Colman v Police - [2014] NZHC 3215

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000364 [2014] NZHC 3215

BETWEEN
VAUGHAN MAXWELL COLMAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 15 December 2014

Appearances:

N Satjipanon for Appellant
T Hu for Respondent

Judgment:

15 December 2014

ORAL JUDGMENT OF VENNING J

Solicitors: Meredith Connell, Auckland
Public Defence Service, Auckland

COLMAN v NEW ZEALAND POLICE [2014] NZHC 3215 [15 December 2014]

[1] Vaughan Colman pleaded guilty to the following offences:

(a) on 31 July 2013 breached a sentence of intensive supervision by failing to report;

(b) theft of tools from Placemakers to a value of $395.78;

(c) theft of fragrant products from Farmers, Newmarket, to a value of

$1580;

(d) possession of a pipe used for the consumption of cannabis; (e) possession of methamphetamine;
(f) possession of LSD;

(g) possession of a needle for the use of illicit drugs;

(h) on 26 March 2014, while on bail, theft of shoes to a value of $109; (i) possession of a syringe for the use of drugs;
(j) possession of methamphetamine; and

(k) on 28 August 2014 failure to answer District Court bail.

[2] On 4 November 2014 Judge C Ryan in the District Court at Auckland sentenced Mr Colman to imprisonment for 22½ months.1 He appeals against that sentence.

[3] The Judge took as a starting point the lead sentence of theft of the goods at Farmers, the maximum penalty for which was seven years’ imprisonment. The Judge took a starting point of 14 months’ imprisonment for that, then uplifted it by three months for the other two charges of theft; three months for the breach of the

intensive supervision; three months for failure to answer District Court bail (which the Judge noted was the third non appearance in less than a year); four months for the possession of drugs whilst on bail on 9 October; and three months for possession of drugs and utensils whilst on bail on 26 March 2014 following having been exited from the Drug Court. To that combined total of 30 months the Judge then imposed a further uplift of four months for Mr Colman’s previous offending history.

[4] The Judge then deducted four months or just over 10 per cent for Mr Colman’s personal circumstances, the fact he had obtained employment, steps he had taken in prison and issues in his childhood that counsel had referred to. That reduced the starting point before credit for the guilty plea to 30 months. The Judge then gave the maximum reduction of 25 per cent leading to the end sentence of 22½ months.

[5] In support of the appeal counsel submits the final sentence imposed was manifestly excessive because:

(a) the starting point taken by the Judge was too high, the uplifts were not justified; and

(b)the Judge was in error in not providing further discount for genuine remorse and efforts at rehabilitation.

[6] Counsel submitted that having regard to those factors the appropriate starting point would have been 18 months’ imprisonment for the totality…

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 Colman v Police

Details

AGLC: Colman v Police [2014] NZHC 3215
Case: [2014] NZHC 3215
Decision Date: 15 December 2014

CaseChat Overview and Summary

Vaughan Colman appealed against a sentence imposed by Judge C Ryan in the District Court at Auckland. The appellant had pleaded guilty to various offences, including theft, breaches of intensive supervision, and possession of drugs. Judge Ryan sentenced Colman to 22½ months imprisonment, which the appellant argued was manifestly excessive. Colman's counsel contended that the starting point for the sentence was too high and the uplifts were unjustified, and that the judge should have provided further discount for genuine remorse and efforts at rehabilitation. Colman's counsel submitted that the appropriate starting point would have been 18 months imprisonment for the totality of the offending, with a 20 per cent reduction for personal circumstances and a full 25 per cent for the guilty pleas. The court considered whether the starting point for the offending and the way the judge structured the starting point for the sentence was appropriate. The court found that the starting point of 30 months for the totality of the offending was open to the judge, given Colman's previous offending history. The court also found that the judge was entitled to impose an uplift given Colman's propensity to offend in this way. The court rejected the submission for a further reduction for remorse, finding that any reductions for remorse must be for genuine remorse, rather than simple expressions made at the time of sentencing. The court found that the ultimate sentence imposed was within a range available to the judge and dismissed the appeal.

The court found that the starting point for the offending and the way the judge structured the starting point for the sentence was appropriate. The court considered Colman's previous offending history and found that the starting point of 30 months for the totality of the offending was open to the judge. The court also found that the judge was entitled to impose an uplift given Colman's propensity to offend in this way. The court rejected the submission for a further reduction for remorse, finding that any reductions for remorse must be for genuine remorse, rather than simple expressions made at the time of sentencing. The court found that the ultimate sentence imposed was within a range available to the judge and dismissed the appeal. The court's reasoning was based on the principles set out in Tutakangahau v R and Hessell v R, which emphasise the importance of considering whether the sentence imposed is within range rather than the process by which the sentence is actually reached. The court found that the judge had appropriately considered Colman's personal circumstances and the strength of the police case in imposing the sentence.

Orders