R v Cole
[2017] NZHC 517
•21 March 2017
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI-2016-082-374 [2017] NZHC 517
THE QUEEN
v
DEAN COLE
Hearing: 21 March 2017 Appearances:
S Manning for the Crown
S Hughes QC for Dean ColeJudgment:
21 March 2017
SENTENCING NOTES OF CULL J
[1] Mr Cole, you appear for sentence today having pleaded guilty to the murder of your son Blair Philip Cole at your home on 12 October 2016. I will refer to Blair as Blair in these sentencing notes.
[2] In sentencing you I am going to: (a) summarise your offending;
(b) explain your personal circumstances; (c) explain your pre-sentence report;
(d) explain the impact of offending on your family; and then
R v DEAN COLE [2017] NZHC 517 [21 March 2017]
(e) deal with the sentence on the murder charge.
[3] Before I begin, I wish to acknowledge the presence and support you have in Court today from your ex-partner, Ms Carol Cole, and your two other children, Croyden and Tess. I will refer later to their victim-impact statements in my sentencing remarks and the other material that has been placed before me. But the events which have brought you all here today are – without doubt – a tragedy. A tragedy, in particular, for your family.
Your offending
[4] I want to turn first to your offending. I base this summary on the agreed statement of facts to which you pleaded guilty as well as other information and evidence provided to this Court.
[5] Approximately three years ago, you relocated to Mohaka to care for your elderly mother when she was terminally ill with cancer. You nursed her on your own, until she died. When your mother passed away in May 2015 her estate was distributed amongst relevant family members, including your son Blair. Blair always maintained that he never received his fair share of the inheritance and formed the view that you were responsible for this.
[6] This source of contention between yourself and Blair was exacerbated by other ongoing interpersonal issues, primarily around your belief that Blair had ongoing issues with the use of alcohol and methamphetamine which caused him to be violent and unpredictable towards friends and family.
[7] Two months prior to the offending, Blair asked if he could move from Auckland to Mohaka to live with you. After initially protesting that the past history between you and him would make for an uncomfortable household dynamic, you reluctantly agreed that Blair could relocate to Mohaka to live with you.
[8] In the days leading up to the offending, Blair badgered and harassed you
regarding your mother’s estate. Blair subjected you to various incidents of violence.
He grabbed you by the throat, he threatened to kill you as well as threatening your two other children, Croyden and Tess. You have described your tolerance of the victim as being at breaking point.
[9] You had been sleeping poorly as a result of this and stayed awake all night on
11 October 2016, considering ways to put an end to Blair’s ongoing aggressive behaviour. You decided to shoot Blair to render him immobile and put him in a wheelchair.
[10] On the morning of 12 October 2016 you travelled to Wairoa where you obtained bank transactions which you believed would prove to Blair that his inheritance payments had been received. You then returned to Mohaka with the mail.
[11] Blair was at home and inside the house when you handed him both the bank transactions that you had obtained and the mail. Blair gave you a dissatisfied grunt and then walked off to his bedroom without the transactions.
[12] It was then that you went to the shed; you got the .22 calibre bolt action rifle, which had been borrowed from a work colleague a few days prior. Whilst in the shed you inserted the bolt and the magazine into the rifle. You then went back into the house with the rifle and went towards Blair’s bedroom, working the bolt on the rifle and forcing a round into the chamber as you walked through the house. You stood in the doorway of the victim’s bedroom with the rifle. At this point Blair was sitting on his bed with his head down reading and was unaware of your presence. The distance between the two of you was approximately 1.5 metres.
[13] You raised the rifle up to Blair’s shoulder and aimed at Blair. You said to him “this is the end of it”. Blair raised his hand and said “no”, at which point you pulled the trigger and shot him. The round entered Blair’s body near the middle of his chest.
[14] Blair slumped back on his bed and you picked up a towel and threw it at him whilst telling him to apply pressure to the wound. You later described being in a
trance-like state when shooting Blair, but recovered from this when you realised he was fatally injured. Blair died within minutes of having been shot.
[15] You then rang 111 and informed the police of your actions. You waited at the front of your property for the police and emergency services to arrive. You were then subsequently arrested and you pleaded guilty to one count of murder on 9
February 2017, at the earliest available opportunity.
Your personal circumstances
[16] I want to turn now to your personal circumstances. You are 63 years old and have struggled for a long time with mental health problems.
[17] You have had a longstanding diagnosis of bi-polar affective disorder, as well as a diagnosis for paranoid schizophrenia in the 1980s. The opinion of the psychiatrist, Dr Pillai, who prepared a report for the Court, is that at the time of Blair’s death, you were likely suffering a chronic relapsing and remitting manic-
depressive illness.1 In the context of this illness, you had developed cognitive
distortions and an impaired ability to act rationally.
[18] This mental state was likely a consequence of environmental stress and pressure, including Blair’s behaviour, as well as an underlying mood disorder.
[19] Dr Pillai described in his report that on the second night Blair was living with you, Blair assaulted you, placing his hands around your throat and threatening to kill you. This led to your difficulty in sleeping and you kept your door bolted at night. During the day, you carried a knife in anticipation you would have to defend yourself against Blair.
[20] Dr Pillai describes Blair’s belief that you had denied him a proper share of your mother’s estate and your developing view that you needed to incapacitate Blair
to ensure he did not act on his threat against you or your other children.
1 Report of Dr Krishna Pillai, dated 19 January 2017.
[21] Dr Pillai describes an escalating situation with Blair’s threats becoming more regular and more detailed. This involved Blair’s threats that he would kill you, bury you in the swamp and take over the property. You are described as becoming more desperate as to how you would take steps to protect the rest of the family whom he was also threatening.
[22] Dr Pillai described it this way and your counsel has referred to that part of the report as well. He says:2
Mr Cole stated he did not sleep at all and stayed up that night looking at his computer. He went about tasks “as if in a trance …” preoccupied with the recurring thought that he needed to incapacitate his son so he could “not hurt anybody else”.
[23] Following interviews with your son and daughter, Dr Pillai believed you were in a manic state in June 2016, one month before Blair came to live with you. He described your mood leading up to this incident as follows:3
… In the weeks leading up to the killing of Blair Cole, Mr Cole has described [a] depressed and hopeless mood, lack of sleep, agitation, anxiety, suicidal ideation, irritability and an experience of a “trance” like state (depersonalisation or dissociation). In my opinion it is likely that this was a mixed affective state, in other words a relapse of the bipolar disorder with features of depression and mood elevation.
[24] He concluded that you have a relapsing and remitting mental illness, and it is bipolar disorder. Your mood was de-stabilised following the terminal illness and death of your mother for whom you cared and nursed alone for two years. This was compounded later by your enforced close association with Blair. At the time of the offending that led Dr Pillai to conclude you were likely suffering a major depressive illness of moderate severity with features of mood elevation, compounded by your use of marijuana and alcohol to which you were resorting at the time.
[25] In the context of your depressive illness, you developed cognitive distortions and a sense of hopelessness, which led to your homicidal behaviour. A feature of your abnormal mental state was psychomotor agitation. The extreme behaviour and
response to the threat from Blair was triggered by your perception that your life and
2 Dr Pillai, above n 1, at [31].
3 At [48].
those of your family were in danger. There is no doubt that your chronic mental health problems contributed to this offending.
111 Call and Police Interview
[26] There are two other statements you made, which are relevant and are
corroborative of the psychiatrist’s opinion.
[27] The first is the 111 call you made to the Police, immediately after the shooting. You said:
He’s been terrorising my family for 22 years and me. I’m sick of it. I’ve
been to people, I’ve asked you people for help in the past, we never got any
– none! No mental health help. So now I’ve put him out of his misery.
[28] As your counsel has said and as the information provided to the Court verifies, Blair was using methamphetamine and alcohol and in the past you had attempted to help him with his drug addiction over those earlier years.
[29] Following the assaults on all the members of your family to which I will come shortly, Blair’s siblings had little or nothing to do with him, because of Blair’s violence and unpredictable behaviour.
[30] The second statement of relevance is your Police interview. You explained Blair’s past, his unpredictable behaviour, his anger and rage focussed on your family members and his reliance on methamphetamine and alcohol.
[31] You told them that you had nursed your mother for two years with little break or relief, and later Blair asked if he could stay with you, as he had nowhere to go. He said he wanted to have an opportunity for your relationship to heal.
[32] From the time he came to stay with you, and I have taken this from the various parts of your interview with the Police, you say he constantly abused you:
(a) he told you you were useless, pathetic and tragic.
(b) he told you that you had ripped him off from your mother’s estate;
and
(c) he also told you that he intended to kill you and then, go after his brother and sister.
[33] You were physically assaulted. You described becoming physically unwell and unable to sleep and again you told the Police you locked your door and you carried a knife.
[34] Blair came to your place of work and read you “the riot act”. He did things in front of your workmates to humiliate you in the presence of others. You became deeply depressed. You described being in a black hole and you turned to alcohol and cannabis to get you through.
[35] The night before this offending, Blair kicked a door down, attacked you and told you he was going to bury you in the swamp and take over the property. He was going to put a hammer through Croydon’s (your son’s) head and when your daughter came for Christmas, he was going to deal for them.
[36] You described being unable to eat, or sleep and you felt paralysed by him. You described being “completely terrified of him, (and these are your words), his explosive temper, the many times he assaulted me” but most particularly, you were worried about the increasingly repeated threats towards your son and daughter.
Pre-sentence report
[37] I turn now to consider your pre-sentence report. Your pre-sentence report records that you are at a low likelihood of reoffending because of your low number of previous convictions.
[38] However because of this offending and some of the convictions you incurred in 2013 and 2014, you are estimated as being at a high risk of harm to the community because principally becasue of this murder charge.
[39] The overall impression however, gained from your interviews with the assessor was that you have been tearful and regretful about the outcome of your actions. You stated you never intended to kill Blair, you only wanted to disable him, because of the abuse and intimidation he had inflicted on yourself and your family. The assessor also acknowledges the mental health issues you have and that you are dealing with, as well as the stress you were under at the time of the offending
Impact of your offending
[40] I turn now to the impact of your offending. It is appropriate that I address the impact of your actions on your immediate family. Your former partner, Ms Cole, who has read her victim impact statement here today, and your daughter Tess have both described the significant grief they have been faced with following Blair’s death. However, all of your immediate family have also recognised that Blair was prone to violent and threatening behaviour and had previously acted this way towards them as well as yourself. They have all identified that they are upset about the situation in which you now find yourself and ask this Court to impose a lenient sentence if possible.
[41] Your former partner supports you in seeking a sentence less than life. She was assaulted in 2008 by Blair and attests to Blair’s violence to the other family members. Blair had little to do with the family since he assaulted her in 2008. She describes Blair as being manipulative and determined to get a fair share of his grandmother’s estate. She wants you to have an opportunity to address your mental health issues and asks that this Court give that some regard.
[42] Your son Croyden confirms Blair’s unpredictability and his violence to the family, including an assault on him, breaking his jaw. He has had nothing to with Blair since that assault. He also supports your seeking a lesser sentence than life imprisonment.
[43] Your daughter Tess confirms that Blair assaulted her and that she and other members of the family were frightened of him, because of his unpredictability and violence. She also speaks of Blair’s obsessional belief that he was entitled to live in
the Mohaka house and that you had ripped him off in the distribution of the estate. She too supports a lesser sentence.
Sentence for murder
[44] I turn now to your sentence for murder. Until 2002, a sentence of life imprisonment was mandatory for the crime of murder. There was no alternative. Now, the law is that where someone is convicted of murder, there is a presumption that the person will be sentenced to life imprisonment.4 That presumption can be displaced if the court considers that such a sentence would be manifestly unjust, given the circumstances both of the offence and the offender.
[45] First, I must therefore consider whether I should sentence you to life imprisonment under s 102 of the Sentencing Act and whether the presumption should apply here.
Displacing the Presumption
[46] In deciding that, I must be satisfied that your circumstances and the circumstances of the offending either do not displace that presumption of life imprisonment, or that the presumption of life imprisonment would be manifestly unjust.5 The threshold for manifest injustice is very high, requiring exceptional circumstances.
[47] Both your counsel, Ms Hughes QC, and the Crown, Mr Manning, submit, and I agree – that in the circumstances of this case a 17 year minimum period of imprisonment is not necessary,6 under s 104 of the Sentencing Act.
[48] I turn then to the relatively few cases that have been considered to meet the high threshold of manifestly unjust.7 Since the current law on sentencing came into
force in 2002, the cases that have displaced the presumption of life imprisonment
4 Sentencing Act 2002, s 102.
5 Sentencing Act 2002, s 102.
6 Sentencing Act 2002, s 104.
7 Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [SA102.02].
have involved mercy killing,8 battered defendants suffering severe and prolonged abuse,9 an offender who suffered from a major psychotic illness,10 offenders who did not commit the principal offending,11 and an offender who was extremely young.12
Each of those cases confirm that where life imprisonment is not to be imposed, it must be manifestly unjust.
[49] There are a number of factors in your case which are relevant to the circumstances of your offending. I have defined them as three, there have been:
(a) 22 years of abuse and threats from Blair to you and your family over that period of time and from time to time;
(b) the provocation giving rise to this offending; and
(c) your own mental health and circumstances at the time of this offending.
[50] Against those factors, as the Crown has submitted this morning, (and you have heard the submissions from Mr Manning) that the Court should take into account the planning involved in the murder and your clear intention not to murder Blair, but to harm him. You obtained a weapon and your use of a weapon in these circumstances requires society’s condemnation and a deterrence in sentencing. Those are the two balancing sides of the coin that I must look at in reaching your sentence.
[51] So in determining whether a sentence of life imprisonment is appropriate for your situation, I have considered two principal issues. The first is the submission that your offending was caused by Blair’s provocation, and the second is that your
offending was caused by your personal circumstances, namely your mental health.
8 R v Law (2002) 19 CRNZ 500 (HC); and R v Knox [2016] NZHC 3136.
9 R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775; and R v Rihia [2012] NZHC 2720.
10 R v Reid HC Auckland CRI-2008-090-2203, 4 February 2011.
11 R v Cunnard [2014] NZCA 138; and R v Madams [2017] NZHC 81.
12 R v Nelson [2012] NZHC 3570.
Provocation
[52] I turn first to consider provocation. Provocation must be of a significant and exceptional nature, for it to be manifestly unjust to impose a life sentence.13 This is a question to be determined on the facts of your situation.
[53] Ms Hughes has outlined the violent behaviour and threats that Blair inflicted on yourself and your family, causing you to act in such a way that you otherwise would not have, in order to protect yourself and your family. She submitted that your offending was a pre-emptive strike in anticipation of a further increase in violence and risk to your family. Essentially her submission is that but for Blair’s provocation and the years you have suffered abuse from Blair, you would not have killed him.
[54] She has detailed the physical and psychological abuse that has been inflicted on you and your family; how he had become focused on his entitlements under your mother’s estate; and how this behaviour increased in seriousness prior to your offending. She too refers to the way in which you bolted your door at night, in fear of your safety. She also submits to this Court that your case is similar to those of battered victims of domestic abuse and this was not just provocation in the days leading up to the offending but had continued for a substantial period of time.
[55] For the Crown, Mr Manning submits that provocation has not been sufficiently proven on the facts to warrant overturning the presumption of life imprisonment. He notes that the standard for provocation to be considered in your sentencing is a high one. He argues as you heard that this was not met in your case and he refers to the 111 tape as noting that you were simply “fed up” with Blair’s behaviour and decided to put an end to it. Mr Manning notes that the nature of the abusive relationship between yourself and Blair fell well short of that in other cases where provocation and prolonged abuse (and there has been reference to two of those cases) were considered significant enough to displace the presumption of life
imprisonment.14
[56] I have considered those submissions, both in writing and here this morning. The approach of the courts to provocation as a mitigating factor is that firstly, the purposes in s 7 of the Sentencing Act must be considered.15 These include accountability for the offending, denunciation, (that is society’s denunciation of such offending,) deterrence, protection of the community, as well as providing for the victim’s family and ultimately the rehabilitation of the offender.16
[57] Section 8 principles must also be considered; in particular the gravity of the offending, including the degree of culpability of the offender and you will recall that is a factor that Mr Manning stressed in his submissions.
[58] So when assessing whether a sentence should be reduced for provocative words or conduct, the question is always whether the words or conduct should be treated in all the circumstances as reducing the offender’s culpability for the offending.
[59] In addition I am required to take into account the aggravating and mitigating factors under s 9 and under that section, the conduct of the victim may be treated as a mitigating factor. Importantly, any provocative words or actions on the part of the victim may be considered.
[60] Lastly, in this exercise, although Parliament clearly considered that provocation could be taken into account when deciding whether a life sentence would be manifestly unjust, it must be established in exceptional circumstances. It must be a high degree of provocation which is required in all murder cases to displace the presumption of life imprisonment.
[61] I have looked at the gravity of your offending in this case. It involves a decision you made, not in the heat of the moment or from circumstances that occurred on the day. You had arranged to obtain a .22 rifle and you intended to use it, although not to mortally wound Blair, but to disable him. I note that even after the
shooting, you thought you had only wounded him, by throwing him a towel and telling him to put it on the wound.
[62] Against that, the evidence before me establishes that Blair had behaved over
22 years in a physically and psychologically abusive way to you and members of your family.
[63] It was in July 2016 that he turned to you however and asked that he live with you in your mother’s house. You mention in your interview that he had nowhere else to go.
[64] From the moment he moved in, he began, in your words, to the 111 call centre, a “reign of terror”. That included assaults on you, throwing things at you and around the house and an escalation of death threats against you and your children and continuing psychological abuse of you.
[65] The nature, duration and gravity of the provocation here led to your feeling of hopelessness, depression and isolation in dealing with Blair’s behaviour. I mention isolation; you were the one who was dealing with Blair throughout this period. Your desperation is summed up, in my view, in the 111 call. You were the last backstop in this family and you could see no other solution. I accept the submission from your counsel that whilst that may not appear rational to others, in your situation, that was how you saw it.
[66] In my assessment of all the factors, the support of your former partner and your children is also significant. They all attest to the fact that you were the one who was coping with Blair, when others could not or would not. It has not escaped my notice that having looked after your terminally ill mother for two years on your own, that the source of Blair’s aggression and fixation was your mother’s estate, her home and the distributions made.
[67] I have reached the view, after weighing all those factors that the abusive provocation you faced, both historical and in the time leading up to your offending, was significant, exceptional and reduced your culpability in the circumstances. I do
so however bearing in mind, not just the factor of provocation but the other factor, which is your mental health.
Personal circumstances
[68] I now turn to consider your personal circumstances, including your mental health. As reflected in the psychiatric assessment from Dr Pillai, your mental health problems have been characterised as a chronic relapsing remitting manic-depressive illness and this is an identified bi-polar disorder.
[69] Ms Hughes has stated on your behalf that your mental health problems were an operating factor in your behaviour and which in turn led to Blair’s death. She has submitted that your case is similar to that in another where it could be said that but for the illness of that person, the defendant would not have killed the victim.17 She has also referred particularly to the case which you have heard both counsel refer to as Wihongi; I am going to return to that shortly.
[70] The Crown disagrees with this position. Mr Manning argues that your mental health is relevant but it is not sufficient to make your case an exceptional one. Despite your mental state, he says you committed a murder with a high degree of culpability and it is this culpability that Mr Manning submits is something that this Court should take into account. He states that your mental health is not of sufficient severity as the cases where life imprisonment has been determined to be manifestly unjust.
[71] The cases that counsel have referred to, and in particular those referred to by the Crown, have involved complex post-traumatic stress disorder, significant cognitive deficits, brain injury, low reasoning ability, borderline personality disorder or a major psychiatric illness and psychotic delusions.18 He argues that the type of mental issues you are experiencing are not unusual for people who commit crime,
including murder.
17 Reid, above n 7.
18 Wihongi, above n 6; Rihia, above n 6; and Reid, above n 7.
[72] After examining your personal circumstances, it is plainly evident that you are currently facing mental health problems. In other cases, offenders have suffered from disabilities, extreme behaviour and mood elevation and the presumption of life imprisonment has not been displaced.19 But in this case I am taking into account your counsel’s submission that you do have a defined mental health disorder and at the time of your offending, you were experiencing the cognitive dysfunction and
irrationality which has been described by Dr Pillai. It is a combination of your mental health factors and the provocation, which I believe will make a sentence of life imprisonment manifestly unjust in these circumstances. I am also persuaded that these circumstances are unusual and exceptional; they have gone on for 22 years.
[73] Yet, despite the tragedy to your family, your family members are asking for leniency in the face of the violent and threatening conduct of Blair.
[74] I am satisfied therefore that your offending does displace the presumption of life imprisonment, in all those circumstances. I turn now to consider a finite sentence and whether a minimum period of imprisonment should be imposed.
Finite Sentence
[75] I want you to understand what I must take into account in looking at an appropriate finite sentence. I am required to consider the following objectives under ss 7 and 8 of the Sentencing Act. They are:
(a) holding you accountable for the harm you have done to the community and the victim;
(b) denouncing your conduct;
(c) deterring you and others from committing the same or a similar offence; and
(d) protecting the community from you.
19 R v Mayes [2004] 1 NZLR 71(CA); and R v Tu [2016] NZHC 1780.
[76] I have considered the cases referred to me on the appropriate starting point. Obviously there are two cases which both counsel have referred to, and in particular your counsel has relied on the Wihongi circumstances and factors which she says bears a resemblance to this.20 I have given consideration to that, but I believe there are some differences between your offending and that of Ms Wihongi.
[77] I believe that an appropriate starting point in your case is 14 years imprisonment. This term takes into account the objectives under the Sentencing Act as well as the specific factors of your offending. The differences between this offending and the Wihongi facts are that you formed a plan that you had to maim Blair and the actions that you took on that morning, principally the deliberate and point blank range of shooting Blair.
[78] In reaching this starting point, I have considered that your offending involved the use of a weapon, that there was a level of planning or premeditation in your actions and the extent of the harm that resulted; Blair lost his life.21 This starting
point, I am satisfied, is comparable with similar offending in other murder cases.22
[79] I am then looking at adjusting the starting point of 14 years’ imprisonment to reflect your personal circumstances. I have already taken into account provocation and your mental health issues in deciding not to impose a sentence of life imprisonment. However, I have not yet taken into account your early guilty plea and
the remorse you have shown following your actions.23
[80] In this case, you entered your guilty plea at the first appearance after you were determined to be fit to plead. Your guilty plea has saved your family the anxiety and stress of a public trial, which would have been particularly severe in the circumstances of your case. You have shown some understanding of your offending and the emotional impact it has had on your family and you have accepted that you
must be held accountable. I accept you are remorseful and that is genuine. I
20 Wihongi, above n 6.
21 Sentencing Act 2002, s 9(1).
22 R v Nelson [2012] NZHC 3570; Rihia, above n 6; and Wihongi, above n 6.
23 Sentencing Act 2002, s 9(2).
therefore, am giving you a discount of two years’ imprisonment to reflect those
mitigating factors.
[81] Mr Cole, the final finite sentence I am imposing is a sentence of 12 years’
imprisonment.
Minimum period of imprisonment
[82] I turn then to consider the minimum period of imprisonment you must serve in relation to those 12 years.
[83] I consider that for the purposes of accountability, denunciation and deterrence of this offending, it is appropriate to set a minimum term of imprisonment for this offending. I believe that your offending is not at the worst end of the range that this Court sees. Your offending was, however, a tragic murder. The minimum period of imprisonment you must serve for the murder of Blair is six years’ imprisonment. It will be then for the Parole Board to determine what happens in terms of conditions and your release from there.
[84] I make this observation, that while you serve your sentence, you will need to access mental health services for ongoing medication and treatment of your bipolar condition.
[85] I also record that you have already been given your first strike warning when you entered your guilty plea.
Conclusion
[86] Mr Cole, please stand.
[87] I am sentencing you to a finite term of imprisonment of 12 years for the murder of Blair Cole. This sentence includes a two year discount for your guilty plea, remorse and acceptance of your accountability.
[88] I impose a minimum sentence of imprisonment of six years, which marks society’s denunciation of your conduct and the deterrent effect on you and others of committing such an offence. The minimum period you must serve in prison is six years.
[89] Please stand down.
Solicitors:
Crown Solicitor, NapierBank Chambers, New Plymouth for Defendant
Cull J
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