Cole v Police - [2013] NZHC 3083

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-306 [2013] NZHC 3083

BETWEEN RICHARD ALAN COLE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 19 November 2013

Appearances: I M Stewart for Appellant
L M Mills for Respondent

Judgment: 19 November 2013

JUDGMENT OF KEANE J

Solicitors:
Crown Solicitor, Auckland

COLE v POLICE [2013] NZHC 3083 [19 November 2013]

[1] On 1 August 2013 Richard Cole was sentenced in the District Court, Papakura, to 12 months imprisonment for injuring with reckless disregard for the safety of others. He was granted leave to apply for home detention if he obtained a suitable address.

[2] Judge Andrée Wiltens also disqualified Mr Cole for three years because he had used his car as a weapon. He had pinned his victim to a car park wall causing him injury to his left knee and reducing him to crutches for 10 weeks. The Judge considered a personally deterrent period of disqualification was called for.

[3] On this appeal against sentence Mr Cole takes no issue with his sentence of imprisonment. He contends that the three year period of disqualification is manifestly excessive.

Sentencing materials

[4] On 1 July 2013, according to the agreed summary of facts, Mr Cole, though then forbidden to drive, did so. He drove into a Papakura car park and stopped alongside his victim, whom he had known for five years. They argued, and yelled and swore at each other.

[5] Mr Cole accelerated forward. He pinned his victim to a concrete block wall. His victim sustained damage to the tendons of his left knee, fell to the ground and proved unable to get up. Mr Cole left the car park before the police were called. He later admitted his offence and said that he had not intended to injure his victim. In his victim impact statement, however, Mr Cole’s victim confirmed how real his injury was. Apart from the fact that he was reduced to crutches for 10 weeks, he suffered a good deal of pain.

[6] Mr Cole’s pre-sentence report recommended that he be sentenced to imprisonment with release conditions. Apart from his offence, Mr Cole had extensive previous convictions including some for driving while disqualified or while unlicensed; and also, in 2000, for driving recklessly and then dangerously.

Sentence

[7] On sentence Judge Andrée Wiltens said that, had he been able to, he would have imposed home detention but Mr Cole lacked a suitable address. He took a 15 -
16 month starting point, allowed Mr Cole a 25 per cent credit for his plea and imprisoned him for 12 months. Mr Cole, as I have said, does not appeal that aspect of his sentence.

[8] The Judge disqualified Mr Cole for three years, the maximum period permitted under the Sentencing Act 2002.1 Mr Cole’s offence, under s 189(2) of the Crimes Act 1961, did not carry disqualification as an automatic consequence. But, as the Judge said, Mr Cole had used his car as a weapon.

Submissions

[9] On this…

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 [2013] NZHC 3083
Case: [2013] NZHC 3083
Decision Date: 19 November 2013

CaseChat Overview and Summary

Richard Alan Cole appealed against his sentence of 12 months imprisonment and a three-year disqualification from driving, imposed by the District Court in Papakura on 1 August 2013. The court had disqualified Mr Cole for three years because he had used his car as a weapon, pinning his victim to a car park wall and causing injury to his left knee. The appellant accepted the imprisonment sentence but argued that the disqualification period was manifestly excessive.

The key issue before the High Court was whether the three-year disqualification period was excessive, considering the totality of the sentence, particularly in light of similar cases where different disqualification periods were imposed. The court examined three comparable cases: Wansborough v New Zealand Police, Samuels v Police, and Williams v Police. These cases provided a range of disqualification periods from 8 months to 3 years. The court noted that the severity of the offence and the driving history of the offenders played a significant role in determining the disqualification periods.

The court concluded that while Mr Cole's offence was serious and warranted the imprisonment sentence, the three-year disqualification period was excessive. The court compared Mr Cole's case with the Wansborough and Samuels cases, finding that although Mr Cole's actions were similar in nature, they resulted in less severe injury. The court acknowledged that the maximum disqualification period under the Sentencing Act 2002 was three years, but given the totality of the sentence, including the imprisonment term, the maximum period was not warranted. The court granted the appeal and reduced the disqualification period to two years.

Orders