Cole v The King
[2025] NZCA 355
•24 July 2025 at 12 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA136/2025 |
| BETWEEN | BRANDON ST JOHN COLE |
| AND | THE KING |
| Hearing: | 24 June 2025 |
Court: | Woolford, Dunningham and Walker JJ |
Counsel: | J N Olsen for Appellant |
Judgment: | 24 July 2025 at 12 pm |
JUDGMENT OF THE COURT
A The application for an extension of time to appeal is granted.
B The appeal against sentence is allowed.
CThe minimum period of imprisonment is set aside.
REASONS OF THE COURT
(Given by Dunningham J)
Mr Cole pleaded guilty to one charge each of importation and supply of methamphetamine, and three charges of money laundering. He was sentenced to 22 years’ imprisonment by Becroft J.[1] The Judge also imposed a minimum period of imprisonment (MPI) of 10 years, being the maximum available.[2]
[1]R v Cole [2024] NZHC 3518.
[2]Sentencing Act 2002, s 86(4).
Mr Cole appeals his sentence solely on the ground the imposition of a 10‑year MPI was not warranted in his case.
Application for an extension of time
Mr Cole’s appeal is filed out of time. He explains why in an affidavit affirmed on 10 June 2025. The reasons include difficulties with his medication for mental health issues, several changes in custodial location and difficulties in communicating with relevant people over the Christmas break.
The delay is explained and the Crown does not oppose an extension of time. Accordingly, we grant an extension of time.[3]
The offending
[3]Criminal Procedure Act 2011, s 248(4).
The offending involved the importation and subsequent supply of over 450 kilograms of high quality methamphetamine. This was effected by arranging the importation of a piece of commercial machinery, a rotary separator, into the country with the methamphetamine inside it. It was then dismantled and, with the assistance of others, the methamphetamine was on‑sold.
The offending was only identified as a result of Australian Federal Police intercepting a similar piece of commercial equipment at the Australian border which was found to contain 556 kilograms of methamphetamine contained in one‑kilogram bags which were numbered up to 556. This then led New Zealand Police to execute a search on the premises where Mr Cole had arranged for the rotary separator to be delivered. The result of the search was that the police located a number of empty numbered bags containing crystal methamphetamine residue, with the highest numbered bag being bag 451. They also found large amounts of crystal methamphetamine residue in two large storage bins, along with scales, plastic scoops, disposable gloves and zip lock plastic bags.
Mr Cole accepted that 451 kilograms of methamphetamine were imported into New Zealand through the rotary separator.
Police located almost $2,400,000 in cash in a lock up rented by Mr Cole’s father and which Mr Cole had access to. Subsequent investigation revealed Mr Cole had laundered over $850,000 of drug money into various bank accounts and the purchase of two vehicles.
The High Court decision
In sentencing Mr Cole, it was accepted that the offending fell within band 5 of Zhang v R.[4] The Judge resolved the dispute as to what role Mr Cole played by determining his role was “at the top end [of] ‘significant’ shading in and slightly overlapping with a low end ‘leading’ role.”[5]
[4]R v Cole, above n 1, at [40], citing Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[5]R v Cole, above n 1, at [53].
After considering relevant case law and determining Mr Cole’s role was more serious than the defendant in R v Thai,[6] but less serious than in R vNetzler,[7] the Judge adopted a starting point of 33 years’ imprisonment.[8] The Judge considered an uplift was required to reflect the additional criminality of the money laundering offending, bringing the global starting point to 35 years’ imprisonment.[9]
[6]R v Thai [2021] NZHC 1006.
[7]R vNetzler [2021] NZHC 3321.
[8]R v Cole, above n 1, at [68]–[69].
[9]At [70].
The Judge then allowed a 20 per cent reduction for Mr Cole’s early guilty plea.[10] He accepted that Mr Cole had struggled for much of his adult life with depression, low mood and he took antidepressant medication.[11] He also accepted that Mr Cole had begun using drugs at an early age as an attempt to “self‑manage” his ADHD, and, at times, he struggled profoundly with substance abuse.[12] This included Mr Cole experiencing a cocaine‑induced heart attack.[13] However, the Judge rejected that Mr Cole’s offending was motivated primarily by addiction, saying that, at most, his offending was only attributable to his drug addiction in a small part.[14] The Judge then noted that Mr Cole had engaged positively in all the services and programmes that were available to him while on remand and was assessed at having a below average risk of reoffending.[15] In all the circumstances, the Judge considered a reduction of 10 per cent was appropriate to reflect Mr Cole’s commitment to rehabilitation and his apparent good prospects of rehabilitation.[16]
[10]At [85].
[11]At [77].
[12]At [87]–[88].
[13]At [89].
[14]At [90].
[15]At [92]–[93].
[16]At [96].
A reduction was sought for remorse and the Judge accepted that Mr Cole had “realised the enormity of [his] offending and the consequences on [his] family.”[17] However, he considered the 20 per cent reduction for guilty plea also adequately reflected that remorse. The Judge acknowledged the relationship that Mr Cole had to his 12‑year‑old daughter with a previous partner and his responsibilities to his young baby to his current partner. The Judge allowed a further five per cent discount for the impact a lengthy term of incarceration would have on them.[18]
[17]At [100].
[18]At [113].
Noting the submissions on the positive aspects of Mr Cole’s character, including that he was a “loving and devoted father” and that he was “quick to help and support others”, the Judge rounded down the sentence of 22 years and nine months’ imprisonment to an end sentence of 22 years’ imprisonment.[19]
[19]At [105] and [115].
None of the Judge’s reasoning in reaching that end sentence is challenged on appeal. The only challenge is his decision to impose a 10‑year MPI. The Judge acknowledged that this part of the sentencing was “difficult”.[20] Weighing up the fact that Mr Cole was a “knowing participant in substantial and commercial scale drug offending”, and where there was not “significant mitigation or vulnerability that would explain [his] offending”, the Judge decided “the principles of deterrence, and denunciation must win out, and together with accountability, necessitate[d] the imposition of a minimum period of imprisonment”.[21] That period was 10 years.
Submissions for the appellant
[20]At [119].
[21]At [120].
In submitting that an MPI was not required in this case Mr Olsen referred to the decision in Zhang v R where this Court said:[22]
[169] … minimum periods of imprisonment must not be imposed as a matter of routine or in a mechanistic way. It is not sufficient for a judge simply to recite s 86 without more. A reasoned analysis is required, both as regards the imposition of a minimum period of imprisonment and its length. In a number of recent appeals, this Court having undertaken that analysis has concluded that either the sentencing judge was wrong to impose a minimum period of imprisonment or that its length was excessive and not justified.
[170] In the context of drug dealing offences, there are two further important points to be made.
[171] The first is that for the reasons already discussed, it is deterrence, denunciation and accountability that are likely to be at the forefront of decisions in drug cases involving the imposition of a minimum period of imprisonment. That in turn means that as a general rule, lengthy minimum periods of imprisonment are properly reserved for cases involving significant commercial dealing.
[172] The second is that if a practice has developed that an end sentence of nine years' imprisonment automatically triggers a minimum period of imprisonment, then such a practice must cease. It is contrary to s 86 and is a wrongful exercise of discretion.
[22]Zhang v R, above n 4.
Mr Olsen then referred to several cases involving serious commercial drug offending where it was nevertheless held that it was not necessary to impose an MPI.
The first was Tran v R, where Mr Tran and Mr Navarro were involved in the possession of 109.6 kilograms of methamphetamine for supply.[23] Mr Tran received an end sentence of 14 years and seven months’ imprisonment and Mr Navarro an end sentence of 12 years and seven months’ imprisonment. In the High Court, MPIs of around 50 per cent of the total sentence were imposed. However, on appeal, this Court concluded:
(a)the objective of holding Messrs Tran and Navarro accountable was fully achieved by the high finite sentences imposed on each of them;[24]
(b)the stern sentences fully met the sentencing objective of denunciation;[25]
(c)an MPI was unnecessary to deter Messrs Tran and Navarro personally;[26]
(d)the objective of deterring others by imposing an MPI weighed in favour of it;[27] and
(e)given the relatively low likelihood of reoffending of these two defendants there was no obvious need to protect the community by imposing an MPI.[28]
The Court concluded that the long periods of time that each appellant would need to serve in prison before they were eligible for parole was sufficient to meet most of the considerations in s 86(2) of the Sentencing Act 2002 and the concern about deterring others from similar offending was outweighed by the fact that all the other s 86 considerations were met by the lengthy sentence imposed.[29]
[23]Tran v R [2021] NZCA 464, (2021) 30 CRNZ 430.
[24]At [48].
[25]At [49].
[26]At [50].
[27]At [50].
[28]At [51].
[29]At [51]–[52].
The Court also made the following observation on when MPIs may not be required:
[54] In recent times this Court has quashed or reduced MPIs in relation to appellants whose circumstances fell into one of three categories:
(a)Those who are young and with good prospects of rehabilitation.[30]
(b) Those who have a low likelihood of reoffending.[31]
(c)Those whose personal circumstances weigh against the imposition of an MPI.[32]
[30]Fangupo v R [2020] NZCA 484.
[31]Prasad v R [2020] NZCA 483.
[32]Tang v R [2021] NZCA 266.
Similarly, in Hura v R, which involved the manufacture of methamphetamine, the appellants’ sentences of 16 years and eight months’ and 14 years and four months’ imprisonment were considered sufficient to hold the appellants accountable for the harm done to the community, to denounce their conduct and to deter similar offending, and the MPIs were quashed.[33]
[33]Hura v R [2023] NZCA 7.
Mr Olsen also points out that cases involving importation of similar or greater quantities of methamphetamine to Mr Cole’s case have not necessarily prevented a decision not to impose an MPI.
In Netzler, which involved the importation of around 500 kilograms of methamphetamine and where a starting point of 35 years’ imprisonment was taken, Harland J considered there were personal circumstances in Mr Netzler’s case that weighed against the imposition of an MPI and she declined to impose one.[34] Mr Netzler’s co‑defendant, who was also held to have a significant role, had an MPI quashed on appeal, with this Court noting that his co‑operation and remorse reduced the need for personal deterrence, denunciation and accountability.[35]
[34]R v Netzler, above n 7, at [81].
[35]C (CA481/2020) v R [2021] NZCA 485 at [11].
Similarly, in Thai, which involved the importation of around 469 kilograms of methamphetamine, Toogood J declined to impose an MPI on Mr Thai and his co‑defendant.[36] In doing so, he made the following observation:
[55] In this case, so far as both of you are concerned, I have acknowledged your rehabilitation prospects and I have made allowances for that. But I have, after some reflection, determined that for me to impose a minimum period of imprisonment in these cases would be to unduly interfere with the discretion of the Parole Board, which will be much better served than I am at this point to determine later whether you are truly rehabilitated and when you are ready for release.
[36]R v Thai, above n 6.
Finally, in R v Tuumaga, in which the defendant was involved in importing some 550–560 kilograms of methamphetamine and where an end sentence of
17 years and six months was imposed, van Bohemen J declined to impose an MPI, observing both that Mr Tuumaga was assessed as having good rehabilitative prospects and a low likelihood of reoffending, and that the community was adequately protected by the minimum non‑parole period he would serve.[37][37]R v Tuumaga [2025] NZHC 996 at [78].
In contrast, Mr Olsen also pointed to the case of R v S that involved two co‑defendants, Mr S and Mr Kahlon.[38] Both were involved in an importation of methamphetamine said to be between 628 and 741 kilograms. The end sentence imposed on Mr S was 22 years’ imprisonment and the end sentence on Mr Kahlon was 21 years’ imprisonment.[39]
[38]R v S [2025] NZHC 349; and R v Kahlon [2025] NZHC 350.
[39]Mr Kahlon was also sentenced for manslaughter, for which the starting point for the methamphetamine charge was uplifted by two years.
While the sentencing Judge, Tahana J, acknowledged there was a low risk of reoffending for both defendants, she considered it was important that others were deterred from committing a similar offence in a similar way.[40] She did not consider that either of their personal circumstances weighed against imposing an MPI and both had an MPI of 10 years imposed on them.[41]
[40]In sentencing both men, it was said that this was the first case where methamphetamine was concealed in cans of beverage: R v S, above n 38, at [47]; and R v Kahlon, above n 38, at [42]. This was an important factor in imposing an MPI: R v S, above n 38, at [89]; and R v Kahlon, above n 38, at [88].
[41]R v S, above n 38, at [90]; and R v Kahlon, above n 38, at [89].
Applying the principles emerging from these cases to Mr Cole’s circumstances, Mr Olsen argues that none of the considerations in s 86(2) are engaged, except perhaps the purpose of general deterrence. However, this is countered by all the factors which point against the imposition of an MPI, being:
(a)Mr Cole’s below average risk of reoffending;
(b)his personal circumstances, including his remorse and previous good character;
(c)his prospects of rehabilitation; and
(d)his relative youth.
Mr Olsen points out that Mr Cole’s sentence is very lengthy and by itself meets the purposes of deterrence, denunciation and accountability noting Mr Cole’s non‑parole period is seven years and four months. Even if the Court concluded that the principle of general deterrence was engaged, he submits the personal circumstances of Mr Cole necessitate that it should not be imposed.
Submissions for the respondent
Mr Purdon, for the respondent, submits there was no error in imposing an MPI of 10 years. Mr Cole was a major figure in commercial drug dealing of over 450 kilograms of very high quality methamphetamine which, as the Judge observed, caused “incalculable social and economic harm and misery throughout New Zealand”.[42] In those circumstances the principles of accountability, denunciation and deterrence justified the imposition of an MPI.
[42]R v Cole, above n 1, at [34].
Mr Purdon distinguishes this case from Tran where the offending involved an importation that was intercepted before it was supplied. Similarly, in Netzler, the offending involved importation and not supply, and supply brings with it the commensurate need for accountability for the harm done and denunciation of that conduct.
Mr Purdon also submits that the purpose of general deterrence is engaged in this case. Here, significant financial benefits were gained from the drug offending and an emphasis on general deterrence is required.
Finally, in terms of protection of the community, Mr Purdon notes that Mr Cole remains affiliated with the gang, the Hells Angels, suggesting his risk of further offending is not so low as to militate against the imposition of an MPI.
In summary, Mr Purdon submits that this is a paradigm case for imposing an MPI, saying that if an MPI is not imposed in this case, then it is difficult to see when it would be.
Analysis
Any decision to impose an MPI must be guided by the provisions in s 86 and applied having regard to the circumstances of the individual case and not to the type of offending or the overall length of sentence.[43] A careful analysis must be undertaken of whether the principles of deterrence, denunciation and accountability are sufficiently met by the end sentence imposed and the standard parole eligibility date, or whether a higher MPI must be imposed to meet the s 86 test. It must also be borne in mind that the principles of community protection are addressed by the Parole Board when considering whether a prisoner is ready for release and, as Toogood J said in Thai, care must be taken not to “unduly interfere with the discretion of the Parole Board”.[44]
[43]See Zhang v R, above n 4, at [169]–[174].
[44]R v Thai, above n 6, at [55].
Turning to the purposes of imposing a higher MPI under s 86, we consider the end sentence of 22 years’ imprisonment is sufficient to meet both the objective of holding Mr Cole accountable and of denouncing his conduct.
We are also satisfied that in light of Mr Cole’s acknowledged remorse and demonstrated commitment to rehabilitation, along with his acceptance of the enormity of his offending and the consequences for his family, an MPI is not necessary for personal deterrence.
Mr Cole did not have a history of convictions and his risk of reoffending was assessed as low. Furthermore, at sentencing Mr Cole produced many letters of support from family and friends. They emphasised that Mr Cole was a loving and devoted father to his two young daughters and that he was a person who was quick to help and support others.[45] This all suggests there is no obvious need to protect the community by imposing an MPI.
[45]R v Cole, above n 1, at [105].
We do not consider that the principle of general deterrence outweighs all the factors which point against the need to impose an MPI, particularly when the overall sentence of 22 years would meet that sentencing purpose (as much as any sentence can achieve general deterrence).
While the Crown focuses on the fact that the charges involve both importation and supply, we do not consider that this, in and of itself, warrants the imposition of an MPI. The seriousness of the charges, and the potential social harm is reflected in the starting point adopted of 33 years. An MPI is not imposed simply to mark the seriousness of the offending, but to achieve the purposes in s 86.
In summary, we do not consider that this is a case in which a longer MPI was necessary to achieve the sentencing purposes in s 86(2). The sentence imposed on
Mr Cole and the standard non‑parole period of seven years and four months’ imprisonment are, in our view, sufficient to hold Mr Cole accountable for the harm done to the community, to denounce his conduct, and to deter him and others from similar offending.
Result
The application for an extension of time to appeal is granted.
The appeal against sentence is allowed.
The minimum period of imprisonment is set aside.
Solicitors:
Crown Solicitor, Auckland for Respondent
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