHC 1275 [1 June 2022]

[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 say, 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.

Victim impact statement

[11]              I have received victim impact statements from Mr Friend’s family that attest to the grief they have suffered from his loss. They struggle in particular with the sudden and senseless way in which his life was taken and, understandably, cannot comprehend how you would deliberately inflict such trauma and grief on their family by committing such a violent act.

[12]              Notwithstanding their loss, there is also an appreciation of how your actions will impact on your own family.

Personal circumstances

[13]              Mr Collings, you are a 43-year-old man who, while having previously been in paid employment, was at the time of this offending unemployed and receiving ACC payments for injuries sustained in a car accident in 2012. You have the ongoing support of your parents, who raised you in a loving and caring environment, and you referred the pre-sentence report writer to a number of pro-social friends who continue to support you. You are a father of five children from two previous relationships, to whom you have tried to be a good parent and have maintained a good relationship with your three youngest children.

[14]              You have suffered from a number of health issues from an early age, the most debilitating of which appears to be regular bouts of depression. You advise you have had to cope with dyslexia and have twice been diagnosed with testicular cancer, although treatment has been successful and you remain in remission. Your mental health is reported to have regressed after the death of your adult daughter in a road accident not long before the incident the subject of these criminal proceedings. Over this period you have regularly used methamphetamine.

[15]              You have a relatively extensive criminal history, some 33 convictions, that date back to 1997 and continues through to 2020. While the frequency of your offending has steadily reduced since 2012, a conviction for assault in 2018, two earlier convictions for male assaults female in 2008, together with relatively recent convictions for breaching a protection order, are said to be indicative of a tendency to commit reactionary violence.

[16]              You claim to have no memory of the offending and insist you had no intention of killing anyone. You also report that you were not involved in any ongoing conflict with Mr Friend, other than your dislike of the way he spoke to Ms Fielding. You claim your actions, in driving away from the scene, were a result of following your friends’ instructions. I am bound to observe that some of those claims are inconsistent with the evidence that was given at your trial.

Approach to sentence

[17]              An offender who is convicted of murder must be sentenced to life imprisonment unless the circumstances of the offence and the offender would render such a sentence manifestly unjust.2 There is therefore a strong presumption in favour of life imprisonment for the offence of murder unless it can be displaced in the individual circumstances of the  particular  case  and/or  the  particular  offender.3  Mr Matthews has argued on your behalf this is such a case.

2      Sentencing Act 2002, s 102(1).

3      R v Rapira [2003] 3 NZLR 794 (CA) at [121].

[18]              He submits that any premeditation was extremely limited and that your offending was clearly impulsive and occurred over only a matter of seconds. In particular, he places emphasis on what he submits was the immediate catalyst for the offending — being a remark that Mr Friend made which, while you yourself have no recollection of the actual words used, is said to have had a particular impact upon you as a result of your mental state and a recent bereavement.

[19]              Reliance is placed on the fact your daughter had recently passed away and that this event had “crushed” you and left you in a fragile mental state which caused you to overreact to the threat made by Mr Friend. I have had the benefit of a recent psychiatric report on you prepared by Dr Foulds. Your mental state at the time is said to have been exacerbated by long-term symptoms of PTSD that you suffered as a result of your involvement in the death of a childhood friend. The psychiatrist opined that it is likely — and I quote from the report — “It is likely Mr Collings’ threat processing mechanisms in his brain were deranged at the time, due to the combined effects of grief, PTSD and methamphetamine abuse”.

[20]              While I accept that Mr Friend’s words and your grief may well have played their part in causing you to react the way you did, I do not consider those circumstances mitigate your actions in killing Mr Friend, at least not to such a degree that would render the imposition of a sentence of life imprisonment for murder manifestly unjust. As I later discuss in these sentencing remarks, Mr Friends’ words may constitute a form of provocation and your mental state as a result of the recent death of your daughter may to some extent bear on why you acted as you did, but I am not persuaded that it is capable of explaining your actions or mitigating your culpability to the extent necessary to displace the strong presumption that life imprisonment should follow a conviction for murder.

[21]              Mr Matthews further submitted that I should approach sentencing on the basis the jury’s verdict was founded on a finding that you were reckless as to whether death occurred and there was little evidence from which a direct intention to kill could be inferred. I accept the Crown put its case on the basis of those alternative murderous intents, but, having regard to the way you continued to drive your vehicle at Mr Friend, I do not consider it can clearly be excluded that you did not have an intention to kill

him. It is not necessary for me to come to any concluded view regarding that aspect. While I accept what you did was a reactionary or impulsive act, your conduct, albeit within a very short space of time — a matter of seconds — was almost inevitably going to result in Mr Friend’s death.

[22]              I am of the view that the imposition of a sentence of life imprisonment in this case would not be manifestly unjust. It follows that this will be the sentence which I will impose on you today. The Crown rightly accepts that s 104 of the Sentencing Act is not engaged. The only remaining issue that arises is the question of the minimum period of imprisonment that should be imposed as a condition of that sentence.4

Minimum period of imprisonment

[23]              The minimum period is the term you must serve before you will be eligible to be considered for parole. In assessing that period, I am required to compare your culpability with cases of murder that attract the normal statutory minimum of 10 years that serves as a benchmark for the sentencing exercise. Taking into account aggravating and mitigating factors, I am required to decide whether an additional minimum period is required to satisfy the sentencing purposes of accountability, denunciation, deterrence and community protection.5

Aggravating features of the offending

[24]              As the Crown has acknowledged, all murders in some sense involve elements of brutality, cruelty and callousness.6 The taking of another person’s life as a result of the deliberate commission of violence has an obvious and profound effect, not only obviously on the victim but on their family and friends. This case is no exception.  Mr Friend’s death in particularly senseless and sudden circumstances compounds the family’s despair.

[25]              You used your motor vehicle as a lethal weapon. A vehicle is an inherently dangerous thing. You resorted to your car in the same way a person may use a gun or

4      Sentencing Act, s 103.

5      Sentencing Act, s 103(2); R v Williams [2005] 2 NZLR 506 (CA) at [49]; Robertson v R [2016] NZCA 99 at [80].

6      R v Slade [2005] 2 NZLR 526 (CA) at [40].

knife  that  is  readily to hand.    The fatal consequences of so doing were just as foreseeable and would have been readily apparent to you.

[26]              As is clear from the video footage, you waited until Mr Friend was directly in front of your vehicle before acting, or reacting, in the way you did. While in that position, Mr Friend was particularly vulnerable. Because of the way you rapidly accelerated and the vehicle quickly gained speed, Mr Friend had no chance to avoid being run over. While this happened extremely quickly within that short timeframe, there was still an opportunity after driving the vehicle forward for you to brake or swing the car away from Mr Friend but you chose not to.

[27]              I accept there was no  premeditation  in  the  sense  you  intended  to  harm Mr Friend when you arrived at the cul-de-sac or, indeed, when you started speaking with him. If Mr Friend had not come out from the house, the two of you would not have crossed paths. However, while I am prepared to accept this was an act of reactionary violence on your part, it is clear from the way you waited for Mr Friend to walk some distance across the front of your vehicle, turned the wheels of the vehicle towards him and then accelerated the vehicle, your obvious intention was to attack him and cause him significant harm. He was effectively walking away at the time you decided to strike. As the Crown submitted, this was a continuing act which only stopped when you could not physically travel any further as a result of running into the tree.

[28]              Finally, there are your actions in leaving the scene and driving away without any regard for your victim. It appears your flight only ended because the damage to your vehicle prevented you from travelling any further away from the scene. Ultimately, you did not get far and, perhaps realising the reality of your predicament, you surrendered yourself to police.

Mitigating features of the offending

[29]              It is apparent there must have been some trigger to cause you to act in the way you did. At trial, the Crown referred to the reasonable possibility that Mr Friend may have made reference to your children during the course of the short exchange that occurred when you and Mr Friend spoke through the driver’s window. Ms Fielding

referred in her evidence to Mr Friend saying words to the effect “your kids better watch it” as he walked away from the car window. Given the recent loss of your daughter and the hostile relationship you had with Mr Friend, this may well have triggered your grossly disproportionate reaction.

[30]              This cannot excuse what you did, but I accept you were in a depressive state at the time as a result of the death of your daughter. I note your observation to Dr Foulds that methamphetamine makes you much more emotional and you had been taking that drug the night before. You said to the psychologist that you only recollect there was “some kind of threat” and you do not recall mention of your children, but it is likely Mr Friend’s words provoked you. It is a material consideration that I take into account as it is a likely factor in what then occurred.

Setting of starting point and sentence

[31]              The appropriate starting point when setting the minimum period of imprisonment for murder will be the product of the particular individual circumstances of each case and no two cases are exactly alike. However, in an endeavour to achieve consistency across the spectrum of cases, I have reviewed a number of sentencing decisions for murder which have involved the use of a motor vehicle. I am grateful to counsel for their review of relevant cases, and have also researched appropriate sentencing authorities myself.7

[32]              In the absence of s 104 of the Sentencing Act having application, non-parole periods of 13 years were imposed from a starting point of 15 years in two cases that involved the intentional running down of a victim in circumstances that approximate the present case.8 The Crown has acknowledged that in both there were additional aggravating features present. As I have already commented, no two cases are the same and the circumstances will invariably differ.

[33]              I have reviewed the circumstances of your murder of Mr Friend. It is apparent that you must have reacted to what Mr Friend said to you, perhaps as a parting

7      Pukeroa v R [2013 NZCA 305; Cornelius v R [2014] NZCA 123; R v Fungavaka [2015] NZHC 2761; R v Kinghorn [2014] NZCA 168.

8      R v Kinghorn, above n 7; and Pukeroa v R, above n 7.

comment as he moved away from the driver’s window. The very fact he walked around in front of your vehicle demonstrates he had no inkling of what you would then do and was completely at your mercy. Your passengers were shocked by what then occurred. The deliberateness of your action was plain and the potentially fatal consequences of using your vehicle to run Mr Friend down were equally obvious. This, in my view, was reflected in the relative swiftness of the jury’s verdict. However, I need to take into account your mental state at the time as a result of the grief surrounding your daughter’s death and the PTSD symptoms that are said to have affected you.

[34]              Ms Elsmore, on behalf of the Crown, submitted that in light of these previous decisions an appropriate minimum non-parole period would be between 11 to 12 years’ imprisonment and that such an order would appropriately reflect the aggravating factors of this case. Your counsel, Mr Matthews, on the other hand, argued that a non- parole period of no more than 10 years’ imprisonment ought to be imposed.

[35]              I consider your offending warrants a starting point higher than the mandatory minimum term of imprisonment of 10 years. In setting that starting point, as I have already commented, I make allowance for the reactionary nature of your offending to arrive at a minimum non-parole period of 11 years. Absent that aspect of the circumstances of your offending, the non-parole period would have been considerably higher.

Personal circumstances

[36]              I do not consider there are any other personal circumstances personal to you, rather than the offending itself, that impact on the length of the minimum term of imprisonment.

Aggravating features of the offender

[37]              At the time of the commission of this offence you were subject to a sentence of supervision arising out of your convictions on domestic violence-related charges. I have earlier referred to your criminal history, including some convictions for assault. I also note you have been convicted for operating a vehicle carelessly. However, this

criminal background pales when compared to the magnitude of the charge for which you are for sentence today and I do not consider your prior convictions warrant any uplift.

Personal mitigating features

[38]              To the extent your personal background is relevant to your offending, I have already factored that into my assessment of your culpability. While you have had a number of misfortunes in your life, it is not apparent there is any particular aspect of your upbringing or personal circumstances that additionally bears on the length of the minimum term of imprisonment or should be taken into account in mitigation to reduce that period. You told the pre-sentence report writer that you were sorry for the harm you have caused but you appear largely focussed on your own predicament, rationalising your actions to yourself and others.

Conclusion

[39]              Before concluding my sentencing remarks, I need to emphasise the sentence that is being imposed on you today Mr Collings is one of life imprisonment. The accompanying minimum period of imprisonment is secondary to the fact that life imprisonment means just that. You may be required to spend the rest of your life in prison unless and until the Parole Board is able to conclude you can safely be released into the community. The effect of setting a minimum term of imprisonment is only to impose the period which must elapse before the Parole Board can commence considering that possibility.

Result

[40]Mr Collings, will you now please stand.

[41]              Mr Collings, you are sentenced on the charge of murdering Robin Friend to life imprisonment with a minimum period of imprisonment of 11 years.

[42]You may stand down.