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…

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 Police

Details

AGLC: Cole v Police [2024] NZHC 310
Case: [2024] NZHC 310
Decision Date: 1 March 2024

CaseChat Overview and Summary

Jared Cole appealed the sentence of two years and one month's imprisonment imposed on him by Judge Geoghegan after he pleaded guilty to multiple charges, including driving while disqualified, unlawful possession of a firearm, and unlawful possession of ammunition. The appeal focused on three grounds: the starting point for the firearms charge, the discount for remorse and rehabilitation prospects, and the appropriateness of home detention. The High Court had to determine whether there was an error in the sentence that warranted a different sentence.

The Court considered whether the starting point of 14 months for the firearms charge was manifestly excessive, whether additional discounts for remorse and rehabilitation prospects were warranted, and whether home detention would have been appropriate. The Court held that while the overall sentence was appropriate, the sentence on the firearms charge was manifestly excessive. The Court concluded that no additional discounts were warranted, and that imprisonment was the least restrictive outcome given the circumstances. However, the construction of the sentence needed adjustment to ensure the sentence on the firearms charge reflected its seriousness appropriately.

The Court allowed the appeal in part. It quashed the sentence on the firearms charge and substituted it with a sentence of 10 months' imprisonment. The sentence on the driving while disqualified charges was 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 was left unchanged.

Final Orders:
1. The sentence on the firearms charge is quashed and substituted with a sentence of 10 months’ imprisonment from the original sentencing date.
2. The sentence on the driving while disqualified charges is quashed and substituted with a sentence of 15 months’ imprisonment to be served concurrently with each other and cumulatively on the firearms charge.
3. The remainder of the sentence is unchanged.

Orders