Coleman v R [2015] NZHC 3298 (18 December 2015)

Last Updated: 20 April 2016

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-331 [2015] NZHC 3298

BETWEEN	DYLAN EDWARD COLEMAN Appellant
AND	THE QUEEN Respondent

Hearing:	30 November 2015
Counsel:	A J Maxwell-Scott for Appellant R M A McCoubrey for Respondent
Judgment:	18 December 2015

_{JUDGMENT OF BREWER J}

This judgment was delivered by me on 18 December 2015 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: Annabel Maxwell-Scott (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

COLEMAN v THE QUEEN [2015] NZHC 3298 [18 December 2015]

Introduction

[1] Mr Coleman appeals against a sentence of four years and two months’ imprisonment imposed on him by Judge NR Dawson in the District Court at Auckland on 3 July 2015.¹ He argues that the sentence is manifestly excessive, particularly since he must serve the whole of it without parole because of the operation of the “three strikes” regime.

Background

[2] Mr Coleman pleaded guilty to a charge of exploitative sexual connection, which carries a maximum sentence of 10 years’ imprisonment.² Originally, he was charged with rape and with sexual violation through oral and anal penetration. A reading of the summary of facts shows why. It is too graphic to reproduce here. Broadly, the complainant was naïve, inexperienced and has a borderline intellectual disability. She had never met Mr Coleman before. He encountered her on a train and persuaded her to go with him. Mr Coleman got her drunk and then used her sexually. He disregarded her requests for him to stop or her plea that she wanted to

go home to see her Mum. He caused her pain.

[3] It is because of the complainant’s borderline intellectual disability that the charges against Mr Coleman were able to be reduced to the single charge of exploitative sexual connection.

[4] Prior to sentencing, the Court obtained a psychiatric report for Mr Coleman.³

It gives insight into Mr Coleman’s behaviour and raises real concerns for the safety

of the public upon his release.

[5] The following passages from the report are instructive:⁴

63. In my opinion, there is limited doubt that Mr Coleman would fulfil the criteria for a personality disorder not otherwise specified. Specifically, he would score highly on the categories of borderline,

¹ _{R v Coleman [2015] NZDC 12457.}

² _{Crimes Act 1961, s 138.}

³ _{Criminal Procedure (Mentally Impaired Persons) Act 2003, s 38(2)(b).}

⁴ Psychiatric report by Dr Lokesh, Consultant Forensic Psychiatrist, Regional Forensic Psychiatry

Services, dated 18 June 2015.

obsessive compulsive and narcissistic personality traits. These are characterised by a pervasive pattern of instability of interpersonal relationships, self-image and effects and marked impulsivity, beginning at childhood and presenting in a variety of contexts as highlighted in Mr Coleman’s condition ...

77. The Criminal and Traffic History suggest clear evidence that there has been an escalation in Mr Coleman’s history of sexual violence in severity over time.

78. The significant and salient risk factors which are of concern are Mr Coleman’s extreme minimisation of his sexual violence reflecting the presence of personality disorder or attitudes that support or condone sexual violence, and evidence that he has failed to establish and maintain realistic plans for the future but instead justifies his behaviour and blames the system for his offending. Although he has not been formally involved in any sexual offending treatment programmes there is evidence that he has negative attitudes towards intervention from his previous supervision failures and substance abuse programmes.

79. The most destabilising factors appear to be that of his inconsistent engagement with different services and with Community Alcohol and Drugs Service. With these structured risk assessment (sic), at present, I would consider Mr Coleman’s short-term risk of reoffending as moderate to high given the external measure of structure and control are limited at this stage.

80. Mr Coleman’s long-term risk of similar offending and breach of conditions are moderate to high as well. This can be mitigated by close monitoring of both the risk assessment items mentioned above through the provision of external measures to ensure he engages consistently with recommended treatment in addition to actively maintaining sobriety. It is important to note that Mr Coleman has had access to both Child Youth and Family Services and Community Alcohol and Drugs Service in the past but consistently becomes disengaged from treatment.

[6] Mr Coleman, who was 21 years old at the time of the offending, has relevant previous convictions. On 1 February 2013 he was sentenced to three months and

14 days’ imprisonment on one charge of indecent assault and one charge of aggravated assault. His conviction on the former charge garnered him a first warning under the “three strikes” legislation. The latter charge related to sexual advances to a young woman despite her repeatedly pushing him away.

The Judge’s sentence

[7] Judge Dawson identified the aggravating factors in the offending which are apparent from the material I have set out above. He adopted a start point of five

years and six months’ imprisonment and gave a 20 per cent reduction for the plea of guilty. The Judge found that Mr Coleman had shown remorse, took into account his age and “personal factors” and reduced the sentence by a further three months.⁵ In this way the end sentence of four years and two months was reached.

[8] In finishing, the Judge said this:⁶

... It is important that you receive the treatment in prison that is available to you and that period of time will allow that treatment to occur. The parole board can make any other decisions as to the suitability of the time for your release subject to their views of the success of the treatment that you receive while you are in prison.

[9] I quote this passage because Ms Maxwell-Scott for Mr Coleman submits it shows that the Judge was unaware that this was a second strike conviction and hence there would be no parole. In her submission, as I will come to, the Judge should have taken that into account when calculating the sentence.

The appeal

[10] The grounds for the appeal are:

(a) The starting point of five years and six months was too high.

(b) The Judge should not have considered Mr Coleman’s record as an

aggravating feature.

(c) A greater discount than three months for personal factors was necessary (which factors included remorse).

(d) The guilty plea discount should have been 25 per cent – particularly because the Judge had found Mr Coleman to be genuinely remorseful.

⁵ The Judge should, as per mandated practice, have applied first the three months’ reduction and

_{then the 20 per cent discount for early guilty plea. But nothing turns on it.}

⁶ R v Coleman, above n 1, at [19].

Discussion

[11] An appeal against sentence is an appeal by way of rehearing. I have to make my own assessment of the appropriate sentence. But I will only disturb Judge Dawson’s sentence if my assessment is so much lower than his that I must conclude that the sentence is manifestly excessive.⁷

[12] Since Judge Dawson did not articulate fully how he reached his end sentence, I will start afresh.⁸

[13] I look first at the factors relevant to the offending itself:

(a) The victim was vulnerable because of her borderline intellectual disability. I acknowledge that this is a factor that is inherent in the offence of exploitative sexual connection.⁹

(b) Mr Coleman took advantage of this vulnerability and dominated her.

She was a stranger to him, but he subjected her over a considerable period of time to a number of acts of penetrative sex which she did not really want. He caused her pain.

(c) The offending had a degree of grooming associated with it.

Mr Coleman took the victim to get alcohol and then took her to the place where the offending occurred and plied her with it.

(d) The offending was callous and solely for his own sexual gratification.

_{He ignored her attempts to get him to stop.}

⁷ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33], [35]; Ripia v R

_{[2011] NZCA 101 at [15].}

⁸ I do not criticise Judge Dawson. He gave a sentence indication to Mr Coleman and it was accepted. He did not need to go into a detailed analysis of the factors which led him to adopt his starting point because it had been accepted as proper.

⁹ R v Tapson [2008] NZCA 155.

[14] The Court of Appeal has made clear that sentencing in this area must be for the protection of the mentally impaired and the deterrence of those who take advantage of them.¹⁰

[15] In 2005, Parliament increased the maximum sentence for exploitative sexual connection from seven years’ imprisonment to 10 years’ imprisonment. There is no guideline judgment. There has been only a handful of High Court sentencing decisions since the increase in penalty.

[16] Four of the five decisions I have located indicate that, where the offending involves a degree of grooming coupled with multiple penetrative acts over a prolonged period causing serious harm to the victim, a start point of more than half the maximum, at least five to six years’ imprisonment is appropriate.¹¹

[17] There is one outlier, R v P,¹² in which the defendant penetrated his wife orally, digitally and with his penis in front of male friends. The wife was suffering from dementia at the time. The Judge adopted a start point of four years’ imprisonment. In my view that was too low. The offending involved a serious breach of trust of a person in the defendant’s care for the purposes of his own sexual gratification and in the presence of others.

[18] In my view, Mr Coleman’s offending is in the upper half of the sentencing

range. I would adopt a starting point of six years’ imprisonment.

[19] I come now to factors personal to Mr Coleman. The first is his criminal record.

[20] This Court has taken divergent approaches to uplifting sentences for previous convictions where the three-strikes regime is in play. Ms Maxwell-Scott relies on

_{the decision of Courtney J in R v Wereta}¹³ _{in which the Judge held that an uplift to}

¹⁰ _{R v Whittaker CA23/97, 27 August 1997 and R v Tapson, above n 9.}

¹¹ R v Wilson HC Hamilton CRI 2006-019-5529, 7 June 2007; R v Walters [2015] NZHC 3181; R v Bailey [2012] NZHC 1276 upheld on appeal in Bailey v R [2013] NZCA 495; R v Lindsay HC Auckland CRI-2009-055-2828.

¹² _{R v P HC Wanganui CRI-2007-083-186, 9 June 2008.}

¹³ R v Wereta [2014] NZHC 2555 at [12].

take into account previous convictions should not be imposed where a person is being sentenced on his or her second strike. The Judge reasoned that the three- strikes regime was intended to impose a deterrent effect through the removal of the parole entitlement for repeat offenders. Her Honour held that to uplift for previous offending (for the purposes of deterrence) would be double counting because it is the fact of those previous convictions that has resulted in the effect of the second strike warning.

[21] Justice Moore disagreed with Courtney J’s approach in Palalagi v Police.¹⁴

Justice Moore held that parole eligibility is a factor which Judges should not take into account in determining sentence length.¹⁵ Furthermore, Parliament clearly intended that the three-strikes regime would not influence the sentencing function and discretion of a Judge.¹⁶ Specifically, Moore J noted:¹⁷

(a) The three-strikes regime operates on the principle that parole is a privilege and not a right. Exempting repeat offenders caught by this regime from the usual uplift for past offending would be to treat them differently to other offenders who qualify for an uplift.

(b) There is nothing in the Sentencing Act 2002 to suggest that non- eligibility for parole was intended to affect the calculation of sentence length.

(c) Uplifting for previous offending does not amount to double counting as a second strike is premised on the fact that the offender is convicted of a serious violent offence for the second time. It does not take into account other previous offending.

(d) Exempting offenders from the uplift would create an arbitrary distinction which offends against the principle that sentencing should

_{be consistent and predictable.}

¹⁴ _{Palalagi v Police [2015] NZHC 1832.}

¹⁵ _{At [57], noting that this was consistent with Parole Act 2002, s 82 and 90.}

¹⁶ _{At [59].}

¹⁷ At [60].

[22] Justice Venning agreed with the approach taken by Moore J. In R v Wereta¹⁸

his Honour held:¹⁹

I do not consider the Court should be engaged in any enhanced totality discount to mitigate the effect of [Mr Wereta] being required to serve the sentence without parole. The Court must stand back and look at the issue of totality of the sentence without considering the implications of the second strike regime and its effect on parole eligibility.

[23] I agree with Venning and Moore JJ. I do not accept that a sentencing Judge should reduce what would otherwise be an appropriate sentence if the offender will have to serve the sentence without parole because of the three strikes legislation. In particular, I do not accept that a sentencing Judge would be double counting if he or she were to uplift the starting point because of the first strike conviction. Mr Coleman’s previous relevant convictions must result in an uplift. They were entered only the year before the current offending. Further, as the psychiatric report makes clear, Mr Coleman is a continuing risk to young women. The needs of deterrence, denunciation and protection of the public call for the uplift to be a real one. I would make it one year. That brings me to seven years.

[24] There is not much scope for reduction for personal factors. A 21 year old with Mr Coleman’s criminal record does not get a reduction for youth.²⁰ He will have had reductions for youth before. Nor do his psychological problems justify one. They go the other way.²¹ I would not find his letter sufficient evidence of remorse to justify a discrete discount, not given the pre-sentence report and the psychiatric report.²² But, the Judge gave three months and he had the opportunity to

_{observe Mr Coleman. I defer to his experience and allow three months also.}

¹⁸ _{R v Wereta [2015] NZHC 2683.}

¹⁹ _{At [22].}

²⁰ See, for example, R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA) at [65] where the Court indicated that a discount for youth may not be appropriate in circumstances where the young offender has a previous offending history.

²¹ The grounds upon which a discount can be given for mental health in sentencing are where the

offender’s mental health somehow reduces the offender’s culpability or makes a sentence of imprisonment more onerous: E(CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411 at [68]- [70].

²² The law does not provide that where remorse is genuine there must be a discount on sentence. It very much depends on the circumstances of the offending and the offender: Hessell v R [2010] NZSC 135, [2011 1 NZLR 607 at [63]–[64].

[25] I have no doubt that a 20 per cent reduction for the plea of guilty was appropriate. The plea was not entered at the first available opportunity. The Judge had indicated that a 20 per cent reduction would be given if the sentence indication was accepted, so there is no suggestion of surprise.

[26] This would result in an end sentence of five years and five months’

imprisonment.

Decision

[27] The sentence I assess as appropriate is five years five months’ imprisonment. Judge Dawson’s sentence was four years and two months. It follows that far from finding the Judge’s sentence to be manifestly excessive, I think it was too lenient. However, the Crown did not seek an increase and my hands are tied because Mr Coleman is not on notice of a possible increase.

_{[28] The appeal is dismissed.}

Brewer J