Cole v Police

[2024] NZHC 310

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2024-463-000006

[2024] NZHC 310

JARED SHAINE COLE

v

NEW ZEALAND POLICE

Hearing:	13 February 2024
Appearances:	R E Webby for the Appellant (By AVL) T T T S Taane for the Respondent
Judgment:	1 March 2024

JUDGMENT OF POWELL J

[Appeal against sentence]

This judgment was delivered by me on 1 March 2024 at 4.30 pm

…………………..

Registrar/Deputy Registrar

JARED SHAINE COLE v NEW ZEALAND POLICE [2024] NZHC 310 [1 March 2024]

[1]    Jared Cole has appealed an end sentence of two years and one months’ imprisonment imposed by Judge J P Geoghegan on 12 December 2023.1 The sentence was imposed after Mr Cole pleaded guilty to nine charges of driving while disqualified in the aggravated form (being Mr Cole’s third or subsequent conviction for such offending) (“the driving charges”),2 one charge of unlawful possession of a firearm (“the firearms charge”)3 and one charge of unlawful possession of ammunition (“the ammunition charge”).4

[2]Mr Cole appeals Judge Geoghegan’s decision on three grounds:

(a)the starting point of 14 months on the firearms charge was manifestly excessive;

(b)the Judge gave insufficient discount to reflect the appellant’s remorse and prospects for rehabilitation; and on the basis of (a) and (b), the resulting end sentence should have been below 24 months imprisonment.

(c)home detention would have been the appropriate sentence.

[3]    The Court must allow the appeal if it is satisfied that, for any reason, there is an error in the sentence and that a different sentence should have been imposed.5 The Court will intervene where the sentence is manifestly excessive,6 but will not engage in “tinkering”.7 The focus is on whether the sentence is within the appropriate range, rather than the process by which the sentence was reached.8

1      Police v Cole [2023] NZDC 27880.

2      Land Transport Act 1998, ss 32(1)(a) and 32(4).  Maximum penalty: 2 years’ imprisonment or a

$6,000 fine, and a minimum one year disqualification from holding or obtaining a driver licence.

3      Arms Act 1983, s 50(1)(a). Maximum penalty: 3 year’s imprisonment or a $4,000 fine.

4      Section 22B. Maximum penalty: $10,000 fine.

5      Criminal Procedure Act 2011, s 250(2).

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].

7      Maihi v R [2013] NZCA 69 at [21].

8      Tutakangahau v R, above n 6, at [36].

The District Court decision

[4]    In his sentencing notes, Judge Geoghegan identified the lead charge as unlawful possession of a firearm — a sawn-off shotgun — which was found together with 11 rounds of ammunition around Mr Cole’s bedside table during a warrantless search for drugs. His Honour adopted a starting point of 14 months for the firearm and ammunition charges to reflect the modified nature of the firearm, the ready availability of the firearm and ammunition, Mr Cole’s involvement with gangs or gang associates, and Mr Cole’s age.9 Judge Geoghegan then adopted a starting point of 20 months for the driving charges which represented Mr Coles’s thirteenth through twenty-first convictions for driving while disqualified. Judge Geohegan considered the driving charges demonstrated Mr Coles’s “complete and flagrant disregard of the disqualification imposed by the court”.10 This resulted in a cumulative starting point of 34 months’ imprisonment.

[5]    A 25 per cent discount was allowed for Mr Cole’s guilty plea reducing the combined starting point to 25.5 months.11 However, Judge Geoghegan found that no other discounts would be appropriate. His Honour recorded uncertainty around Mr Cole’s genuineness regarding rehabilitation due to his behaviour following previous sentences and his history of offending.12

[6]    Judge Geoghegan then uplifted the sentence by four months to reflect Mr Cole’s history of criminal offending (not including his convictions for driving offences, which had already been accounted for).13 He then reduced the sentence by four months to adjust for totality with the end sentence rounded down in favour of Mr Coles.14

[7]    The final sentence reached was 25 months’ imprisonment. Initially Judge Geoghegan simply sentenced Mr Cole to 25 months’ on both the firearms charge and the driving charges to be served concurrently but by way of an addendum to the

9      Police v Cole, above n 1, at [13].

10 At [15].

11 At [17].

12 At [18].

13 At [19].

14 At [21].

sentencing notes explained that as the maximum sentence on the driving charges was two years’ imprisonment the term in each of the driving charges was reduced to 18 months’ imprisonment, to be served concurrently with the firearms charge. As the end sentence was longer than two years, home detention was not available.15

The case for Mr Cole

Starting Point on the firearms charge

[8]    On behalf of Mr Cole, Ms Webby submitted that a starting point of 14 months was manifestly excessive. Ms Webby relied on R v Kane16 in which a starting point of 12 months was adopted for possession of a shotgun and accessible ammunition located in a bedroom. Ms Webby noted Mr Kane and Mr Cole were both associated with the same gang, the Headhunters. She also noted that that there was no evidence that Mr Kane had a criminal purpose for possessing the shotgun and, likewise, she submitted that Mr Cole also had no specific criminal purpose for possessing the firearm other than for protection.

[9]    Ms Webby contrasted this with the case of R v Ronaki,17 which concerned escalating gang tensions and two firearms located in a vehicle, one of which was loaded with five rounds. In contrast with Mr Cole, Mr Ronaki received a starting point of only 18 months’ imprisonment for possession of the two firearms and ammunition. Ms Webby submitted that Mr Cole’s offending was analogous to Mr Kane’s and less serious than Mr Ronaki’s. Therefore, she contends that a starting point of 14 months was manifestly excessive and a starting point of 12 months was appropriate.

[10]   Related to the starting point issue, Ms Webby noted the incongruity of a starting point of 14 months on the firearm charge ultimately being recorded as an end sentence on that charge of 25 months, and therefore submitted that the way the sentence was constructed also resulted in an outcome that was manifestly excessive for Mr Cole. Such an outcome would arise in the event Mr Cole was to reoffend in the future and the reasons for the present sentence were not available.

15 At [21].

16     R v Kane [2017] NZHC 340.

17     R v Ronaki [2023] NZHC 1682.

Remorse/prospects of rehabilitation

[11]   With regard to additional discounts Ms Webby noted that Mr Cole had used his time on remand to undertake such rehabilitative courses as were available, and provided an apology letter which, Ms Webby submitted, built on what he had learned. In Ms Webby’s submission a discrete discount was therefore warranted to reflect this effort, separate from the guilty plea discount.

Home Detention

[12]   Ms Webby notes that with a 12-month starting point on the firearm charge, 18 months for the driving offences and appropriate discounts, the final sentence should have been below two years’ imprisonment. Accordingly, she submitted that home detention should have been granted at Mr Cole’s shared address with his long-term partner and children.

[13]   Ms Webby argued that Mr Cole’s pre-sentence detention has served a deterrent and denunciation function and therefore the least restrictive outcome appropriate in the circumstances should be home detention.

Discussion

[14]Having considered the matters raised I conclude that:

(a)the overall starting point was appropriate;

(b)no additional discounts were required; and

(c)imprisonment was the least restrictive outcome in the circumstances; but

(d)the construction of the sentence does require adjustment.

The starting point

[15]   As Mr Taane noted in his submissions on behalf of the Crown, and as Ms Webby ultimately conceded, there has been a broad range of starting points adopted for comparable cases, and on analysis it is clear that the starting point adopted in this case was not excessive. R v Kane is in any event distinguishable given there was no indication the shotgun was sawn-off in that case. In contrast, in the present case the fact the firearm was a sawn-off shotgun meant there was no possibility Mr Coles could have acquired it for any lawful purpose.  In addition, as Judge Geoghegan noted,   Mr Cole’s comment that he had his firearm for protection implied a willingness to use it “if necessary”.18 I accept those observations and conclude a higher starting point was warranted than in R v Kane. In contrast, it is difficult to see how the starting point was determined in R v Ronaki, and instead I conclude a better comparator would be Burns v Police in which a sawn-off shotgun and ammunition were also found in a bedroom, and a 22 month starting point was adopted. 19

[16]   Taking those matters together I am satisfied that the starting point on the firearms charge was not manifestly excessive.

Discounts

[17]   I likewise conclude that no discrete discount was warranted for remorse and/or prospects of rehabilitation. As Mr Taane noted, Hessel v R is clear that discounts for remorse in addition to those for guilty pleas should only be given in exceptional circumstances.20 The apology letter and courses do not meet the threshold of “exceptional remorse demonstrated in a practical and material way”.21

[18]   While I accept Ms Webby’s submission that Mr Cole could have taken no steps and his attendance at the courses is at least a start, there is no information as to how long the courses attended lasted, what was imparted, and how appropriate engagement/completion on the part of Mr Cole might have been assessed. Likewise, given Mr Cole’s history, and in particular his history of recidivism with regard to

18 At [11].

19     Burns v Police [2021] NZHC 1589.

20     Hessel v R [2010] NZSC 135, [2011] 1 NZLR 607 at [63].

21 At [63].

driving while disqualified, it is difficult to simply accept attendance at his present courses and the remorse letter as being of any particular substance. On the contrary it falls far short of what might be required to conclude the expressed remorse was genuine over and above his guilty plea and/or that Mr Cole was genuinely committed to avoiding driving while disqualified in the future.

Home Detention

[19]   Given my conclusions above, the end sentence remains the same and home detention therefore remains unavailable. Even if this had not been the case, I would have concluded that home detention at the proposed address was inappropriate. This is because it was the scene of the offending. It is where Mr Cole normally resides, where the firearm and ammunition was located, and where Mr Cole had on numerous occasions left to drive while disqualified.

Construction of sentence

[20]   The final issue was really only developed in the course of oral arguments in connection with the starting point but is clear that the fact that Mr Cole has an end sentence of 2 years and one month on the firearm charge does not appropriately reflect the seriousness of that charge based on the starting point adopted, and as Mr Taane acknowledged, is likely to be potentially prejudicial to Mr Cole in the event of any future offending. As a result, I am satisfied that while the overall sentence was appropriate, the sentence on the firearm charge was, in isolation, manifestly excessive.

[21]   It is apparent that the same overall sentence can fairly easily be reached without imposing a disproportionally severe sentence on the firearms charge, although this also requires an adjustment on the end sentence on the driving charges, which, as will be noted, carried an end sentence of 18 months’ imprisonment. Noting that the uplift for earlier offending and the discount for totality were both 4 months and effectively cancel each other out they can be put aside for present purposes. Instead, applying a 25 per cent discount to the firearms change starting point of 14 months’ imprisonment result in 10.5 months’ imprisonment.  Rounding down this as per Judge Geoghegan’s

approach22 gives an end sentence on the firearms charge of 10 months’ imprisonment, which is consistent with the seriousness of the charge. Approaching the driving charges in the same way and deducting the 25 per cent discount for the guilty plea from the starting point of 20 months’ imprisonment adopted by Judge Geoghegan on the driving charges results in an end sentence of 15 months’ imprisonment on each of the driving charges. If the sentences for the firearm and driving charges are served cumulatively the overall end sentence remains 25 months’ or 2 years and 1 month imprisonment.

Decision

[22]   The appeal is allowed in part. The sentence on the firearms charge is quashed and substituted with a sentence of 10 months’ imprisonment from the original sentencing date. The sentence on the driving while disqualified charges is also quashed and substituted with a sentence of 15 months’ imprisonment to be served concurrently with each other and cumulatively on the firearms charge. The remainder of the sentence is unchanged.

Powell J

22 At [21].