Coleman v The Queen - [2015] NZHC 3298

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-331 [2015] NZHC 3298

BETWEEN
DYLAN EDWARD COLEMAN

Appellant

AND

THE QUEEN Respondent

Hearing: 30 November 2015

Counsel:

A J Maxwell-Scott for Appellant
R M A McCoubrey for Respondent

Judgment:

18 December 2015

JUDGMENT OF BREWER J

This judgment was delivered by me on 18 December 2015 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: Annabel Maxwell-Scott (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

COLEMAN v THE QUEEN [2015] NZHC 3298 [18 December 2015]

Introduction

[1] Mr Coleman appeals against a sentence of four years and two months’ imprisonment imposed on him by Judge NR Dawson in the District Court at Auckland on 3 July 2015.1 He argues that the sentence is manifestly excessive, particularly since he must serve the whole of it without parole because of the operation of the “three strikes” regime.

Background

[2] Mr Coleman pleaded guilty to a charge of exploitative sexual connection, which carries a maximum sentence of 10 years’ imprisonment.2 Originally, he was charged with rape and with sexual violation through oral and anal penetration. A reading of the summary of facts shows why. It is too graphic to reproduce here. Broadly, the complainant was naïve, inexperienced and has a borderline intellectual disability. She had never met Mr Coleman before. He encountered her on a train and persuaded her to go with him. Mr Coleman got her drunk and then used her sexually. He disregarded her requests for him to stop or her plea that she wanted to
go home to see her Mum. He caused her pain.

[3] It is because of the complainant’s borderline intellectual disability that the charges against Mr Coleman were able to be reduced to the single charge of exploitative sexual connection.

[4] Prior to sentencing, the Court obtained a psychiatric report for Mr Coleman.3

It gives insight into Mr Coleman’s behaviour and raises real concerns for the safety

of the public upon his release.

[5] The following passages from the report are instructive:4

63.In my opinion, there is limited doubt that Mr Coleman would fulfil the criteria for a personality disorder not otherwise specified. Specifically, he would score highly on the categories of borderline,

1      R v Coleman [2015] NZDC 12457.
2      Crimes Act 1961, s 138.
3      Criminal Procedure (Mentally Impaired Persons) Act 2003, s 38(2)(b).
4      Psychiatric report by Dr Lokesh, Consultant Forensic Psychiatrist, Regional Forensic Psychiatry
Services, dated 18 June 2015.

obsessive compulsive and narcissistic personality traits. These are characterised by a pervasive pattern of instability of interpersonal relationships, self-image and effects and marked impulsivity, beginning at childhood and presenting in a variety of contexts as highlighted in Mr Coleman’s condition …

77.The Criminal and Traffic History suggest clear evidence that there has been an escalation in Mr Coleman’s history of sexual violence in severity over time.

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 Coleman v The Queen

Details

AGLC: Coleman v The Queen [2015] NZHC 3298
Case: [2015] NZHC 3298
Decision Date: 18 December 2015

CaseChat Overview and Summary

Coleman appealed against the sentence of four years and two months’ imprisonment imposed by the District Court. The court was required to determine whether the sentence was manifestly excessive and whether the starting point and reductions for the plea of guilty and personal factors were appropriately calculated. The court considered the aggravating factors of the offence, including the vulnerability of the victim and the callous nature of the offending, as well as Coleman’s previous convictions and risk of reoffending. The court found that the starting point of six years’ imprisonment was appropriate, and that the uplift for previous convictions was justified. The court also found that the reduction for the plea of guilty and personal factors was appropriate, resulting in an end sentence of five years and five months’ imprisonment. The appeal was dismissed, and the original sentence was upheld as not manifestly excessive.

No additional orders were made.

Orders