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High Court of New Zealand |
Last Updated: 3 July 2018
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IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
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CRI-2018-463-000028/29
[2018] NZHC 1405 |
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BETWEEN
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JARED SHAINE COLE
Appellant
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AND
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THE QUEEN
Respondent
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Hearing:
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12 June 2018
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Appearances:
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N Dutch for the Appellant
S J P Davison and E F Collis for the Respondent
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Judgment:
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13 June 2018
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JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 13 June 2018 at 3.00pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:..............................
Solicitors/counsel:
Webby & Associates, Tauranga Crown Solicitor, Tauranga
COLE v R [2018] NZHC 1405 [13 June 2018]
Introduction
[1] The appellant, Jared Cole, has pleaded guilty to a range of offences. Details are as follows:
(a) Offending on 28/29 September 2017:
(i) Breach of supervision order;1 and
(ii) Breach of a community work order.2
(b) Offending on 17 November 2017:
(i) Driving whilst disqualified (third or subsequent offence);3 and
(ii) Providing false details.4
(c) Offending on 19 November 2017:
(i) Driving whilst disqualified (third or subsequent offence);5 and
(ii) Providing false details.6
(d) Offending on 22 November 2017:
(i) Driving whilst disqualified (third or subsequent offence);7
(ii) Providing false details;8
4 Land Transport Act, s 44(1). The maximum penalty is a fine not exceeding $10,000.
5 Section 32(1)(a).
6 Section 44(1).
7 Section 32(1)(a).
8 Section 44(1).
(iii) Dangerous driving;9 and
(iv) Failing to stop.10
(e) Offending on 28 November 2017:
(i) Possession of methamphetamine for supply.11
[2] Guilty pleas were entered on 23 January 2018 in relation to the offending which took place on 28/29 September 2017. Mr Cole made his first appearance in Court on 29 November 2017 in relation to the offending on the previous day – 28 November 2017. A guilty plea was then entered in relation to that charge. Guilty pleas were also entered on 23 January 2018 in relation to all of the remaining charges.
[3] On 12 March 2018, Mr Cole appeared before Judge Mabey QC in the Tauranga District Court for sentencing. An end sentence of four years and two months’ imprisonment was imposed by the Court, together with 12 months’ disqualification from driving, to be followed by a further six months disqualification, beginning on 12 March 2019.12
[4] Mr Cole appeals his end sentence, arguing that it was manifestly excessive, that the starting point adopted by Judge Mabey, in particular in relation to the drug related offending, was too high, and that the Judge did not properly discount for totality.
Factual background
[5] The charges to which Mr Cole has pleaded guilty arise out of a number of separate events. I deal with them under two headings.
10 Land Transport Act, s 52A(1)(a)(ii). The maximum penalty is a fine not exceeding $10,000.
11 Misuse of Drugs Act 1975, s 6(1)(f). The maximum penalty is life imprisonment.
12 R v Cole [2018] NZDC 4731 at [32].
The possession of methamphetamine
[6] On 28 November 2017, the police responded to a suspicious activity incident outside a restaurant in Dominion Road, Mt Eden, Auckland. On arrival, the police found a Honda vehicle with two occupants inside. The occupants were spoken to. They were told that the vehicle was going to be searched. At this point, Mr Cole leapt out the front passenger’s seat of the vehicle and ran off. He was quickly apprehended. As Mr Cole was being detained, he dropped three small plastic containers. He also attempted to throw away his mobile phone. The three plastic containers were subsequently found to contain 49 grams of methamphetamine.
Driving related charges
[7] On 10 November 2016, Mr Cole was disqualified from driving any motor vehicle for one year commencing on 18 February 2017.
[8] Notwithstanding this disqualification:
(a) At about 10:35 pm on 17 November 2017, Mr Cole was driving a motor vehicle east on Marlin Street, Mount Maunganui. He was stopped at a police checkpoint. When he was required by police officers to provide his personal details, he gave false information;
(b) Two days later, at about 11:30 pm, Mr Cole was driving a motor vehicle east on Eleventh Avenue, Tauranga. He was stopped at a routine traffic stop. When asked by a police officer to provide his personal details,
Mr Cole again gave false information; and
(c) Three days later, on 22 November 2017, at about 9:30 am, Mr Cole was driving a motorcycle south on Hewlett’s Road, Mount Maunganui. When he stopped at a red light, officers in a marked police patrol vehicle noticed that the motorcycle was not displaying registration plates. The police officers activated the red and blue lights and the siren on the police vehicle. Mr Cole did not stop. Rather, he accelerated to approximately 100 km/h in a 70 km/h posted zone and fled from the
police. He rode through red traffic signals, and swerved in and out of the traffic at various points. Eventually, Mr Cole lost control of the motorcycle and crashed into a barrier. The police provided roadside first aid to Mr Cole. He was asked for his personal details. Yet again, he gave false information to the police. He repeated these false details when he was asked for his personal information by a police officer a short time later when he was being put in an ambulance which attended the scene of the crash.
District Court decision
[9] Judge Mabey took as the lead offence the offence of being in possession of methamphetamine for supply.13 He noted that R v Fatu14 is the leading tariff case in relation to sentencing for such offending. He placed Mr Cole’s offending within band two identified in Fatu, and adopted a starting point in relation to the methamphetamine charge of four years and six months’ imprisonment.15
[10] The Judge then turned to the three charges of driving whilst disqualified. He referred16 to Apiata v Police17 and Whitley v Police.18 He adopted the approach suggested in those cases and took a starting point of 18 months’ imprisonment for the three charges of driving whilst disqualified at issue in this appeal.19 This was cumulative to the methamphetamine related offending.
[11] The Judge then dealt with the charge of dangerous driving. He considered that it was appropriate to impose a cumulative sentence for this offence, but he achieved this by increasing his starting point for the driving whilst disqualified charges by one month to allow for this additional offending.20
13 R v Cole, above n 12.
14 R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).
15 At [10].
16 At [11].
17 Apiata v Police [2016] NZHC 3119.
18 Whitley v Police [2016] NZHC 1025.
19 At [14].
20 At [15].
[12] In dealing with the associated offending of failing to stop and giving false details, Judge Mabey noted that these were fine-only offences.21 He considered that the mandatory statutory disqualification of six months for the offence of failing to stop was appropriate to deal with all of these charges.22
[13] Judge Mabey then dealt with the charges of breach of a community work order and breach of supervision order. He dealt with them cumulatively,23 but he did not discretely identify what starting point he considered was appropriate for this offending.
[14] Adding the various identified starting points together, Judge Mabey reached an overall starting point of six years and one month’s imprisonment.24 The Judge then reduced this starting point by six months to account for totality.25 He did this by reducing the starting point for the driving whilst disqualified charges by six months to twelve months’ imprisonment.26 He then applied a four-month discount for remorse to the starting point adopted for the methamphetamine offending.27 The Judge then gave Mr Cole a 25 per cent discount for his guilty pleas. He applied this discount separately to the methamphetamine offending and the driving whilst disqualified offending.
[15] The end sentences reached were:
(a) three years and two months’ imprisonment in respect of the methamphetamine offending;28
(b) a cumulative sentence of nine months’ imprisonment for the driving whilst disqualified offending.29
21 At [16].
22 At [16].
23 At [17].
25 At [19].
26 At [19].
27 At [22].
28 At [22].
29 At [23].
The Judge then imposed a cumulative term of one month for the dangerous driving charge, as well as two separate cumulative sentences of one month each for the charges of breach of a community work order and breach of supervision order.30
[16] The total end sentence was accordingly four years and two months’ imprisonment.31 The Judge convicted and discharged Mr Cole in relation to the charges of providing false details.32
[17] Lastly, Judge Mabey disqualified Mr Cole from holding or obtaining a driver’s licence for 12 months from the date of sentence, and another six months starting on
12 March 2019.33 The additional and cumulative period of six months’
disqualification was for the charge of failing to stop.
Approach on appeal
[18] Section 250(2) of the Criminal Procedure Act 2011 provides:
(2) The first appeal court must allow the appeal if satisfied that—
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[19] In any other case, the court must dismiss the appeal.34 A sentence may be set aside where it is manifestly excessive.35 Whether a sentence is manifestly excessive depends on the end sentence, not the process by which the sentence was reached. The court will not intervene where the sentence is within range. But, if the court determines the sentence is manifestly excessive, it will form its own view of the appropriate sentence.36
30 At [24]-[25].
31 At [32].
32 At [28].
33 At [32].
34 Criminal Procedure Act 2011, s 250(3).
35 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].
36 Tutakangahau v R, above n 35, at [30].
Analysis
[20] Both counsel submitted that Judge Mabey’s approach is confused and difficult to follow.
[21] I agree. It is unusual to discount only part of an overall sentence to recognise the totality principle, and further to discount the starting points for individual charges to recognise guilty pleas. In my judgment, it would have been preferable if the Judge had aggregated his starting points, and then discounted from the total sentence reached to recognise the totality principle and to allow discounts for remorse and the guilty pleas. However, as I have noted above, it is the end sentence which is in issue and not the process by which it was reached. I turn to consider that question.
[22] Counsel were agreed that the lead charge was the charge of being in possession of methamphetamine for supply.
[23] Judge Mabey approached the sentencing on this basis and he referred to the decision of the Court of Appeal in R v Fatu. He was clearly correct to do so. That decision is the leading tariff case for such offending.
[24] Mr Cole was found with 49 grams of methamphetamine in his possession. His offending falls within band two of Fatu – 5 grams to 250 grams – which attracts a starting point of between three years to nine years’ imprisonment.37 Judge Mabey so found.
[25] Mr Dutch, appearing for Mr Cole, accepted that, if a purely mathematical approach is taken, the weight of methamphetamine found in Mr Cole’s possession would point to an appropriate starting point of approximately four years. He pointed out, however that, in this case, there was no actual dealing and no evidence of any previous sale or proposed offer to supply. He noted that Mr Cole acknowledged to the interviewer who prepared the pre-sentence report that he was intending to sell the methamphetamine in his possession to raise some “fast cash”, because he and his former partner had broken up, and their children had been placed in the care of his
37 R v Fatu, above n 14, at [34](b).
brother. Mr Cole thought that his brother could not afford to look after the children for much longer and that unless money was found quickly, the children might have to go into a foster home with strangers. Mr Dutch submitted that in these circumstances, where there was no evidence of past dealing, the appropriate starting point was in the vicinity of three years and six months’ imprisonment.38
[26] The Crown, on the other hand, submitted that the starting point was appropriate. Mr Davison, for the Crown, referred to a previous decision of this Court where a starting point of five years’ imprisonment was adopted in relation to possession of “at least 50 grams [of methamphetamine] for supply”.39 He also referred to other decisions where starting points of four years’ imprisonment were adopted for broadly similar quantities of methamphetamine.40
[27] Possession for supply is not generally treated as seriously as actual supply. I accept that there was no evidence that Mr Cole had previously supplied methamphetamine. I have noted above comments attributed to Mr Cole in the pre- sentence report. I note, however, that when he was arrested, Mr Cole did not make any comment to the police, and he pleaded guilty to the summary of facts which did not contain any acknowledgment by him of his intention to sell. He is entitled to be sentenced by reference to that summary. I also observe that the amount found in the containers in Mr Cole’s possession was well above the statutory threshold for presumed supply,41 and note that Mr Cole tried to get rid of his cellphone. There is, however, nothing to suggest that that cellphone had anything incriminating on it. It was not analysed by the police.
[28] In my judgment, the starting point adopted was, in the circumstances of this case, on the high side. There was nothing to indicate prior drug dealing. A starting point in the vicinity of three years and nine months’ imprisonment seems to me more appropriate and more in line with similar cases.
38 By reference to R v Gallie HC Auckland CRI-2010-044-514, 20 September 2011; R v Kaihau
39 R v Gallie, above n 38.
41 Misuse of Drugs Act, sch 5, cl 1.
[29] I now turn to consider the other charges.
[30] Mr Dutch accepted that there needs to be an uplift in respect of the three charges of driving whilst disqualified. He also accepted that there is an aggravating feature to these charges – namely recidivism. He did not take issue with the additional cumulative sentence of one month for dangerous driving. He did, however, submit that a one month uplift for all three additional charges (dangerous driving and breach of the Court orders) was appropriate. Mr Dutch submitted that an uplift of no more than 13 months’ imprisonment was appropriate for all additional charges.
[31] Mr Davison argued that the sentences for the additional offending imposed by Judge Mabey were appropriate. He noted that the Judge discounted his initial starting point for the driving whilst qualified charges to take into account totality, and that the sentence of 12 months’ imprisonment for the driving whilst disqualified charges could be considered modest.
[32] Mr Dutch’s argument is premised on the assumption that concurrent sentences of imprisonment are appropriate for all of the additional offending. Judge Mabey did not adopt that approach, and I do not consider that concurrent sentences were appropriate. Cumulative sentences are generally appropriate if the offences for which the offender is being sentenced are different in kind, whether or not they are a connected series of offences.42
[33] In relation to the charges of driving whilst disqualified, Judge Mabey treated all of this offending on a concurrent basis and adopted a starting point of 18 months’ imprisonment, cumulative on the sentence for the drugs related offending.
[34] The driving whilst disqualified charges were the same, and they occurred within a few days of each other. I accept that they could be dealt with on a concurrent basis as between themselves. They were, however, separate from the drug related offending. In my view, Judge Mabey approached this issue correctly.
42 Sentencing Act, s 84(1).
[35] Mr Cole was a recidivist offender in this regard. He has eight previous convictions for driving whilst disqualified between 2009 and 2016. Previous offending is an element of the offence of driving whilst disqualified (third or subsequent offence), but it is also relevant to sentencing. The decided cases43 reveal that starting points of between 10 and 17 months’ imprisonment have been adopted in those situations where the offenders had six or so previous convictions for driving whilst disqualified.44 In one case – a lower starting point was adopted, but this starting point was then uplifted to account for the offender’s past history.45 Sentences of 18 to 20 months’ imprisonment have been adopted in cases where the offenders have had between nine and 10 previous convictions for driving whilst disqualified.46
[36] In my judgment, Judge Mabey’s initial starting point of 18 months’ imprisonment for this offending was within range and appropriate.
[37] I am also satisfied that cumulative sentences were appropriate for each of the charges of dangerous driving, breach of a community work order and breach of supervision order. They were each different in kind. Arguably, the dangerous driving charge was connected with the relevant driving whilst disqualified charge, but it was separate offending, not necessitated by that charge. The sentences imposed by Judge Mabey of one month’s imprisonment for each charge are appropriate.
[38] Judge Mabey allowed Mr Cole a discount of four months, to reflect remorse and prospects for rehabilitation. The Judge was sceptical, but he nevertheless allowed the discount. He took into account that Mr Cole has had no serious involvement with drugs in the past; he was prepared to accept that Mr Cole may be showing signs of genuine remorse, and that he may have an intention to rehabilitate.
[39] Neither side took issue with the Judge’s assessment. I do not consider it appropriate to reopen it.
43 Whitley v Police, above n 18; Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009; Koopu v Police [2013] NZHC 1356; Affleck v Police [2017] NZHC 3220; Keenan v Police [2014] NZHC 1894; Morrell v Police [2014] NZHC 856.
44 See, for example, Koopu v Police, above n 43.
45 Peterson v Police, above n 43.
46 Affleck v Police, above n 43; Keenan v Police, above n 43; Morrell v Police, above n 43.
[40] It was argued that Judge Mabey erred in not properly discounting for totality. The Judge clearly did discount for totality. He discounted his starting point for the driving whilst disqualified charges. Applying a discount for totality to discrete charges was unusual, but I am not persuaded that it has resulted in distinct error.
[41] Nor was it disputed that Mr Cole was entitled to a 25 per cent discount for his guilty pleas, which were all entered at a relatively early stage.
[42] Adopting my approach to sentencing, I assess the appropriate sentence as follows:
(a) three years and nine months’ imprisonment for the charge of being in possession of methamphetamine for supply;
(b) 18 months’ imprisonment for the driving whilst disqualified charges – dealt with on a concurrent basis as between themselves – but on a cumulative basis to the sentence for being in possession of methamphetamine for supply;
(c) one month’s imprisonment, on a cumulative basis, for the charge of breach of a community work order;
(d) one month’s imprisonment, also on a cumulative basis, for the charge of breach of supervision order;
(e) one month’s imprisonment for the charge of dangerous driving, also on a cumulative basis.
[43] This takes my total starting point to one of 66 months’ imprisonment. I do not consider that any adjustment is required to take into account the totality of the offending. The totality principle remains relevant even though in large part I have treated the offending on a cumulative basis. I do not, however, consider that the principle is engaged in this case. I allow Mr Cole a discount of four months from this starting point, to recognise remorse and the prospect of rehabilitation, and a further discount of 15.5 months (25 per cent) to recognise his early guilty pleas.
[44] The appropriate end sentence is, in my judgment, one of three years, 10 months and two weeks’ imprisonment.
[45] Accordingly, I conclude that the sentence imposed by Judge Mabey was manifestly excessive. I allow the appeal, and set aside the sentence of imprisonment imposed by Judge Mabey. I impose a sentence of three years, 10 months and two weeks’ imprisonment.
[46] There was no challenge to the disqualification sentences. They are to remain in place. Nor was there any challenge to the convictions and discharges imposed by the Judge in relation to the charges of providing false details. These orders are also to remain in place.
Wylie J
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