Coffin v The King
[2024] NZHC 2272
•13 August 2024
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2024-412-25
CRI-2024-412-26 [2024] NZHC 2272
BETWEEN ELLERY CHARLES COFFIN
Appellant
AND
THE KING
Respondent
Hearing: 12 August 2024 Appearances:
A M Dawson for Appellant
M E A Brosnan for Respondent
Judgment:
13 August 2024
Reissued:
3 September 2024
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 13 August 2024 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
COFFIN v R [2024] NZHC 2272 [13 August 2024]
Introduction
[1] Ellery Coffin pleaded guilty to a charge of injuring with intent to injure,1 possession of methamphetamine,2 and possession of cannabis.3 On 13 May 2024 he was sentenced by Judge Turner to two years and two months’ imprisonment. Mr Coffin now appeals his sentence on the basis it is manifestly excessive.
Alleged offending
Injuring with intent
[2] The victim of the offending is known to both Mr Coffin and his co-defendant. On 9 May 2023, the victim was at the home of a mutual friend in Dunedin. By chance, the defendants arrived at the address where they met up with the victim. An argument developed between the victim and Mr Coffin over a recent incident involving Mr Coffin’s car being taken and damaged.
[3] The verbal altercation became physical when Mr Coffin punched the victim. This caused the victim to drop, but he tried to fight back, at which point the second defendant joined in. Both attacked the victim, kicking and punching him. The victim’s face, chest, and stomach were targeted. The victim was dragged into the bedroom and thrown onto the bed where the attack continued. At one point, while Mr Coffin was punching the victim, the victim said he felt his right eye “pop”.
[4] After this attack, which lasted several minutes, the victim was dragged into the lounge and continued to be hit. Ultimately, the attack came to an end when the co-defendant pulled Mr Coffin off the victim. The victim was the given a cigarette and told to clean himself up, but the defendants said they would be back. They then left the address.
[5] The victim sustained a broken eye socket, severely bruised eyes, bruising to his arms and legs and superficial marks to his right shoulder.
1 Crimes Act 1961, s 189(2). Maximum penalty: five years’ imprisonment.
2 Misuse of Drugs Act 1975, s 7(1) and (2). Maximum penalty: six months’ imprisonment.
3 Misuse of Drugs Act 1975, s 7(1) and (2). Maximum penalty: three months’ imprisonment.
Possession of drugs
[6] Three days later, when police came to speak to Mr Coffin, he was located in a car. Police saw a methamphetamine pipe in the vehicle and invoked their powers of search under the Search and Surveillance Act 2012. 0.8 of a gram of methamphetamine was found in a container in the centre console along with six grams of cannabis leaf. Other drug paraphernalia was also found.
Sentencing decision
[7] The Judge referred to Mr Coffin’s cultural report which outlined Mr Coffin’s exposure to family violence as a child, and other abuse. The Judge noted Mr Coffin suffers from mental health issues and depression in particular. ADHD has not formally been diagnosed, but Mr Coffin was, at some point, on medication for that condition. The Judge said Mr Coffin’s drug use started at an early stage but that he addressed that successfully, and drug use did not feature in this offending.
[8] The Judge considered the aggravating factors of the offending included: multiple attackers, an attack to the head, injuries were sustained, and there was an element of victim vulnerability. In particular, the Judge said the victim was not expecting to be attacked and the attack was sudden. The Judge considered the attack was impulsive and started by Mr Coffin. The Judge also found that the defendants telling the victim they “would be back” was an implicit threat.
[9] In addressing the starting point, the Judge did not consider there was extreme violence and placed the offending between bands two and three (referring to Nuku v R4). The Judge considered the offending contained a mixture of factors present in McLaren v R (starting point of three years and three months) and O’Docherty v Police (starting point of two years and six months).5 The Judge considered Mr Coffin had a higher level of culpability than his co-defendant. In the circumstances, the Judge held a starting point of two years and eight months’ imprisonment was appropriate.
4 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
5 McLaren v R [2014] NZHC 3274; and O’Docharty v Police [2014] NZHC 2312.
[10] The Judge added one month for the drug charges. An additional uplift of 10 per cent was applied for prior offending and offending while on sentence. The Judge allowed 20 per cent credit for Mr Coffin’s guilty pleas, and 10 per cent for his rehabilitative efforts. This made an end sentence of two years and two months’ imprisonment.
Law on appeal
[11] This Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.6 Otherwise, the Court must dismiss the appeal.7
[12] The sentence must be manifestly excessive before the appeal Court may substitute its own views as to the appropriate sentence. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.8 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.9
Submissions
Appellant’s submissions
[13] Mr Dawson submits the end sentence was manifestly excessive saying the starting point should have been no more than two years and six months’ imprisonment for the lead offence, no uplift was required for the drug offending charges, and a total uplift of five per cent was sufficient for aggravating features.
Respondent’s submissions
[14] Ms Brosnan submits the starting point adopted for the lead charge was within the appropriate range, the uplifts adopted for the lesser charges and to reflect the
6 Criminal Procedure Act 2011, s 250(2).
7 Section 250(3).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].
9 Ripia v R [2011] NZCA 101 at [15].
aggravating features were also appropriate, and the personal credits adopted might be considered generous and ultimately led to an end sentence which was not manifestly excessive.
Discussion
Starting point
[15] In Nuku, the Court of Appeal provided guidance on how R v Taueki10 should be adapted and applied where the offending involves injuring with intent. The Court determined there were three appropriate bands in relation to this sort of offending, with a combination of aggravating features leading to an offender being placed in the higher bands. Band two attracts a starting point of up to three years’ imprisonment, while band three attracts a sentence of two years up to the statutory maximum. In this case, the Judge placed Mr Coffin’s offending between bands two and three on the basis there were three aggravating factors (multiple attackers, injuries, victim vulnerability) present to the moderate degree, and one aggravating factor (attack to the head) present to a significant degree.
[16] Mr Dawson submits the offending should be seen as falling closer to band two than three given the number and intensity of the factors. In relation to the ‘multiple offenders’ point, he says there were only two attackers, which is the least number possible to engage that factor, meaning it should be considered as a minor aggravating factor rather than a moderate one. Conversely, Ms Brosnan submits the degree of violence administered by the two attackers elevates this feature to a moderate level.
[17] Mr Coffin was clearly the principal offender, instigating the attack and needing to be pulled off the victim by his co-offender to end the incident. The attack came as a complete surprise to the victim and lasted several minutes, during which time the victim sustained a broken eye socket which I consider to be a serious injury. An attack by two offenders is certainly less serious than a large group. However, the facts describe the victim being dragged between rooms and punched and kicked, which
10 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.
indicates he was overwhelmed by the two offenders and at their mercy. I therefore consider the factor of an attack by two offenders was a moderately aggravating factor and the Judge did not err in categorising it as such.
[18] In comparing this case with O’Docherty, I consider it was open to the Judge to assess Mr Coffin’s offending as more serious than that in O’Docherty, albeit by a small margin. While O’Docherty involved the offenders forcing their way into the victim’s home, indicating a level of pre-meditation and automatically elevating the seriousness of the offending, the duration of the attack, the degree of violence involved and the injuries sustained were all less than in this case. Furthermore, Mr O’Docherty was not the principal offender, as Mr Coffin was in this case.
[19] Recognising that some leeway should be afforded to the sentencing Judge when assessing the seriousness of the offending and being satisfied the offending sits towards the upper end of band two, a starting point of two years and eight months was within the available range.
Uplift for other charges
[20] In addition to injuring with intent, Mr Coffin was charged with possession of methamphetamine and cannabis. While Mr Dawson submitted that this offending, on its own, would not have attracted a prison sentence, I note it is still additional offending which warranted some further sanction to reflect the principles of denunciation and deterrence. These offences attract a maximum penalty of six months and three months’ imprisonment respectively so I do not consider the Judge erred in applying a one-month uplift to reflect these charges.
Uplift for personal aggravating factors
[21] Mr Dawson submits Mr Coffin was towards the end of the period covered by release conditions and that, until this incident, there had not been any other offending since his release from prison. He further submits, but for the issue regarding Mr Coffin’s vehicle being damaged which seems to be the genesis of the incident, there is nothing to suggest Mr Coffin would have offended.
[22] Whilst I accept Mr Coffin has otherwise complied with his release conditions, I do not consider the significance of breaching conditions should be downplayed because the period was almost over. Furthermore, the conditions were implemented following a conviction for similar violent offending, being wounding with intent. Contrary to Mr Dawson’s submission, this tends to indicate the release conditions have not achieved their purpose. The Judge did not err in considering an uplift of five per cent was warranted.
[23] As to Mr Coffin’s previous convictions, Mr Dawson submitted it is only recently that Mr Coffin has been convicted of violent offending, and correctly says his history cannot be categorised as extensive. However, I consider the fact Mr Coffin’s more recent convictions have been for violence, which was significant enough in both cases to attract a prison sentence, does indicate an escalation in violent offending, which was appropriately reflected in a five per cent uplift.
[24] Finally, Mr Dawson pointed out that while the adjustments he sought were not significant, they did not amount to mere tinkering with the sentence, particularly when the practical consequences for Mr Coffin were considered. As he has served a year in prison he would be eligible for immediate release if the sentence was reduced to under two years. However, as matters currently stand, he will not be before the Parole Board again until late this year.
[25] I accept that is the practical reality. However, I can only allow an appeal against sentence if there has been an error in the sentence rendering the end sentence manifestly excessive. I have not found that to be the case there.
Result
[26]The appeal is dismissed.
Solicitors:
Public Defence Service, Dunedin Crown Solicitor, Christchurch
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