Cole v Police
[2013] NZHC 3083
•19 November 2013
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 appeal Ms Stewart accepts for Mr Cole that an order for disqualification under the Sentencing Act 2002 was open in principle, but contends that the term imposed stands too high, when compared with like cases, especially when set against Mr Cole’s sentence of imprisonment. The period of disqualification imposed, she contends, is excessive in isolation and makes his sentence excessive in totality.
[10] For the respondent Mr Mills contends that use of a car as a weapon is an intrinsically dangerous offence and must sit within that category of cases for which the maximum period of disqualification permitted by the Sentencing Act 2002 is intended.
Three comparable cases
[11] This appeal turns on a comparison with three broadly comparable cases, the first of which is a case in 2000, on which Ms Stewart relies, Wansborough v New Zealand Police.2
[12] In that case the appellant was sentenced in the District Court to nine months imprisonment suspended for 18 months, eight months periodic detention and 18 months disqualification. He appealed the first two elements of his sentence but not his disqualification. This case is therefore, at best, illustrative.
[13] In that case the victim kicked the passenger door of the appellant’s car. The appellant reversed a short distance. He accelerated towards his victim, who jumped on to the bonnet to avoid getting hit. Then he backed away and drove at his victim three more times, and on the fourth occasion clipped her with a wing mirror. She suffered bruising and lacerations.
[14] The second case, on which Mr Mills relies especially, is a 2005 case, Samuels v Police.3 There the appellant was sentenced in the District Court to imprisonment for two years and disqualified for three years for dangerous driving causing injury and failing to stop after an accident.
[15] After an incident on the highway the appellant and the other drive involved stopped to check damage. There was an exchange of words. The appellant drove at one of the occupants of the other car, knocking him over and throwing him over the bonnet of his own car and then on to the road. The appellant then left.
[16] On appeal Cooper J held the three year disqualification imposed was not excessive. He said that the appellant had used his car as a weapon. He accepted that the appellant’s most aggravating conviction, for dangerous driving causing death, was apparently incorrect. But he held that the appellant’s offence was otherwise all of a piece with his driving history, which is not dissimilar to Mr Cole’s history.
[17] Finally, there is the 2007 case, on which Ms Stewart also relies, Williams v Police,4 where the appellant was sentenced in the District Court to 10 months imprisonment for intentional damage, two and a half months imprisonment concurrently for dangerous driving, and was disqualified for two years.
[18] The appellant had pursued a car in front of him. He had rammed it from behind and side swiped it, causing it to stop. Then he and an associate had got out, threatened the occupants with beer bottles and smashed the windscreen with a bottle. He appealed his two year disqualification.
[19] Panckhurst J agreed with the sentencing Judge that this offending was ‘about as bad as it gets’. He noted that the appellant had a bad driving history. He agreed that he had to be disqualified for a period towards the upper end of the range for the offence. However, as a matter of totality, he considered, his term of imprisonment imposed had also to be taken into account.
[20] In totality, Panckhurst J concluded, the period of disqualification imposed was manifestly excessive. He reduced it to 18 months.
Conclusions
[21] It is difficult to rank even broadly comparable cases exactly and danger can be caused when cars are driven slowly, just as much when they are driven fast. Injury may or may not result and that can be fortuitous.
[22] Mr Cole’s offending seems to me most nearly comparable with that in Wansborough and Samuels where the offenders drove at their victims: in Wansborough four times without causing any serious injury; in Samuels once, as here, but at such speed evidently that the victim was thrown up on to the bonnet of the car and suffered injury.
[23] Mr Cole drove at his victim more slowly and deliberately. But he pinned his victim to the wall and caused him injury. The most that can be said is that he did not cause more injury than he did. By a narrow margin, and perhaps fortuitously, that appears to me to make his offending less serious than that in Wansborough and Samuels. Also, in this case, the Judge could only disqualify up to the three year maximum and the issue then becomes whether this offending was in that category where only the maximum would serve.
[24] Mr Cole’s offence was serious, unquestionably, and fully warranted the sentence of imprisonment the Judge imposed. But, given that term of imprisonment, it does not seem to me to have been so serious as to require also disqualification for the maximum period. I grant the appeal and I reduce Mr Cole’s period of
disqualification from three years to two years.
P.J. Keane J
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