Coster-Jury v The King

[2025] NZHC 2866

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2025-412-000065

CRI-2025-412-000066 [2025] NZHC 2866

BETWEEN

TANE JOHN COSTER-JURY

Appellant

AND

THE KING

Respondent

Hearing:	17 September 2025
Appearances:	S A Saunderson-Warner for Appellant (via VMR) J C Collins for Respondent (via VMR)
Judgment:	30 September 2025

JUDGMENT OF PRESTON J

This judgment was delivered by me on 30 September 2025 at 4.00 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

COSTER-JURY v R [2025] NZHC 2866 [30 September 2025]

Introduction

[1]    In June 2024 the appellant Tane Coster-Jury, a serving prisoner, was part of a violent group assault on another inmate. Four months later, while still in custody, Mr Coster-Jury responded to an assault by another inmate by punching, kicking and stomping that prisoner unconscious.

[2]    Mr Coster-Jury pleaded guilty to charges of assault with intent to injure1 and common assault.2 Judge Robinson sentenced him to 26 months’ imprisonment.3

[3]Mr Coster-Jury appeals the sentence as manifestly excessive.

[4]He contends the Judge erred by:

(a)failing to apply the principle of parity relating to the group attack;

(b)declining to adjust the sentence for totality;

(c)providing only five per cent credit for personal and background factors; and

(d)declining to give any credit for remorse.

The offending

[5]The offending in each assault was captured on CCTV.

Assault with intent to injure — June 2024

[6]    On 26 June 2024, Mr Coster-Jury was an inmate at Otago Correctional Facility. At approximately 10.00 am, he and three co-offenders were in an exercise yard along with the victim and other prisoners.

1      Crimes Act 1961, s 193—maximum penalty three years’ imprisonment.

2      Crimes Act, s 196—maximum penalty one year’s imprisonment. Mr Coster-Jury was originally charged with assault with intent to injure but this was amended to common assault.

3      Police v Coster-Jury [2025] NZDC 18499.

[7]    Mr Coster-Jury approached the victim and punched him. Two co-offenders quickly joined the assault and all three men punched and kicked the victim to the head and body multiple times. They then stood over the victim, who was on the ground, and the fourth co-offender walked over to kick the victim in the head. Mr Coster-Jury punched the victim once and another co-offender kicked the victim once.

[8]    This initial assault lasted approximately 47 seconds. During this time the victim held up his arm to try and protect himself from the kicks and punches.

[9]    The four offenders exchanged hugs with each other then walked back to the victim who was still on the ground. The victim stood up and they circled him. A co- offender punched the victim, before Mr Coster-Jury and another co-offender delivered multiple kicks and punches.

[10]   This second assault lasted approximately 18 seconds before the offenders stopped. At no point does the CCTV footage show that the victim attempting to fight back. The victim was transported to Dunedin Public Hospital where he was admitted for the night. The victim sustained injuries including swelling to his right wrist and hand which required a splint, and was referred to a fracture clinic.

Common assault — October 2024

[11]   On 18 October 2024, Mr Coster-Jury remained an inmate at Otago Correctional Facility. He had completed the sentence he had been serving but, as I will return to, had reverted to remand status due to the fresh charge of injuring with intent arising from the June 2024 assault. The victim in this assault was serving a sentence for an unrelated matter.

[12]   The victim and Mr Coster-Jury greeted each other with an embrace, immediately following which the victim started punching Mr Coster-Jury. Mr Coster-Jury took a step away from the victim as another inmate advanced and attacked a different prisoner who had entered the yard with the victim. An exchange of punches ensued between Mr Coster-Jury and the victim, and Mr Coster-Jury wrestled the victim to the ground. Mr Coster-Jury kicked the victim in the head four

times, rendering him unconscious with the fourth kick. Mr Coster-Jury stomped on the victim’s head before aggressively charging another prisoner.

[13]   As the victim lay unresponsive on the concrete floor, Mr Coster-Jury stood over him and directed another closed-fist punch at the victim’s head. Mr Coster-Jury slapped the victim’s face before walking away.

[14]   Another prisoner placed the victim into the recovery position before Corrections staff entered the yard and removed the victim. The victim sustained bruising and swelling to his head and face, and abrasions to his scalp and legs.

District Court decision

[15]   Judge Robinson had previously sentenced Mr Coster-Jury’s co-offenders in the June assault. Having viewed the CCTV footage of the June offending, he was satisfied the summary of facts accurately reflected Mr Coster-Jury’s culpability in the group assault.4

[16]   The Judge considered the 20-month starting point adopted for the co-offender Mr Tipa-McQueen, noted the importance of deterrence for maintaining order within prison and identified aggravating features of the assault: attacks to the head, multiple attackers, a vulnerable victim and a gang context.5 The Judge also noted the relevant sentencing authorities when assessing culpability in assault with intent to injure cases,6 and for violent offences within a prison context.7 The Judge applied a 21- month starting point for Mr Coster-Jury to reflect the fact that he instigated the attack.8

4      Police v Coster-Jury, above n 3, at [2].

5      At [27]–[28].

6      Tamihana v R [2015] NZCA 169; and Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

7      Lake v R [2017] NZCA 39; R v Connelly [2010] NZCA 52; and Tryselaar v R [2012] NZCA 353.

8      Police v Coster-Jury, above n 3, at [29].

[17]   On the charge of common assault, the Judge considered the offending as “close to the worst for which that offence is prescribed” noting the stomp to the head and that the victim was rendered unconscious.9 The Judge determined 10 months’ imprisonment appropriately reflected the gravity of the common assault.

[18]   The Judge made no adjustment for totality, stating this was consistent with the cited authorities.10

[19]   The Judge uplifted by five percent due to Mr Coster-Jury’s recent history of violence, noting this could have been 10 per cent. The Judge considered a deduction of 15 per cent was the maximum available to account for Mr Coster-Jury’s guilty pleas noting that conviction was “inevitable” given the strength of the prosecution case, and that Mr Coster-Jury received the benefit of a reduced charge (from assault with intent to injure to common assault for the October offence).11

[20]   The Judge allowed a five percent deduction for Mr Coster-Jury’s background which was outlined in a 2022 cultural report for a previous sentencing. The Judge identified this Court’s decision in Carroll v R for the proposition that defendants receive lesser credits for background circumstances as time goes on.12 The Judge further considered affording too high a reduction for background would detract from the need for accountability and deterrence in the prison environment.13

[21]   With a net deduction of 15 per cent, the 31-month starting point resulted in an end sentence of 26 months’ imprisonment.

Principles on appeal

[22]Appeals against sentence are determined in accordance with s 250.

9 At [30].

10 At [31].

11     At [33]–[35].

12     At [37], citing Carroll v R [2023] NZHC 3569.

13 At [38].

[23]   The appellate court may allow the appeal only if satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.14 A court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.15 Only if the sentence is manifestly excessive and not justified by the relevant sentencing principles is it appropriate for the appellate court to intervene and substitute its own views.16

Submissions

[24]   As noted at [4], Ms Saunderson-Warner for Mr Coster-Jury advances four grounds of appeal, challenging the sentence on the basis of the parity principle; the omission to apply a totality adjustment; the quantum of the credit for background factors; and the decision not to give credit for remorse. She submits that when these errors are regarded together, the end sentence is manifestly excessive.

[25]   Mr Collins, for the respondent, submits no error occurred and the end sentence was within range.

Discussion

Did the starting point fail to have due regard to parity?

[26]   The Court of Appeal has noted that whilst it is vital for a sentencing Court to strive for parity in sentencing co-offenders (whether sentenced separately or together), parity will not be achieved by a simple measurement against a co- offender’s culpability:17

Parity means treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.

14     Criminal Procedure Act 2011, ss 250(2) and 250(3).

15     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

16     Ripia v R [2011] NZCA 101 at [15].

17     R v Kohey (2003) 20 CRNZ 62 (CA) at [20].

[27]   Ms Saunderson-Warner submits a starting point of 20 months should have been adopted in accordance with the parity principle. She submits defendants who involve themselves in a group assault are typically treated as equally culpable unless there is clear evidence upon which to make a distinction as to their respective culpability.18 She further submits Mr Coster-Jury’s role as the instigator does not increase his culpability as although he started it, the other co-offenders, including Mr Tipa-McQueen who received a 20 month starting point, chose to join in.

[28]   I am satisfied the Judge was well placed to distinguish between the respective culpability of each offender, having viewed the CCTV footage of the June assault. In this he had the advantage of first instance assessment. The Judge was satisfied the summary accurately captured Mr Coster-Jury’s level of culpability. Relevantly, he noted Mr Coster-Jury was “at least as violent as [Mr Tipa-McQueen] was” but Mr Coster-Jury instigated the violence.19

[29]   The fact an individual participant in a group attack instigated the assault aggravates their offending relative to others.20 Starting points of 20 months’ imprisonment and 15 months imprisonment were adopted to mark the individual culpability of two other co-offenders. The fourth, whom the Judge found to be “clearly the least culpable”, also received a term of imprisonment on a time served basis.21 The Judge was entitled, based on his assessment of the evidence of the attack, to hold Mr Coster-Jury more culpable as its instigator, it not being clear whether the assault would have otherwise taken place. Further, the Judge departed from Mr Tipa-McQueen’s sentence by only one month, which sufficiently heeds the need for parity.

[30]No error is disclosed on this ground.

18     Citing R v Shipton [2007] 2 NZLR 218 (CA) at [140].

19     Police v Coster-Jury, above n 3, at [29].

20     R v Davoren HC Napier CRI-2010-016-240, 13 May 2011.

21 At [9].

Totality adjustment

[31]   Ms Saunderson-Warner submits the Judge wrongly relied on Tryselaar v R in declining a totality adjustment. She notes the Court in that case rejected a totality adjustment but only in context of the contention it was necessary to reflect the prison sentence Mr Tryselaar was already serving:22

Offending in the prison environment, particularly where that offending goes to the maintenance of the discipline needed to effectively manage a penal institution, demands a stern response. That would be seriously undermined if sentences for such offending required adjustment to reflect the fact that the offender is already serving a sentence of imprisonment.

[32]   Ms Saunderson-Warner argues Tryselaar is not authority for the proposition that a totality adjustment is unavailable where an offender appears for sentencing on more than one offence committed in the prison environment. She refers to Wereta v Police where this Court upheld the decision of the District Court which adjusted the starting point for two violent prison offences from 48 to 40 months’ imprisonment for a prisoner who was serving a lengthy sentence of imprisonment.23 The Court in Wereta observed the need for a stern response in light of Tryselaar but did not suggest the totality adjustment was wrong.

[33]   Ms Saunderson-Warner submits a five-month adjustment would be appropriate, reducing the starting point to 25 months’ imprisonment (based on the assumption her totality argument is accepted as well).

[34]   The respondent submits the total period of imprisonment imposed was not out of all proportion to the gravity of the overall offending.24 Mr Collins acknowledges Tryselaar may have been incorrectly applied, but submits it still stands for the proposition that a stern approach should be taken to violent prison offending. He therefore submits the Judge was correct to rely on Tryselaar v R and R v Connelly to justify a stern starting point in the face of a prison assault.25

22     Tryselaar v R, above n 8, at [18].

23     Wereta v Police [2023] NZHC 629.

24     Sentencing Act 2002, s 85(1)–(3).

25     Citing Tryselaar v R, above n 8; R v Connelly, above n 8; and R v Ali [1998] 2 Cr App R (S) 123 (CA).

[35]   If the Judge’s observation that the Court of Appeal authority requiring a stern response to prison assaults displaces the totality principle was intended as a general statement of principle, this was incorrect. However, the issue on appeal focusses on whether the combined starting point is out of all proportion to the gravity of the overall offending.

[36]   The Court of Appeal’s decision in Nuku v R remains the guideline judgment for sentencing assaults.26 Nuku set out three bands for determining the starting point for violent offences, relying also on aggravating factors set out in R v Taueki.27 The assault with intent to injure falls into band two of Nuku—the aggravating features being attacking the head and multiple attackers.28 Further, the assault caused moderate injury to the victim and occurred in a prison context which can be treated as an additional aggravating factor.29 The common assault falls on the cusp of band one and two—the attack to the victim’s head was a serious aggravating factor. The victim sustained moderate injuries and again it was within a prison context. The culpability is mitigated slightly by the victim initiating the violence.

[37]   For band one offences, a sentence less than imprisonment can be appropriate and for band two offences, a starting point of up to three years’ imprisonment is appropriate.30 A combined starting point of two years and seven months’ imprisonment for the two assaults is therefore consistent with the leading authority and cannot be said to be wholly out of all proportion to the gravity of the offending. Further, I take note of the Court of Appeal’s decision of Karetu v R, where it determined a totality adjustment was not required for two prison assaults but rather a “deterrent sentence was appropriate” and upheld a starting point of four years and three months’ imprisonment as not manifestly excessive.31 There was therefore no error in the Judge declining to adjust the starting point of the assaults for totality.

26     Nuku v R, above n 6.

27     At [38]; and R v Taueki [2005] 3 NZLR 372 (CA).

28     See also Russell v Police [2020] NZHC 127 at [26].

29     See for example Lake v R [2017] NZCA 39 at [7].

30     Nuku v R, above n 6, at [38].

31     Karetu v R [2013] NZCA 408 at [18]–[19]. The Court did comment though that “[i]n any event, the Judge made an allowance for totality when sentencing the appellant for the sexual offending.”

Mitigating factors

[38]   Ms Saunderson-Warner submits the Judge was incorrect to determine the 2022 cultural report holds less relevance to the prison assaults than to the 2022 family violence charges.   Based on the violence which is  reported to have surrounded   Mr Coster-Jury growing up and been normalised within his family, Ms Saunderson- Warner submits there is a “very clear connection” between Mr Coster-Jury’s background and the offending.

[39]   Ms Saunderson-Warner distinguishes this Court’s decision in Carroll v R, on the basis Mr Coster-Jury has not had the same opportunities at rehabilitation as the defendant in that case.32 She further notes that the Court in Carroll still allowed a 10 per cent deduction for background factors. Ms Saunderson-Warner argues the limited deduction for Mr Coster-Jury’s background (because of his previous convictions), as well as the five per cent uplift for previous convictions effectively counted as a double penalty.33 Further, the 15 per cent deduction for Mr Coster- Jury’s guilty pleas was not generous and there was therefore no “correction” of the sentence. It is suggested a five per cent uplift for past convictions was appropriate (rather than generous as observed by the Judge) since Mr Coster-Jury’s prior violence offending was in a family relationship setting, not a prison context.

[40]   Ms Saunderson-Warner submits the Judge was wrong to refuse any credit for remorse, which in this instance can be seen through the appellant’s letters to the Court and the victims, and by his conduct and desire to rehabilitate. Weight should be given to Mr Coster-Jury’s confirmation at sentencing that he had left the gang particularly given his intergenerational links to the Mongrel Mob. Counsel submits a five per cent deduction should have been allowed to reflect Mr Coster-Jury’s remorse and/or potential for rehabilitation.

32     Carroll v R, above n 12.

33     Citing Cooper v R [2025] NZCA 272 at [33].

[41]   Mr Collins submits a five per cent deduction for Mr Coster-Jury’s background was sufficient given that for the same report, Mr Coster-Jury received a 15 per cent deduction in 2022.34 The report focused on Mr Coster-Jury’s background of violence as a causative contributor to family violence offending, which should carry less weight in a prison  environment.  Mr  Collins  submits  the mitigating impact  of  Mr Coster-Jury’s background is lessened by the principles of deterrence and denunciation, particularly where Mr Coster-Jury has been involved in 12 prison incidents as noted in the pre-sentence report.

[42]   Mr Collins refutes the suggestion Mr Coster-Jury received a double penalty. He submits Cooper v R, as cited by the appellant, can be distinguished as Mr Cooper had not demonstrated an increasing pattern of violent offending and had made tangible progress towards rehabilitation. In contrast, the two prison assaults and numerous other incidents demonstrates an increasing pattern of violence and counsel submits the Judge was therefore entitled to treat the offending sternly in accordance with the principles of deterrence and denunciation. He submits this is particularly so given the lessened relevance of the 2022 cultural report to offending in a prison environment.

[43]   As to remorse, the respondent notes willingness to engage in restorative justice is not enough to justify a discrete deduction for remorse particularly for recidivist offending.35 Mr Collins submits the letter to the Judge does not show genuine remorse but rather distress at being in prison and that his comments in the PAC report point against remorse as he justified his actions as self-defence.

[44]   Mr Collins submits even if the sentence were to become one of short duration, a sentence of imprisonment is the only appropriate outcome. In a  context where  Mr Coster-Jury has not completed any rehabilitative programmes in prison, deterrence, denunciation and protection of the community should be at the fore.

34     Coster-Jury v Police [2022] NZHC 3352.

35     Citing Pene v R [2023] NZHC 1234 at [27]; and R v Ngamo [2009] NZCA 512 at [9].

[45]   The 2022 cultural report greatly informs how Mr Coster-Jury has come to offend in violent matters. He has been surrounded by violence and abuse from a young age. Mr Coster-Jury reported that when he was as young as five or six, his grandfather would make him stand on a set of drawers and punch his dad in the head for things his grandfather did not like his dad doing. Mr Coster-Jury grew up witnessing his dad repeatedly physically abuse his mum, which turned into physical abuse of him and his siblings. He was placed into the care of Children, Youth and Family (CYFs) at the age of six or seven where he lived in numerous homes and experienced abuse at many of them.

[46]   I am satisfied Mr Coster-Jury’s background has been a causative contribution to his offending—there was no stable period of time within his childhood nor anyone to teach him healthy coping mechanisms.36 Coupled with his family entrenchment in the Mongrel Mob, Mr Coster-Jury had little chance to avoid his path of offending.

[47]   Deductions for background factors in the context of repeat offending have been consistently applied by the senior courts.37 I consider Mr Coster-Jury’s background warrants a deduction of 10 per cent, given the constant violence he witnessed and was subjected to as a child.

[48]   A discrete deduction for remorse will be appropriate “where a proper and robust evaluation of all the circumstances” demonstrates that an offender is remorseful.38 I have read Mr Coster-Jury’s letter to the Court and to his victims. I do not doubt that Mr Coster-Jury regrets his actions to the extent he is facing additional prison time, and I accept he wants to do better in the future, particularly for his daughter. I cannot be certain Mr Coster-Jury is fully remorseful over the consequences of his offending on his victims, indeed the fact Mr Coster-Jury offended again in October points against genuine remorse, as does his comment to the pre-sentence report writer that his October actions were in self-defence, given his grossly excessive  response.  So  too  does  the  explanation  of  the  catalyst  for  Mr Coster-Jury’s June offending, that the victim was getting “cheeky”. In these

36     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [94] and [111].

37     Cooper v R, above n 3, at [31]; and Moore v Police [2025] NZHC 2038.

38     Citing Hessel v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64]; and Sentencing Act 2002, s 9(2)(f).

circumstances, I do not consider the Judge erred in not granting a discrete deduction for remorse.

[49]   Ms Saunderson-Warner submitted a deduction for remorse could be better described as a “potential to rehabilitate”. I agree Mr Coster-Jury’s potential for rehabilitation is more persuasive than his expressions of remorse. Mr Coster-Jury is 25 years old and, as outlined in the pre-sentence report, has had limited access to rehabilitative programmes in prison.

[50]   That said, Mr Coster-Jury was provided a rehabilitative sentence in 2022 after family violence offending when he was sentenced to 12 months’ intensive supervision.39 Judge Brandts-Giesen stated he was giving Mr Coster-Jury “a chance to turn [himself] around” and that if he carried on his present path he would “end up in jail with some serious offending”.40 As outlined at the sentencing for his next offending, Mr Coster-Jury refused to be inducted into his sentence of intensive supervision and therefore “totally failed to comply with the sentence in any way” and committed further serious violence offences only a matter of weeks after he was sentenced to the intensive supervision.41 Although it may have been open to the Judge to allow five per cent deduction for rehabilitative prospects, I do not consider the Judge erred in exercising his discretion not to.

Conclusion: was the sentence manifestly excessive?

[51]   With the further five per cent deduction I would allow for background factors, Mr Coster-Jury’s end sentence is one of 24.8 months’ imprisonment, just shy of a short-term of imprisonment (Mr Coster-Jury would require an additional seven/eight per cent deduction on appeal to reach 24 months’ imprisonment). I therefore do not consider the sentence of 26 months’ imprisonment to be manifestly excessive.

39     Police v Coster-Jury [2022] NZDC 2527.

40     At [6] and [7].

41     Police v Coster-Jury [2022] NZDC 16565 at [8].

[52]   I note, even had the sentence reduced to a short-term sentence of imprisonment, I agree with the respondent, conversion to home detention would not be appropriate given the nature of the offending; imprisonment was plainly the least restrictive appropriate response.

[53]   From the bar, Ms Saunderson-Warner acknowledged this reality and indicated Mr Coster-Jury would welcome special release conditions as would follow in that case. Although the sentence is not of short term, I have no doubt the Parole Board will have regard to the underlying issue counsel highlights albeit as a result of Mr Coster-Jury’s further offending in prison, that he has been unable to access programmes while in prison. I echo the Judge’s hope that he makes good his intention to depart from the gang lifestyle and take any opportunity for rehabilitation and thereby reduce his risk or reoffending.

Result

[54]The appeal is dismissed.

………………………………………

Preston J

Solicitors:

Crown Solicitor

Counsel:

S A Saunderson-Warner, Barrister, Dunedin