Collinge v The Queen

[2017] NZHC 2891

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI 2017-485-52 [2017] NZHC 2891

BETWEEN

BLAIN BOND COLLINGE

Appellant

AND

THE QUEEN Respondent

Hearing:	21 November 2017
Counsel:	V C Nisbet for Appellant A B Richards for Respondent
Judgment:	23 November 2017

JUDGMENT OF SIMON FRANCE J

[1]      Mr Collinge  appeals  an  effective  sentence  of  two  years  seven  months’ imprisonment on a raft of offences.1  The basis of the appeal is that insufficient credit was given for his remorse and rehabilitative efforts. The aim of the appeal is to reduce the sentence to one where home detention is a possible outcome.  The underlying proposition is that Mr Collinge’s circumstances make a non-custodial sentence the proper outcome both for Mr Collinge’s sake and that of society generally.

[2]      Mr Collinge is a methamphetamine addict.  Until 2014 he had a trade and was in a stable relationship.  Work saw him relocate overseas and it was there he became addicted.  He returned to New Zealand and his addiction caused the collapse of his

personal circumstances and led to offending.

1      R v Collinge [2017] NZDC 21281.

COLLINGE v R [2017] NZHC 2891 [23 November 2017]

[3]      In 2015 he was given what is generally accepted as a lenient sentence of home detention in relation to a series of offences including five charges of burglary, and offering to supply methamphetamine, ecstasy and cannabis.   That sentencing took place 14 months after his arrest and in the interim Mr Collinge had made great strides. He had completed addiction courses, and along with his supportive parents was developing a methamphetamine rehabilitation centre.  His father has brought that to fruition.  On that sentencing occasion a starting point of four and a half years’ was reduced to two years’ imprisonment, before being replaced by home detention.

[4]      It appears matters progressed for some time as everyone hoped they might.

Mr Collinge had set up a business as a fitness trainer and was engaged in the sport of power lifting. He was also employed at the rehabilitation centre as a fitness instructor. He was (and is) in a stable relationship and from the outside appeared to be doing well. However, in the middle of 2016 he relapsed and unbeknown to his partner and parents began taking methamphetamine again.

[5]      There followed a spate of offending similar to but more serious than the 2014 offending.   That offending will be described shortly but to complete the narrative

Mr Collinge was arrested and in August 2016 admitted to electronically monitored (EM) bail.   While on bail he again undertook treatment for drug and gambling addictions, and is presently a mentor at the rehabilitation facility his father runs.

[6]      Mr Collinge and his partner have very recently become parents, and like his parents, Mr Collinge’s partner remains supportive of him.

[7]      It was against that background sentencing occurred.

Present offending and sentencing

[8]      The numerous charges involve property and drug offending.

[9]      The property offending. There are six charges of burglary and one of receiving. Two burglaries were of commercial premises, and four of residential properties at night. Of the residential burglaries the method of entry caused damage each time and on at least two occasions Mr Collinge went through the house while occupants slept.

The monetary value of the thefts was not high, but laptops taken from one address contained the study notes of students preparing for their exams.

[10]     The drug offending.   Concerning methamphetamine, there were at least 13 offers to supply and 17 supplies totalling 8.15 grams. In addition, there were offers to supply, and supply of MDMA and LSD.  Three grams of MDMA were supplied as were 19 LSD tabs.

[11]     For the drug offending the Judge identified a starting point of three years for the methamphetamine offending, and considered that sufficient to cover the other drug offending.  The same figure was taken for the burglaries, and in neither case was an uplift applied for past offending. The combined starting point of six years was reduced by six months presumably for totality reasons.

[12]     Concerning mitigation, the Judge allocated a 25 per cent discount for remorse, rehabilitative efforts and participation in a productive series of restorative justice sessions with the victims of the burglaries.  The Judge then reduced the starting by eight months for a year of EM bail and then applied a 25 per cent guilty plea credit to the adjusted figure.  The outcome was two years and seven months’ imprisonment. The Judge deferred the sentence to enable time to be spent with Mr Collinge’s new daughter, and recommended the Parole Board consider parole at the earliest opportunity.

Appeal

[13]     The appeal is presented, as one would expect of Mr Nisbet, on a realistic basis. Areas are targeted as carrying the potential for greater reduction, all however being used as a vehicle to reduce the sentence to two years to enable a rehabilitative focus to win out. For the record the areas identified are a higher allocation for rehabilitation (35 to 40 per cent), greater recognition of the success of the restorative justice process, noting the concerns expressed by the victims as to the effect imprisonment would have on Mr Collinge, and a separate allocation for remorse.

Decision

[14]     This is an appeal and obviously it must be shown that the Judge erred.2  When a five and half year starting point has already been reduced by more than 50 per cent, submissions on appeal of inadequate allocation for mitigating factors face an uphill road.

[15]     However, I consider the circumstances of the case require more comment than just a conclusion that the Judge has not been shown to have erred.  It is apparent to anyone that a sentence other than imprisonment would be the best outcome for

Mr Collinge. Of course recognition of that fact makes him far from unique. There are other imperatives that must be recognised as part of the sentencing process and one of them is equal treatment of offenders.3   That is not to say that there is not room for exceptions and variations, but the legitimacy of individual sentences is very much premised on the proposition of equal treatment of offenders.

[16]     I consider here that from a sentencing viewpoint everything has been done for

Mr Collinge that can be.  Indeed, on strict orthodox sentencing principles, an appeal against the leniency of the outcome would have far greater prospects than the present appeal.  That is in no way to criticise the sentence under review, but just to recognise its obvious intent to be a merciful sentence.

[17]     It is not necessary to break matters down but in terms of the starting point I feel confident in observing each figure is favourable to Mr Collinge as is the absence of any uplift for past recent offending of the same type.   I do not make the same comment about the discounts. They are plainly at the upper ends of what is available, but there is available authority to support each of them.4

[18]     In addition to the point I made about equal treatment, the Sentencing Act 2002 identifies a series of other considerations to which regard must be had.5    The tariff

cases that then govern these sentencings reflect the assessment of the senior courts as

2      Criminal Procedure Act 2011, s 250.

3      Sentencing Act 2002, s 8(e).

4      See, for example, the discounts given for these factors in R v Shirley [2009] NZCA 216; R v

Fanguna [2009] NZCA 316; and R v Kennedy [2011] NZCA 109.

5      Sections 7 and 8.

to how those principles are to be brought together in relation to certain types of offending.   Deterrence has been identified as a key component of drug offending sentencing, with a corresponding diminution of the role of personal factors.  Those principles are now long established, and sentencing courts are bound by their own responsibilities to apply them.

[19]     The  reality  here  is  that  unfortunately  the  nature  and  seriousness  of

Mr Collinge’s offending, whilst in the grip of his addiction, has made anything other than a sentence of imprisonment unrealistic. I am satisfied the sentence imposed is as

low as it can be and the appeal is accordingly dismissed.

Simon France J