Cottle v Police [2018] NZHC 1928 (31 July 2018)

Last Updated: 7 September 2018

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2018-412-14 & 15 [2018] NZHC 1928

BETWEEN	WILLIAM HILLIS COTTLE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	30 July 2018
Appearances:	L A Andersen for Appellant R D Smith for Respondent
Judgment:	31 July 2018

JUDGMENT AND REASONS FOR JUDGMENT OF NICHOLAS DAVIDSON J

Judgment

[1] Judgment was delivered in Court on 31 July 2017. The Judgment is recorded in these Reasons for Judgment.

Introduction

[2] William Cottle was convicted on charges of intentional damage with reckless disregard for the safety of the victim, assault with intent to injure, wilful damage, and two charges each of possession of an offensive weapon and reckless driving. The District Court Judge sentenced Mr Cottle to two years and two months imprisonment.¹

¹ Police v Cottle [2018] NZDC 9685.

COTTLE v NEW ZEALAND POLICE [2018] NZHC 1928 [31 July 2018]

He appeals this sentence on the basis of an error was made in calculating the final sentence, and that the final sentence was manifestly excessive.

Facts

[3] At about 5:30pm on 6 July 2017, the 19-year-old appellant was driving his car along Glenelg Street in Dunedin when he saw someone who he believed owed him money driving towards him in a Hilux. He swerved across the centre line, causing the victim to take evasive action to avoid a collision, and narrowly avoided a collision with a parked car. The appellant made a U-turn and followed the victim to the motorway, where he passed his car and pulled just in front of him, causing him to brake heavily to avoid a nose to tail collision. He followed the victim to Mosgiel, where he stopped. The appellant stopped behind him, before driving into the Hilux with enough force to move it forward about a metre. He reversed and rammed into the Hilux twice more. The victim and an associate were still in the vehicle at the time. When they got out of the Hilux, uninjured, the appellant drove away. This resulted in one of the reckless driving charges.

[4] At about 10.30pm on 6 November 2017, the appellant was driving in the Dunedin CBD. He saw his ex-partner with a male associate in a car and became jealous, intentionally ramming the car from behind when stopped at a red traffic signal. He reversed before ramming into the car again, causing more damage to the rear bumper. The victims fled in the car to avoid being rammed again. This resulted in the second reckless driving charge.

[5] Later that evening, the appellant drove to his ex-partner’s house and sat outside watching the property. At about 1.00am, his ex-partner and the man she was with drove up to the house, to drop her off. As she got out of the car, the appellant walked towards the car with a large axe in one hand and a knife in the other. The male victim was sitting in the driver’s seat and locked the doors as he saw the appellant approaching, who went to the driver’s door and attempted to open it. When the door would not open, he raised the axe up above his head and used the cutting edge to smash through the driver’s side window. The male victim was showered in glass.
[6] He threw the axe on the ground, unlocked and opened the driver’s door. He started to punch the male victim to the back of his head with a closed fist. The victim attempted to get out of the car but was unable to as the appellant continued to punch him about the head and body approximately 15 times. He sustained bruising to his chest, arms, legs and a large lump to the back of his head as a result of the assault.

[7] As the appellant assaulted the male victim, the female victim picked up the discarded axe, to get it out of the confrontation. The appellant approached her asking for it back, but she refused. He then used his knife to cut the valve from a tyre.

[8] This third incident resulted in the charges of possessing offensive weapons, intentional damage with reckless disregard for the safety of the victim, assault with intent to injure and wilful damage. When spoken to by police, the appellant denied all accusations and said he believed he was still in a relationship with his ex-partner and the complaints were a conspiracy against him.

District Court sentencing

[9] The Judge took the charge of intentional damage with reckless disregard for the safety of the victim as the lead offence, but approached sentencing on the totality of conduct. He stressed the seriousness of the offending, particularly the premeditated nature of the final incident. Without referring to comparable cases, the Judge adopted an overall starting point of three years and three months imprisonment.

[10] While the appellant has one previous conviction for injuring in circumstances that if death had occurred it would have been manslaughter, the Judge made no uplift for it.

[11] In considering mitigating factors, the Judge acknowledged the successful restorative justice conference between the appellant and his ex-partner. While the appellant was willing to engage in a second conference with the principal victim, the victim was not. The pre-sentence report is largely negative, and while the appellant’s counsel criticised it, the Judge was still left with the impression that the appellant has little insight into his offending and any remorse he has is more by way of self-pity.
[12] The Judge considered the appellant’s youth (19), and positive character references. However, the Judge noted that only one of the references seems to have been written by someone who knew the extent of his offending. Finally, the Judge recognised that the appellant had been on electronically monitored bail for three months. For these mitigating factors, the Judge reduced the sentence by seven months to two years and eight months. The appellant entered guilty pleas relatively late in the process. The Judge reduced the sentence by a further seven months. By the Judge’s reasoning, the sentence should have been two years and one month imprisonment, but the Judge recorded the final sentence as two years and two months.

[13] The Judge imposed concurrent sentences of 12 months imprisonment for each charge of possession of offensive weapons and assault with intent to injure, and two months for each of the charges of reckless driving and wilful damage. He disqualified the appellant from holding or obtaining a driver’s licence for 12 months, and ordered reparation of $400 for repairs to the vehicle.

Principles on appeal

[14] Appeals against sentence are brought as of right by s 244 of the Criminal Procedure Act 2011 and determined under s 250 of the Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.² As the Court of Appeal said in Tutakangahau v R, “an appellate court will not intervene where the sentence is within the range that can be properly be justified by accepted sentencing principles”.³ It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by relevant sentencing principles.⁴

² Criminal Procedure Act 2011, ss 250(2) and 250(3).

³ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

⁴ Ripia v R [2011] NZCA 101 at [15].

Submissions

Appellant’s submissions

[15] Mr Andersen describes the offending as “the result of jealous rage by an immature 19 year old who could not handle another man being in the company of his former girlfriend”. He challenges the sentence on the basis of the miscalculation, that the starting point imposed was too high, and that the Judge gave insufficient credit for the appellant’s youth and guilty pleas. Mr Andersen submits that the sentence should be commuted to home detention.

[16] Adjusting the arithmetic, the sentence should have been one of two years and one month, not two years and two months.

[17] Counsel submits that the Judge failed to refer to any relevant case law to ensure an appropriate and consistent starting point was adopted, but by reference to similar cases,⁵ Mr Andersen submits that a starting point of no more than two years and six months imprisonment would have been appropriate.

[18] The Judge allowed a total discount of 18 per cent for mitigating factors, an effective discount of 4.5 per cent for each mitigating factor. Counsel submits that was appropriate for all the factors except the appellant’s youth, which justified a discount in the range of 10 per cent, and particularly so given the appellant had only previously been subject to a sentence of community work. While the Judge was critical of the late stage at which the appellant entered the guilty pleas, counsel submits that this does not recognise that a not guilty plea is required to obtain discovery necessary to advise a client. The pleas came after successful negotiations to alter the original charges. Mr Andersen thus submits that the appellant was entitled to full credit for his guilty pleas.

[19] Finally, counsel stresses s 8(g) of the Sentencing Act 2002, which provides that the Court must impose the least restrictive outcome that is appropriate in the

5. Howard v R [2017] NZHC 2986; Nilsson v Police HC Rotorua CRI-2010-470-1, 8 February 2010; and Mitchell v R [2013] NZCA 583, (2013) 29 FRNZ 498.

circumstances. Given the appellant’s youth and minimal criminal history, home detention is submitted appropriate.⁶

Respondent’s submissions

[20] Counsel for the Crown, Mr Smith, at first submitted that the starting point and credits given were within the available range, and the end sentence could not be described as manifestly excessive, however, the Court could correct the arithmetical error and substitute the sentence with one of two years and one month imprisonment.

[21] Mr Smith distinguishes each of the cases cited by counsel for the appellant on their facts. Notably, all three cases cited involved a singular incident, whereas this offending involved separate incidents. Counsel mentions other similar cases with starting points of over three years.⁷

[22] In stressing the seriousness of the final incident, counsel refers to the fact that the appellant lay in wait for the victims, and there was a real risk of serious injuries or death to the victim. The assault with intent to injure was prolonged and involved a violent attack to the head. Counsel suggests that a starting point of up to three years was available for this offending alone. Additionally, there were two separate and particularly bad examples of reckless driving, involving ramming of cars. Counsel submits that an uplift of three months on each charge would be within range. As such, the starting point of three years and three months imprisonment was available. I agree.

[23] Counsel submits that the Judge could have made a separate uplift to reflect the appellant’s previous conviction, as the sentence of community work for violent offending had not deterred him. Particularly in light of the Judge’s decision not to do so, His Honour’s credit for the appellant’s mitigating factors was “perfectly within range”.

6. Counsel submitted that home detention should be considered “even if the end result is 2 years and 1 month”. This is not possible as s 15A(1)(b) of the Sending Act provides that home detention can only be imposed if the court would otherwise sentence the offender to a short-term sentence of imprisonment.
7. Hollingum v Police [2013] NZHC 3235; R v Gray [2008] NZCA 311; and R v Shirley [2009] NZCA 216.

[24] Regarding the discount for the guilty pleas, counsel says the discount given again was well within range given the delay in entering guilty pleas. The case against the appellant was overwhelming and any alteration to the charges was to his benefit. Mr Smith submits that allowing full credit would have resulted in an unjustified outcome.

[25] As such, counsel submits the end sentence of two years and one month imprisonment was within range.

[26] If the Court takes the view that a short-term sentence would be appropriate, counsel submits that only a sentence of imprisonment could realistically be imposed given the Provision of Advice to Courts report and the recommendation of imprisonment. Protection of the community, deterrence and denunciation were primary sentencing purposes, and imprisonment is the least restrictive sentence appropriate in the circumstances.

Analysis

[27] Mr Andersen referred to Nilsson v Police as a comparator for setting the starting point, and counsel for the respondent agreed that it bore the closest similarity to the situation at hand.⁸ In that case, a starting point of two years and three months imprisonment was upheld where Mr Nilsson had carried out a random unprovoked attack. He pulled up to a vehicle on the side of the road, taking a jack handle and breaking the driver’s window. He then repeatedly struck the victim about the head and body with the jack handle. When the victim tried to move away from the appellant to the passenger’s seat, he leaned in the window and continued the assault. He then moved to the other side of the vehicle, continuing to strike the victim. The assault only ceased when the victim wrestled Mr Nilsson to the ground.

[28] This is a similar situation, however, the offending here was premeditated and I agree with Mr Smith that this aggravates the offending. The cases Mr Smith referred to with starting points over three years all involved home invasion, but Mr Smith submits they are still relevant as the victims locked themselves in their car outside the

⁸ Nilsson v Police, above n 5.

female victim’s home. The assault in the present case was more substantial than in the cases cited.

[29] An assault in a car does not equate with a home invasion but it may have some of its features. It seems appropriate to begin with two years and three months, as imposed in Nilsson, but uplift it to reflect the premeditation and additional use of the knife. To reflect the totality of the offending, including the two serious instances of reckless driving, a more appropriate starting point would be one of three years imprisonment.

[30] The discount of seven months for mitigating factors given by the Judge appears appropriate. His Honour’s reasoning on mitigating factors was sound. Given the appellant’s prior violence conviction, further discount for his youth would be inappropriate.

[31] The Judge allowed a further discount of seven months for his guilty pleas. That cannot be faulted, given the lateness of the pleas and the fact that the appellant already benefitted from the charges being altered. Following that reasoning, that would bring the sentence down to 22 months.

[32] Given the appellant’s age and the provisions of s 16 of the Sentencing Act, commuting the sentence to home detention is in my view appropriate. Mr Smith does not oppose this but suggested conditions which I have adopted. His previous conviction for violence is of concern but he has only had a sentence of community work imposed on him. It would be appropriate to give him an opportunity to serve his sentence in the community. The sentence should be commuted to eight months home detention but on terms. His parents will support him and were in Court. While there were initially concerns about the proximity of the Mosgiel address to the victims of the offending, after the restorative justice conference these concerns seem to be resolved.

Conclusion and Disposition

[33] The sentence imposed was not the least restrictive sentence available and the desirability of keeping offenders in the community is recognised by s 16 of the
Sentencing Act. The purposes of sentencing are met by home detention. The appeal is allowed and the sentence of two years two months imprisonment is replaced with one of eight months home detention and 200 hours community work. I have given thought to Mr Smith’s suggestion of judicial monitoring and there is purpose in this to understand whether Mr Cottle will respond to the sentence imposed.


[34] Mr Cottle is sentenced to eight months home detention at 156 Dukes Road South, Mosgiel, to commence from the date of this judgment. There is no credit for time served under sentence.

[35] The conditions of home detention are that he is:

(a) Not to possess, consume or use any alcohol or drugs not prescribed to him.

(b) To attend an assessment for the departmental short rehabilitation programmes as directed by a Probation Officer. To attend and complete any counselling treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.

(c) To attend an assessment for any other programme, treatment, counselling as directed by a Probation Officer. To attend and complete any counselling, treatment, or programme as recommended by the assessment and as directed by and to the satisfaction of a Probation Officer.

(d) Not to associate with or contact the victims of his offending without the prior written approval of a Probation Officer.

(e) To attend and complete an appropriate alcohol and drug programme to the satisfaction of a Probation officer. The specific details of the appropriate programme shall be determined by a Probation Officer.
(f) To comply with the requirements of judicial monitoring as directed by a Probation Officer or the Sentencing Judge. The Probation Officer must prepare and provide to the Judge a progress report before 31 October 2018 by submitting the report to the Dunedin District Court. If directed, you must appear before the Presiding Judge regarding these reports on dates directed by the Dunedin District Court.

(g) Conditions (b) – (e) are post detention conditions.

(h) Judicial monitoring is directed under s 80D, 80ZJ and 80ZK of the Sentencing Act, on the terms in Condition (f) above.

.....................................................

Nicholas Davidson J

Solicitors:

RPB Law, Dunedin Downie Stewart, Dunedin

L A Andersen, Barrister, Dunedin