R v Collins
[2012] NZHC 2850
•30 October 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-092-006537
CRI-2012-092-003400 [2012] NZHC 2850
THE QUEEN
v
UPUMONI COLLINS
Charges: Selling cannabis x 1
Possession of cannabis for supply x1; Injuring with intent to injure x1
Plea: Guilty
Appearances: D M Robinson for Crown
H Retzlaff for Prisoner
Sentenced: 30 October 2012
Selling cannabis and possession of cannabis for supply –
1 year, 8 months’ imprisonment on each (concurrent)
Assault with intent to injure – 1 year, six months; imprisonment
(cumulative on other sentences).
Total: 3 years, two months’ imprisonmentSENTENCING NOTES OF VENNING J
Solicitors: Crown Solicitor, Auckland
Copy to: H Retzlaff, Public Defence Service, Manukau
R V COLLINS HC AK CRI-2012-092-006537 [30 October 2012]
[1] Upumoni Collins, you are for sentence having pleaded guilty to one count of selling cannabis, one count of possession of cannabis for supply and one count of injuring with intent to injure. The cannabis charges each carry a maximum term of eight years’ imprisonment. The charge of injuring with intent to injure carries a maximum term of five years’ imprisonment. You are for sentence in this Court because the District Court declined jurisdiction.
[2] Just before midday on 8 March this year the police searched your home. They found 26 cannabis tinnies in a container on the washing machine. They found
$6,092 cash on you. You admitted ownership of the tinnies and accepted the cash was from the sale of cannabis. You said you had been selling cannabis since December 2011. While the police were at your address carrying out the search approximately 15 members of the public arrived within one and a half hours to buy cannabis from you. On 10 May 2012, while on bail, you assaulted your former partner. The pair of you had been drinking during the day. At about half past seven that night she went to a neighbour’s house. A short time later you arrived at the address. You were angry and yelling abuse at her. She ran to the bathroom and locked the door behind her. You chased her and kicked the door down. You broke it off its hinges. You then went into the bathroom and punched her several times to her head. She fell to the floor and as she was lying on the floor you kicked her several times to the head. You then left the address. As a result of your assault on her the victim suffered a fractured eye socket and serious bruising to her face.
[3] The pre-sentence report records you have no previous convictions for drug related offending and you have not previously been convicted of any assaults or any violent offending.
[4] However, as I have noted it is of some concern the report suggests you have sought to minimise your culpability, particularly in relation to the violent attack on your former partner. You have suggested you would benefit from anger management programmes to help you deal with provocation from others. I note you go on to say you considered some time ago your relationship with the victim was not a good one and you have no intention to return to her. But as I have recorded, the incident occurred when you followed her to the neighbour’s property and, despite her
attempts to get away from you, you broke the door down and carried out the assault on her.
[5] As for your drug offending the pre-sentence report notes your explanation. You said you effectively took the business over when someone else, who had been running it, went to prison. That perhaps should have put you on notice as to what to expect. You said you did not think you would be doing it for any length of time and said you were a bit short of money and so carried on with the operation.
[6] In sentencing you I am required to take account of the purposes and principles of the Sentencing Act. The particularly relevant purposes in this case are:
to make you accountable for the harm done to the community by drug
offending and to your victim in terms of the assault on her;
to make you accept responsibility for and acknowledge the harm caused by
your actions;
to provide for the victim’s interests;
to denounce your offending; and
to deter you and others from committing similar offending.
[7] The particularly relevant principles are:
to consider your degree of culpability;
the seriousness of your offending, which is reflected by the maximum terms imposed by Parliament that I have referred to; and
tofix a sentence consistent with other sentences for similar offending before this Court.
[8] The Crown submit an appropriate starting point for sentencing you is in the range of three years’ imprisonment on the cannabis charge and two and a half years’ imprisonment on the injuring with intent to injure, in total five and a half years. The Crown accepts 25 per cent reduction for your guilty pleas would be appropriate. Mr Retzlaff has submitted on your behalf the available range for the violent offending would be up to two years, three months and perhaps two and a half years for the cannabis offending. He then submits with regard to totality a combined starting point of between three and a half to three years, 10 months’ imprisonment could be taken by the Court. He also argues for the full reduction for your guilty plea and refers to other positive features, such as your remorse and rehabilitation efforts.
[9] I agree with the Crown that the appropriate approach is to impose cumulative sentences between the two types of offending. The drug offending and the assault are quite different in kind. The cumulative sentence will itself be subject to the totality principle in s 85 of the Sentencing Act.
[10] Your drug offending falls squarely within category 2 of R v Terewi.[1] Apart from Terewi I have had regard to the cases of R v Wong;[2] R v Siakifilo;[3] and R v Clegg[4] in particular. Although you were found with relatively few number of tinnies in your possession, in excess of $6,000 cash was found on you. When that is taken
together with the number of people that visited your home while the police were there, there is ample evidence of a relatively small scale but busy commercial operation. I take as a start point for the cannabis offending two years eight months’ imprisonment.
[1] R v Terewi [1999] 3 NZLR 62 (CA).
[2] R v Wong HC Auckland CRI-2006-092-5126, 13 October 2006.
[3] R v Siakifilo HC Auckland CRI-2006-092-9756, 27 February 2007.
[4] R v Clegg HC Tauranga CRI-2008-070-2119, 9 July 2008.
[11] I then turn to the assault on your partner. The aggravating features of this offending are that it was committed while you were on bail for the cannabis offending. It was also an abuse of your partner in a domestic setting. You used actual violence and quite nasty violence by kicking her to her head. It was a serious
attack and could have had far more serious consequences. As it was she suffered a
fractured eye socket. I have considered the Court of Appeal decision in R v Harris.[5]
In that case Mr Harris pushed the victim, who hit her head on a concrete wall. She lost consciousness. He then dragged her across the ground and continued his assault punching and kicking her in the head. The Court of Appeal considered that to be a case of moderate to serious injury. She only ultimately though suffered bruising around her face and eyes and bruising throughout her body and grazing. She lost consciousness twice. In your case it does not appear the victim lost consciousness but nevertheless as a result of your assault she did suffer the consequences of a broken eye socket. An assault on the head and around the eyes by kicking is serious offending in my judgment. I consider a starting point of two years, four months to be appropriate.
[5] R v Harris [2008] NZCA 528.
[12] The cumulative starting point for your offending then is five years. Having regard to totality I accept that the starting point should be adjusted. I adjust it to four years, six months.
[13] I then turn to your personal aggravating and mitigating factors. There are no personal aggravating factors. While you have previous convictions they are not particularly relevant to your current offending.
[14] In terms of mitigating factors Mr Retzlaff has referred to your remorse which he says is illustrated by your immediate co-operation and disclosures to the police. However, as noted, I do not consider the pre-sentence report supports a submission you are truly remorseful. You still lack an understanding of the effect of your offending on your victim. To the extent you co-operated with the police and pleaded guilty at an early stage that is in my view adequately reflected in the credit for the guilty plea itself. I note that in both cases the prosecution case against you was a particularly strong one in any event. Mr Retzlaff also has referred to your attempts at rehabilitation. He notes you self referred to Odyssey House and has referred to other courses that you have undertaken. I accept his submission that you should be given some credit for the steps you have taken, albeit they are somewhat late in the piece to address, in particular, your alcohol addiction. Alcohol I am sure is behind
your offending, at least in relation to the violent offending. You obviously also have
an issue with cannabis that you should address. I propose to allow a further reduction of three months to take account of those belated steps you have taken to address the source of your offending. The major credit I can give you is for your guilty pleas. As I have noted it could be said that 25 per cent reduction is relatively generous but I am prepared to apply that in your case.
[15] Mr Collins please stand. On the charges of selling cannabis and being in possession of cannabis for supply you are in each case sentenced to imprisonment for one year, eight months. Those sentences are concurrent. On the charge of assault with intent to injure you are sentenced to imprisonment for one year, six months. That sentence is cumulative on the other drug sentences. The total term of imprisonment is three years, two months.
[16] There will also be an order for forfeiture of the money found at your property of $6,092. That should be forfeited to the Crown. Stand down.
Venning J