Cole v The Queen - [2018] NZHC 1405

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2018-463-000028/29

[2018] NZHC 1405

BETWEEN
JARED SHAINE COLE

Appellant

AND

THE QUEEN

Respondent

Hearing: 12 June 2018

Appearances:

N Dutch for the Appellant

S J P Davison and E F Collis for the Respondent

Judgment:

13 June 2018

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 13 June 2018 at 3.00pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Webby & Associates, Tauranga Crown Solicitor, Tauranga

COLE v R [2018] NZHC 1405 [13 June 2018]

Introduction

[1] The appellant, Jared Cole, has pleaded guilty to a range of offences. Details are as follows:

(a)Offending on 28/29 September 2017:

(i)Breach of supervision order;1 and

(ii)Breach of a community work order.2

(b)Offending on 17 November 2017:

(i)Driving whilst disqualified (third or subsequent offence);3 and

(ii)Providing false details.4

(c)Offending on 19 November 2017:

(i)Driving whilst disqualified (third or subsequent offence);5 and

(ii)Providing false details.6

(d)Offending on 22 November 2017:

(i)Driving whilst disqualified (third or subsequent offence);7

(ii)Providing false details;8

1      Sentencing Act 2002, s 70(a). The maximum penalty is imprisonment for a term not exceeding three months or a fine not exceeding $1,000.
2      Sentencing Act, s 71(1)(a). The maximum penalty is imprisonment for a term not exceeding three months or a fine not exceeding $1,000.
3      Land Transport Act 1998, s 32(1)(a). The maximum penalty is imprisonment for a term not exceeding two years or a fine not exceeding $6,000. The court must also order the person to be disqualified from holding or obtaining a driver licence for one year or more.
4      Land Transport Act, s 44(1). The maximum penalty is a fine not exceeding $10,000.
5      Section 32(1)(a).
6      Section 44(1).
7      Section 32(1)(a).
8      Section 44(1).

(iii)Dangerous driving;9 and

(iv)Failing to stop.10

(e)Offending on 28 November 2017:

(i)Possession of methamphetamine for supply.11

[2] Guilty pleas were entered on 23 January 2018 in relation to the offending which took place on 28/29 September 2017. Mr Cole made his first appearance in Court on 29 November 2017 in relation to the offending on the previous day – 28 November 2017. A guilty plea was then entered in relation to that charge. Guilty pleas were also entered on 23 January 2018 in relation to all of the remaining charges.

[3] On 12 March 2018, Mr Cole appeared before Judge Mabey QC in the Tauranga District Court for sentencing. An end sentence of four years and two months’ imprisonment was imposed by the Court, together with 12 months’ disqualification from driving, to be followed by a further six months disqualification, beginning on 12 March 2019.12

[4] Mr Cole appeals his end sentence, arguing that it was manifestly excessive, that the starting point adopted by Judge Mabey, in particular in relation to the drug related offending, was too high, and that the Judge did not properly discount for totality.

Factual background

[5] The charges to which Mr…

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 The Queen

Details

AGLC: Cole v The Queen [2018] NZHC 1405
Case: [2018] NZHC 1405
Decision Date: 13 June 2018

CaseChat Overview and Summary

Jared Cole appeals against his sentence for multiple charges, including possession of methamphetamine for supply and driving whilst disqualified. The District Court imposed a sentence of four years and two months imprisonment, which Cole contends is manifestly excessive. The appeal hinges on whether the starting point and the cumulative sentences for these charges were appropriately determined. The court examines the sentencing principles and the precedents cited by both parties, determining that while the District Court's approach was somewhat confusing, the end sentence itself was within the permissible range. However, the court finds that the starting point for the methamphetamine charge was too high and the cumulative sentences for the additional charges were not sufficiently justified. After reassessing the appropriate starting points and applying discounts for totality and early guilty pleas, the High Court imposes a revised sentence of three years, ten months, and two weeks imprisonment, allowing the appeal and setting aside the original sentence. The disqualification sentences and convictions for providing false details remain unchanged.

Orders