COLLINGS v R [2022] NZCA 605

COLLINGS v R [2022] NZCA 605 [5 December 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA318/2022[2022] NZCA 605BETWEEN GARATH RICHARD COLLINGSAppellantAND THE KINGRespondentHearing: 21 September 2022Court: Gilbert, Brewer and Moore JJCounsel: D J Matthews and O K Jarvis for AppellantE J Hoskin for RespondentJudgment: 5 December 2022 at 2 pmJUDGMENT OF THE COURTThe appeal against sentence is dismissed.REASONS OF THE COURT(Given by Moore J)Introduction[1] The appellant, Garath Collings, was found guilty of one charge of murderfollowing trial by jury in the High Court at Christchurch.1 On 1 June 2022, he wassentenced by Mander J to life imprisonment with a minimum period of imprisonment(MPI) of 11 years.21 Crimes Act 1961, s 167.2 R v Collings [2022] NZHC 1275 [Sentencing notes].[2] Mr Collings now appeals his sentence.3 He says that a finite sentence, ratherthan life imprisonment, should have been imposed. Alternatively, if life imprisonmentwas appropriate, the MPI should not have exceeded 10 years.The offending[3] On 13 July 2020, Mr Collings, together with a male associate, drove his car tothe end of a cul-de-sac in suburban Christchurch. The purpose of the trip was to pickup a friend, Ms Fielding, from her address. Also present at the address wasthe deceased, Mr Friend.[4] 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 ofa cul-de-sac in Parklands, here in Christchurch. You, together with a maleassociate, 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 approachedfrom the address and spoke with her through the window. He then walkedaround the front of the vehicle to the driver's side and commenced speakingwith you through the driver's window.[5] There was evidence the two of you did not get on and there existeda mutual animosity. That was why arrangements had been made earlier thatmorning designed, at least initially, to avoid the two of you coming intocontact and was illustrated by Ms Fielding's efforts to get others to pick herup from the address.[6] As it was described by Mr de Lambert, you and Mr Friend beganbickering. Voices were not raised and the exchange was relatively short.There is some evidence that Mr Friend may have made a threatening commentrelating to your family. As I said, the exchange of words was relatively briefand, from the point of view of the other two people in the car, not particularlynoteworthy, although you were observed as having become "a wee bitflustered" and annoyed.[7] As Mr Friend walked in front of your car to return to the kerb, yousuddenly accelerated and drove at him. The deliberateness of this action wasmarked by the way you turned the vehicle's wheels towards him with theobvious intent of striking him. You continued to accelerate the vehicle until itfinally crashed. At no stage did you pause. You ignored the reactions ofthe other occupants of the vehicle and made no attempt to brake. Mr Friendwas effectively taken from a point on the road onto the footpath and acrossthe length of the street frontage of the nearby address. His attempts to remain3 Criminal Procedure Act 2011, s 244(1).upright and retreat were in vain. As was apparent from the video footagewhich 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 andwas inevitably dragged underneath.[8] You must have been aware of Mr Friend's predicament but you carriedon regardless. Rather than stop or slow down, to the contrary, you kept onaccelerating. This was clearly a conscious act on your behalf. Your obviousobjective was to run him over and, as the jury must have at the very leastconcluded, you did so appreciating the danger to Mr Friend's life in the wayyou used the vehicle against him. You only came to a stop once the car couldeffectively 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 ofthe collision, you reversed back before driving around Mr Friend as he layprone on the ground, and drove away without stopping or checking on hiscondition. He died at the scene while being treated by attending ambulancestaff.[10] You drove with your passengers for a number of kilometres.However, your car was damaged and you were forced to stop in the parkingarea of a local park. After obtaining the assistance of a lawyer, you presentedyourself to police later that day.High Court sentencing[5] 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 thatMr Collings was in a depressive state as a result of the recent death of his daughterand that this, combined with the emotional after-effects of methamphetamine takenthe night before and his diagnosis of post-traumatic stress disorder (PTSD) constituteda form of provocation, thus leading to his extreme reaction.4[6] The Judge did not, however, consider these circumstances mitigatedMr Collings' actions to such a degree as to displace the presumption in favour of lifeimprisonment.5 It followed that the Judge was satisfied the imposition of a sentenceof life imprisonment would not be manifestly unjust.64 Sentencing notes of evidence, above n 2, at [19]–[20].5 At [20].6 At [22].[7] The Judge then turned his mind to the MPI. He identified the key issue aswhether an additional period beyond the statutory minimum of 10 years was requiredto satisfy the purposes and principles of sentencing.7[8] He noted that while brutality, cruelty, and callousness are present to a certaindegree in all murders, Mr Friend's death, caused in particularly senseless and suddencircumstances, compounded the suffering of his family.8 The Judge went on toidentify 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[9] As for mitigating features, the Judge accepted, as already noted, thatMr Collings was in a depressive state and that there may have been an element ofprovocation.13[10] In setting the starting point for the MPI, the Judge reviewed a number ofsentencing decisions for murder involving the use of a motor vehicle, noting that notwo cases are exactly alike.14 In circumstances broadly comparable to the present, butinvolving additional aggravating features, non-parole periods of 13 years wereimposed.157 At [23]; and Sentencing Act 2002, s 103(2).8 At [24].9 At [25].10 At [26].11 At [27].12 At [28].13 At [29]–[30].14 At [31].15 At [32], citing R v Kinghorn [2014] NZCA 168; and Pukeroa v R [2013] NZCA 305.[11] Taking the above into account, and making the necessary allowances forthe reactionary nature and context of Mr Collings' offending, the Judge set a startingpoint for the MPI of 11 years. But for that aspect of the offending, he saidthe non-parole period would have been significantly higher.16[12] The Judge did not consider there to be any additional factors personal toMr Collings impacting on the length of the MPI, nor did he consider any uplift waswarranted 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 factoredthis into his assessment of culpability.18Approach on appeal[13] This Court must allow the appeal if it is satisfied that for any reason there wasan error in the sentence imposed on conviction and a different sentence shouldbe imposed.19 The focus is on the sentence imposed, rather than the process by whichit is reached.20 The Court will not interfere where the sentence is within the range thatcan properly be justified by accepted sentencing principles.21 To this end, the conceptof a "manifestly excessive" sentence is well-engrained and there is no reason not toapply it.22Issues on appeal[14] 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; and16 At [35].17 At [36]–[37].18 At [38].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].(b) if a sentence of life imprisonment was appropriate, whetherthe minimum period of imprisonment imposed by the Judge wasmanifestly excessive.Did the Judge err by imposing a sentence of life imprisonment?[15] Mr Matthews, for Mr Collings, submitted that a sentence of life imprisonmentwas manifestly unjust, and that a finite sentence should have been imposed.[16] Section 102(1) of the Sentencing Act 2002 provides that an offender who isconvicted of murder must be sentenced to life unless, given the circumstances ofthe offence and the offender, a sentence of imprisonment for life would be manifestlyunjust.[17] Mr Matthews acknowledged that the presumption has only been displaced ina 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 severeand prolonged abuse,24 defendants who did not commit the principal offending,25defendants suffering from a major psychotic illness,26 and defendants who wereextremely young.27 However, Mr Matthews submitted that there is no fetter onthe court's assessment of whether life imprisonment would be manifestly unjust andthat each case must be considered on its own merits.[18] The offending in the present case, according to Mr Matthews, is best describedas 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 onMr Collings due to circumstances in his personal life. These are outlined in the reportof Dr James Fould, in which the psychiatrist expresses a view that Mr Collings' threatprocessing mechanisms were "deranged" at the time of the offending due tothe combined effects of grief, PTSD and methamphetamine abuse. Mr Matthewssubmitted that these matters were understated by the Judge.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.[19] Ms Hoskin, for the Crown, submitted that the Judge did not err in imposinga sentence of life imprisonment. Ms Hoskin referred to the comments of this Court inR v Rapira to the effect that the presumption is likely to be displaced in "exceptionalcases only" and submitted that the decisions referred to by the appellant serve only toillustrate this.28[20] Ms Hoskin also argued that the brevity of the offending does not distinguish itin any meaningful way from other circumstances where an offender makes aninstantaneous decision to deploy a weapon with lethal force. Additionally, Ms Hoskinsubmitted that the absence of premeditation is not a mitigating factor, and thatthe appellant's submissions regarding provocation risk overstating the victim'sconduct.[21] Ms Hoskin submitted that the mental health issues from which Mr Collings issaid to suffer may help to contextualise his actions, but fall distinctly short of reducinghis culpability to a level where life imprisonment would be manifestly unjust.[22] 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 presumptionin 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 ofmethamphetamine. These circumstances were evidently taken into account bythe Judge when determining whether or not to impose a sentence of lifeimprisonment,29 and again, in more detail, when considering the appropriate MPI.30There is, however, no suggestion in the material before this Court that Mr Collingswas labouring under the effects of mental ill-health to such a degree that he had nocontrol 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 asreducing culpability in cases involving battered defendants, for example.3128 R v Rapira [2003] 3 NZLR 794 (CA) at [121].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; andR v Rihia, above n 24.[23] We accept that any premeditation was limited and that the offending waslargely reactionary. On the other hand, the CCTV footage makes it clear thatMr 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 theJudge observed, Mr Collings must have been aware of Mr Friend's predicament butcarried on regardless. He then drove away without checking on Mr Friend's conditionor rendering assistance, callously leaving the victim to his fate.[24] Finally, as Mr Matthews responsibly acknowledged, the remark made byMr Friend cannot, in and of itself, reduce Mr Collings' culpability to the point wherelife imprisonment would be manifestly unjust. This is especially so in the absence ofany conclusive evidence as to the actual words used by Mr Friend, and due to the effectof the evidence of those who were in the car at the time; namely that whatever wassaid was brief and not particularly noteworthy.[25] As did the Judge, we do not consider that the circumstances mitigateMr Collings' actions such as to render a sentence of life imprisonment manifestlyunjust.[26] It follows that this aspect of the appeal must fail.Did the Judge err by imposing an MPI of 11 years?[27] We now turn to consider whether the Judge imposed an MPI which wasmanifestly excessive.[28] Mr Matthews submitted that the MPI should not have exceeded the statutoryminimum of 10 years in light of the mitigating factors discussed above, particularlythose relating to provocation and the personal circumstances of the appellant.[29] He submitted that the two principal authorities considered by the Judge, inwhich 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 ordered32 Pukeroa v R, above n 15; and R v Kinghorn, above n 15.in Pukeroa v R was calculated by reference to charges which were additional tothe murder.[30] Ms Hoskin submitted that an MPI of 11 years is broadly consistent withcomparable cases and adequately reflects the factors engaged in the present case.She pointed out that the Judge expressly acknowledged that both Pukeroa v R andR v Kinghorn involved additional aggravating features and took this into account whensetting a lower MPI.33[31] She also submitted that the Judge gave due consideration to Mr Collings'personal circumstances, factoring these into the starting point rather than providing adiscount at a later stage. This approach, in Ms Hoskin's submission, withstandsscrutiny and represents an appropriate response to the material before the Court.[32] Given our discussion on the first ground of appeal, and having reviewedthe 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 useof a motor vehicle and may in fact be regarded as generous. On that point we notethat in R v Shadrock an MPI of 12 years was imposed in circumstances wherethe evidence did not establish that the defendant deliberately drove into the victim.34[33] As Ms Hoskin submitted, in setting a starting point of 11 years, the Judgefactored in the reactionary nature of the offending and Mr Collings' mental state atthe time.35 The Judge was entitled to deal with Mr Collings' mitigating factors in thatway, particularly as no uplift was applied to reflect his prior convictions nor the factthat he was subject to a sentence of supervision at the time of the offending. The Judgealso noted that Mr Collings, although apologetic, appeared largely focused on his ownpredicament, rationalising his culpable actions to himself and others.3633 Sentencing notes, above n 2, at [32] and [35].34 R v Shadrock HC Auckland CRI-2009-092-3881, 2 July 2010 at [63] and [73], the sentence wasimposed, following a retrial, in R v Shadrock [2012] NZHC 1775.35 Sentencing notes, above n 2, at [33] and [35].36 At [38].[34] 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[35] The appeal against sentence is dismissed.Solicitor:Crown Law Office, Wellington for Respondent