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 of the offending and from that a 20 per cent reduction for personal circumstances, including the remorse and attempts at rehabilitation, and a full 25 per cent for the guilty pleas was appropriate.  For those reasons the sentence imposed was manifestly excessive.

[7]      In Tutakangahau v R2 the Court of Appeal confirmed the approach to take on appeals  under  the  Criminal  Procedure Act  is  essentially the  same  as  the  Court formally adopted.  In other words, while there is no express reference to the concept of manifestly excessive or inadequate sentences, the concepts are long standing, are consistent with the statutory language and should continue to be utilised and the

focus remains on whether the sentence imposed is within range rather than the process by which the sentence is actually reached.

[8]      In  this  case  the  starting  point  for  the  offending  and  the  way  the  Judge structured the starting point for the sentence by imposing cumulative sentences was appropriate and open to the Judge.  Mr Colman is a recidivist offender, particularly in relation to shoplifting and theft.  His offending dates back to 1988.

[9]      Mr Colman has regularly been before the Courts since then for this type of offending.   Despite counsel’s submissions I am satisfied that given the maximum sentences available to the Judge the start point of 30 months for the totality of the offending in this case was open to her.

[10]     The Judge was also entitled to impose an uplift given the previous offending history.  It is not a case of sentencing Mr Colman twice for that offending but rather recognising his propensity to offend in this way which must carry consequences to him.  In any event to the extent that there could be criticism that the uplift in this case was perhaps harsh, it is more than compensated by the reduction of four months or 10 per cent credit given by the Judge for Mr Colman’s personal circumstances.

[11]     I do not accept counsel’s submission that a further credit for remorse is appropriate in this case.  As the Judge recorded Mr Colman had a long history of substance abuse and dependency which was reflected in some of the offending. Although he was placed into the Higher Ground residential programme he was exited from it.   Counsel has explained Mr Colman’s personal reasons for that this morning.

[12]     But as counsel for the Crown, Ms Hu has pointed out, given Mr Colman’s history he has had numerous opportunities to complete courses in the past to address his drug addiction and underlying offending.

[13]     In  the  circumstances  the  Judge  was  quite  entitled  to  reject  counsel’s submission for a further reduction for remorse.   The Supreme Court have made it clear in Hessell v R that any reductions for remorse must be for genuine remorse,

rather than simple expressions made at the time of sentencing.3  As the District Court

Judge said in this case essentially actions speak louder than words.

[14]     Further, the full discount of 25 per cent for the guilty pleas, given the strength of the police case, and the delay in resolution of some of the charges was, in the circumstances, generous.

[15]     The ultimate sentence imposed was within a range available to the Judge. The appeal is dismissed.

Venning J

3      Hessell v R [2011] 1 NZLR 607.