Cole v Cole - [2022] NZHC 3261

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000340

[2022] NZHC 3261

BETWEEN
DAVID CLINTON COLE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 November 2022

Appearances:

Michael Kan for the Appellant Milan Djurich for the Respondent

Judgment:

6 December 2022

JUDGMENT OF MOORE J

This judgment was delivered by me on 6 December 2022 at 3:30 pm.

Registrar / Deputy Registrar Date:

COLE v NEW ZEALAND POLICE [2022] NZHC 3261 [6 December 2022]

Introduction

[1] David Clinton Cole pleaded guilty to charges of burglary,1 unlawfully taking a bicycle2 and possessing a glass pipe for consuming methamphetamine.3 On 7 September 2022, Judge McDonald sentenced him at the Auckland District Court to 27 months’ imprisonment.4

[2] Mr Cole now appeals his sentence on the basis the starting point was too high, the Judge should have allowed a greater discount for his guilty pleas and should have allowed credit for remorse and addiction issues.

The facts

Unlawfully taking a bicycle

[3] Around 7:00 am on 8 May 2022, the owner of a black ICAN specialist cross gravel bicycle left it outside the Teed Street Larder Café in Newmarket, Auckland. The appellant rode past on an electric scooter he had hired. When he saw the ICAN was unsecured, he got off the scooter and stole the bicycle and the owner’s helmet. The ICAN is valued at $8,000.

Burglary

[4] On Saturday, 4 June 2022 Mr Gant and his family left their Mt Albert home for the Queen’s Birthday long weekend. At about 11:40 am on Monday, 6 June 2022, the appellant and an associate drove to Mr Gant’s home. They broke in and stole numerous items including tools, seven fishing rods, three passports and three firearms.

[5] Less than an hour later, at about 12:30 pm, the Police located the appellant and an associate in a vehicle at a petrol station at Te Atatu. They searched it. They found a substantial amount of the property stolen from the earlier burglary, but apparently not everything. Two high powered rifles and some tools were unaccounted for. Although

1      Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years’ imprisonment.
2      Section 226(1). Maximum penalty seven years’ imprisonment.
3      Misuse of Drugs Act 1975, s 13(1)(a) and (3). Maximum penalty one year’s imprisonment or a
$500 fine.
4      Police v Cole [2022] NZDC 17352.

the summary of facts and the Judge’s sentencing notes record the value of stolen property at around $10,000, an appendix to the summary itemising the stolen property records a total value around $16,000. Irrespective of the correct figure, the quantity and value of the goods stolen was substantial.

Possession of a glass pipe

[6]In the course of the search the police also found a glass methamphetamine pipe.

[7] To the Police, the appellant claimed that the house had already been ransacked before he entered and he simply went there and burgled it after the fact. He declined to comment about the ICAN.

District…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cole v Cole

Details

AGLC: Cole v Cole [2022] NZHC 3261
Case: [2022] NZHC 3261
Decision Date: 6 December 2022

CaseChat Overview and Summary

In the High Court of New Zealand, David Clinton Cole appealed against his sentence for burglary, unlawfully taking a bicycle, and possessing a glass pipe for consuming methamphetamine. Cole contended that the starting point for sentencing was too high, the Judge should have allowed a greater discount for his guilty pleas, and should have allowed credit for remorse and addiction issues. The central issue was whether the starting point and discount applied by the Judge were appropriate. The court found that the starting point was within the range available to the Judge. It was also found that the 20 per cent discount for guilty pleas was appropriate as the pleas were not entered at the first reasonable opportunity. Finally, the court held that there was insufficient evidence to justify a discount for addiction or remorse. The appeal was dismissed.

Orders