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 Court decision

[8]    After recounting the facts, the Judge acknowledged the usual purposes and principles of sentencing, in particular that he was obliged to impose the least restrictive sentence.

[9]    He took the burglary charge as the lead charge. He noted there was no tariff judgment for burglary but referred to Arahanga v R, where the Court of Appeal held a relatively minor home burglary would attract a starting point of 18 to 30 months.5 The Judge noted home burglaries always presented a danger of confrontation with the homeowner or a neighbour and that the appellant and his associate took a large number of items. The Judge considered there was premeditation in that the two had driven around looking for a suitable target. He noted two of the three firearms had not been recovered and that, in relation to the rest of the property, “it matters little that some of [it] was recovered.”

[10]   Noting Mr Kan’s submissions for Mr Cole of a starting point between 21 and 24 months, the Judge recorded his view that 26 months was appropriate. He uplifted that by four months for the theft of the bicycle, which he considered quite separate offending. He added no uplift for the glass pipe.

5      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

[11]   Turning to personal matters, the Judge noted Mr Cole was 28 years old and had 80 previous convictions, starting in 2011 and continuing every year. On 26 April 2022, Mr Cole was sentenced for offending on 27 January 2022 to 18 months’ intensive supervision. The Judge considered that sentence rather lenient, commenting Mr Cole must have convinced the sentencing Judge he “had seen the light” and would get on top of his methamphetamine addiction.

[12]   Noting his two previous burglary convictions and 19 convictions for dishonesty offences, the Judge considered “the absolute minimum uplift for that is four months.”

[13]   He then allowed a 20 per cent discount for guilty pleas. In declining the full 25 per cent discount, he cited the Supreme Court’s explanation in Hessell v R that the full discount was reserved for those who pleaded at the first available opportunity. That did not apply to Mr Cole. The Judge then held that the fact Mr Cole might have been addicted to and under the influence of methamphetamine at the time of the offending did not count. Instead, he held he had to sentence Mr Cole as though he were stone cold sober while committing the offences.

[14]   The Judge addressed the pre-sentence report, which assessed Mr Cole as having a high risk of reoffending in view of the present offending 22 days after being sentenced to intensive supervision. The report also assessed Mr Cole as being a high risk of causing harm to others. The author recommended cancelling existing intensive supervision and imposing a sentence of home detention with post-detention condition as opposed to imprisonment with release conditions. It was said home detention would allow regular oversight.

[15]   The Judge noted that he read Mr Cole’s letter of remorse with a grain of salt. Where Mr Cole explained he had “seen the light”, the Judge responded he had been given ample opportunities through past sentencing measures; yet he had done nothing but offend again.

[16]   Taking all the above into account, the Judge allowed a total discount of 20 per cent, resulting in a final sentence of 27 months’ imprisonment. He concluded:

“[18]  … In relation to the burglary you will be convicted and sentenced to 23 months’ imprisonment. In relation to the theft of the bike you will be sentenced to four months, making a total sentence of two years three months, and one month on the glass pipe. I cannot sentence you to home detention because you are above the two years.

[19]     I do not order reparation because you will never pay it.”

Approach to sentence appeals

[17]   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

[18]   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 sentence given, rather than the process by which it is reached.9

Grounds of appeal

[19]Mr Cole’s grounds of appeal are that the Judge erred by:

(a)adopting a starting point that was too high;

(b)giving insufficient credit for guilty pleas; and

(c)failing to give credit for addiction issues and/or remorse.

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].

Did the Judge err by adopting a starting point that was too high?

[20]   In his written submissions, Mr Kan argued the 26 month starting point adopted by the Judge was too high. Specifically, he submitted the Judge incorrectly considered as an aggravating factor the risk of Mr Cole and his associate confronting the homeowner or neighbour. Instead, he says the two entered the property at 11:40 am, a time typically considered one where the risk of confrontation is lower.

[21]   Mr Kan also submitted the Judge erred in stating it mattered little that some of the property was recovered. He submitted the recovery of property determines the harm to the victims and should be factored into the starting point. He says in this case, a majority of the stolen property was recovered.

[22]In all, he submits a 24 month starting point was appropriate.

[23]   For the respondent, Mr Djurich submits the 26 month starting point was within range. He submits a number of aggravating features mentioned in Arahanga were present.10 First, there were two offenders. Secondly, while the offending occurred during the day, that day was a public holiday, increasing the risk of confrontation. Thirdly, the offending was premeditated in that a neighbour captured footage on their mobile phone of Mr Cole at the property the previous day in the same vehicle as the one stopped in Te Atatu. Fourthly, a significant amount (and value) of property was taken, some of which remains outstanding.

[24]   Mr Djurich compares the present offending to a number of recent cases. In Fielding v R, the defendant and his partner burgled a neighbouring flat after they observed the sole occupant heading out for the night.11 The two stole goods valued at over $30,000, including a collection of rings the victim had inherited from her grandmother. The victim was not insured, and only a limited number of items were recovered. On appeal to the High Court, Isac J commented the starting point of two- and-a-half years was well within range; indeed, in describing the offending as “not at the minor end”, he considered a higher starting point could not have been criticised.12

10     Arahanga v R, above n 5, at [79].

11     Fielding v R [2021] NZHC 2753.

12 At [20].

[25]   In Toluono v Police, the defendant and an associate kicked down the door of a residential property at around 11:30 am.13 The two then took items, including cash and jewellery, valued at $1,250. The starting point of two years’ imprisonment, comprising 22 months uplifted by two months to reflect the fact the defendant was on bail at the time of the offending, was upheld on appeal.

[26]   In Wilkinson v Police, the defendant and an associate gained access to a residential address by entering a garage window.14 The two “took items from almost every room of the house including jewellery of $10,000 in value, £1,800 and a new Mercedes Benz” which was used to transport the stolen items.15 On appeal, Brown J held that the two year starting point adopted by the sentencing Judge was within range given the offending “involved a combination of aggravating factors that clearly lifted it above the lowest end of the scale.”16 Those aggravating factors included the burglary was of a dwelling house, two offenders were involved and a significant amount of property was stolen, including a motor vehicle.

[27]   Mr Djurich submits Mr Cole’s offending is more serious than the latter two cases, where a two year starting point was adopted, given the premeditation in the present case, the greater value of property taken and the fact the offending occurred when there was a likelihood of confrontation. He notes further that the starting point in Toluono was uplifted to account for the fact the defendant offended while on bail. In this case, Judge McDonald did not impose a similar uplift to reflect the fact Mr Cole offended twelve days after being sentenced and was still subject to that sentence.

[28]   He submits the combination of aggravating factors is more similar to the Fielding case, where a 30 month starting point was adopted. He says while the value of the property (including its sentimental value) was higher in Fielding, that offending appears to have been opportunistic in that the defendant waited for the victim to leave her flat. Accordingly, he says there was also a reduced risk of confrontation, unlike in Mr Cole’s case. He says having regard to the aggravating factors present here, a

13     Toluono v Police [2017] NZHC 809.

14     Wilkinson v Police [2016] NZHC 1845.

15 At [4].

16 At [23].

starting point of 26 months’ imprisonment was within the range available to the sentencing Judge.

[29]   I agree with Mr Djurich for the reasons he advanced. The caselaw he referred me to demonstrates that the 26 month starting point adopted by the Judge was well within range and, indeed, might have been greater. The combined features of multiple offenders, premeditation and planning, the nature and value of the items stolen coupled with the real risk that in the middle of the day on the last day of a holiday weekend the owners might be present or might arrive back, places the offending well  above the 24 month level adopted in a number of the cases cited to me. As for the last factor, Mr Cole told the pre-sentence report writer that he and his associate had parked outside the Gant property and watched the family “pack up the car and the boat for the long weekend”. This was on the Saturday morning. They returned two days later and committed the burglary.

[30]   It follows I am easily satisfied the starting point was well within the range available to the Judge.

No uplift for personal factors

[31]   Before considering whether the Judge’s allowance for personal factors was sufficient, I regard it as relevant to the assessment which follows that the Judge elected not to add an uplift on account of the fact Mr Cole committed these offences while subject to a sentence, nor did he uplift for previous convictions.

[32]   The theft of the bicycle was committed just 12 days after he was sentenced to six months of intensive supervision and the burglary six weeks after that sentence was imposed. A discrete uplift on that account was available.

[33]   I also consider that a modest uplift on account of Mr Cole’s previous convictions would have been available. Although his criminal history is not particularly extensive for a man of 28 years, since 2020 he has amassed some 19 convictions for drugs, dishonesty, firearms and breaching Court orders.

Did the Judge err by giving insufficient credit for guilty pleas?

[34]   Mr Kan next submitted the 20 per cent discount the Judge awarded for guilty pleas was insufficient. Instead, the Judge should have awarded the full 25 per cent. Mr Kan submits Mr Cole entered his guilty pleas at the first reasonable opportunity. He explains Mr Cole had offered to plead guilty to all charges at an early stage of the proceedings subject to discussions about the value of the stolen bicycle and the specific items under the burglary charge. He says Mr Cole pleaded guilty as soon as agreement was reached on those points.

[35]   Mr Djurich maintains the Judge was correct to award a 20 per cent discount. He says Mr Cole first appeared in the Auckland District Court on 7 June 2022 where he pleaded not guilty and elected trial by jury. He then appeared on 15 June 2022 for a bail application which was ultimately not advanced. He appeared again on 21 June 2022. Only by memorandum of counsel on 26 July 2022 did Mr Cole express his intention to enter guilty pleas pending discussions. Mr Djurich also submits the strength of the Crown case is relevant to this assessment.

[36]   I agree with Mr Djurich. It was open to the Judge to allow a lesser discount in the circumstances. This was not a plea or pleas entered at the first reasonable opportunity. The first indication of a willingness to plead guilty was contained in the case management conference memorandum on 26 July 2022, over six weeks after he was first charged with the burglary. Furthermore, on any analysis this was a strong prosecution case. Conviction on the burglary charge given Mr Cole’s admissions and the fact he was found in possession of items stolen in a burglary committed less than an hour earlier made conviction on that charge all but inevitable. I accept that credit for a guilty plea is not solely a function of the strength of the prosecution case, but rather the genuineness of the offender’s acceptance of responsibility, but it is a factor which may inform that inquiry.

[37]   While another Judge may have given a more generous discount, it cannot be said that the 20 percent allowed here was an error.

Did the Judge err by failing to give credit for addiction issues and/or remorse?

[38]   Mr Kan’s final submission is that the Judge should have awarded a discount of between 10 and 20 per cent for remorse and to address Mr Cole’s addiction and rehabilitation prospects. He says the Judge failed to consider the pre-sentence report writer’s belief that Mr Cole could implement positive change if he addressed his mental health and addiction issues. He noted the Judge deemed the fact Mr Cole was under the influence of methamphetamine at the time of the offending and that he was addicted to methamphetamine irrelevant. The Judge also failed to address the fact  Mr Cole had been engaging CADs while in custody; nor did the Judge mention that the Epsom Lodge which had accepted Mr Cole into its programme. In his oral submissions on the appeal, Mr Kan submitted that an analysis of Mr Cole’s blood had revealed the presence of a controlled drug and that when the vehicle was searched, in addition to the glass pipe, methamphetamine was found.

[39]   I accept that there is evidence that Mr Cole is probably addicted to methamphetamine and was so at the time of the index offending. While there was no evidence before the Judge (nor before me on appeal) of the blood analysis or the finding of methamphetamine in the search referred to by Mr Kan, the presence of the glass pipe and two convictions for methamphetamine offending since 2020, support such a finding.

[40]   The author of the pre-sentence report recorded Mr Cole as saying that at the time of the bicycle theft he had been “awake on meth for days”. He said he had no idea of the value of the bicycle and intended to sell it to feed his addiction. He gave no such explanation to account for his motive for the burglary.

[41]   Mr Kan relied on a passage in the pre-sentence report which recommended home detention with post-detention conditions as opposed to imprisonment with release conditions to permit oversight. However, the background to that comment needs to be considered. On 15 August 2022 when Mr Cole vacated his not guilty pleas, the Judge directed a “PAC report with appendices”. This order was made following a submission that Mr Cole was “... completing CADS ...” The recommendation was made in that context.

[42]   The difficulty is that there is little or no reliable, independent evidence that the burglary was committed in a causal sense as a consequence of Mr Cole’s addiction.

[43]   It is well settled that addiction may well operate to mitigate culpability where the offending was caused, at least in part, by addiction. This is because an offender’s moral culpability may be diminished where addiction is an operative factor in the commission of the offence. However, as the Court of Appeal observed in Zhang v R, any such discount should be based on persuasive evidence, as opposed to mere self- reporting.17

[44]   Here there is a dearth of cogent, reliable and independent evidence linking addiction to the index offending. Mr Cole’s assertions that addiction drove his offending are self-reported whether to the pre-sentence report author or in his letter to the Court or any other source. Furthermore, while he claimed the theft of the bicycle was driven by his need to obtain funds to feed his habit, he gave no such explanation to the report writer to account for the burglary. Notably, his letter of remorse, while referring to a “downward spiral” caused by addiction does not attempt to suggest the offending was driven by addiction.

[45]   It follows I do not accept there was sufficient evidence before the sentencing Judge to justify a discount on account of addiction.

[46]   Similar observations may be made in relation to Mr Kan’s submission that a discrete discount for remorse should have been given.

[47]   An offender is entitled to a discount independent of that for a guilty plea if it can be demonstrated that they are genuinely remorseful. The Supreme Court in Hessell noted that remorse is not necessarily shown simply by pleading guilty and sentencing Judges will properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful. A proper and robust evaluation of the circumstances is required.18

17     Zhang v R [2019] NZCA 507; 3 NZLR 648 at [148]

18     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

[48]   Where there has been recidivist offending, Judges are entitled to place little weight on expressions of remorse.19

[49]   Similar observations can be  made  in  the  present  case,  notwithstanding  Mr Cole’s letter of remorse. This is not a case where a discount beyond that of a guilty plea is justified.

[50]It follows that this ground of appeal must also fail.

Totality assessment

[51]   Even if I am wrong in finding that that the Judge made no error of principle, I am satisfied that a different sentence should not be imposed.

[52]   Standing back and assessing the sentence as a whole and in the context of totality, an end sentence of 27 months’ imprisonment could not be said to be manifestly excessive in all the circumstances. The offending involved the theft of an expensive high end bicycle followed by the breaking and entering of a residential home and the stealing of a wide range of items of considerable worth including three firearms. Uplifts on account of personal matters could have, but were not, made. I am satisfied the discount for the guilty pleas was appropriate and the discounts not allowed were justified.

Result

[53]The appeal is dismissed.

Moore J

Barristers/Solicitors:

Mr Kan, Auckland

Crown Solicitor, Auckland

19     R v Ngamo [2009] NZCA 512 at [9]; Chapman v Police [2022] NZHC 2585; Toluono v Police

[2017] NZHC 809.