COLE v NEW ZEALAND POLICE [2022] NZHC 3261

COLE v NEW ZEALAND POLICE [2022] NZHC 3261 [6 December 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000340[2022] NZHC 3261BETWEEN DAVID CLINTON COLEAppellantAND NEW ZEALAND POLICERespondentHearing: 29 November 2022Appearances: Michael Kan for the AppellantMilan Djurich for the RespondentJudgment: 6 December 2022JUDGMENT OF MOORE JThis judgment was delivered by me on 6 December 2022 at 3:30 pm.Registrar / Deputy RegistrarDate:Introduction[1] David Clinton Cole pleaded guilty to charges of burglary,1 unlawfully taking abicycle2 and possessing a glass pipe for consuming methamphetamine.3 On7 September 2022, Judge McDonald sentenced him at the Auckland District Court to27 months' imprisonment.4[2] Mr Cole now appeals his sentence on the basis the starting point was too high,the Judge should have allowed a greater discount for his guilty pleas and should haveallowed credit for remorse and addiction issues.The factsUnlawfully taking a bicycle[3] Around 7:00 am on 8 May 2022, the owner of a black ICAN specialist crossgravel bicycle left it outside the Teed Street Larder Café in Newmarket, Auckland.The appellant rode past on an electric scooter he had hired. When he saw the ICANwas unsecured, he got off the scooter and stole the bicycle and the owner's helmet.The ICAN is valued at $8,000.Burglary[4] On Saturday, 4 June 2022 Mr Gant and his family left their Mt Albert homefor the Queen's Birthday long weekend. At about 11:40 am on Monday, 6 June 2022,the appellant and an associate drove to Mr Gant's home. They broke in and stolenumerous items including tools, seven fishing rods, three passports and three firearms.[5] Less than an hour later, at about 12:30 pm, the Police located the appellant andan associate in a vehicle at a petrol station at Te Atatu. They searched it. They found asubstantial amount of the property stolen from the earlier burglary, but apparently noteverything. Two high powered rifles and some tools were unaccounted for. Although1 Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years' imprisonment.2 Section 226(1). Maximum penalty seven years' imprisonment.3 Misuse of Drugs Act 1975, s 13(1)(a) and (3). Maximum penalty one year's imprisonment or a$500 fine.4 Police v Cole [2022] NZDC 17352.the summary of facts and the Judge's sentencing notes record the value of stolenproperty at around $10,000, an appendix to the summary itemising the stolen propertyrecords a total value around $16,000. Irrespective of the correct figure, the quantityand value of the goods stolen was substantial.Possession of a glass pipe[6] In the course of the search the police also found a glass methamphetamine pipe.[7] To the Police, the appellant claimed that the house had already been ransackedbefore he entered and he simply went there and burgled it after the fact. He declinedto comment about the ICAN.District Court decision[8] After recounting the facts, the Judge acknowledged the usual purposes andprinciples of sentencing, in particular that he was obliged to impose the least restrictivesentence.[9] He took the burglary charge as the lead charge. He noted there was no tariffjudgment for burglary but referred to Arahanga v R, where the Court of Appeal helda relatively minor home burglary would attract a starting point of 18 to 30 months.5The Judge noted home burglaries always presented a danger of confrontation with thehomeowner or a neighbour and that the appellant and his associate took a large numberof items. The Judge considered there was premeditation in that the two had drivenaround looking for a suitable target. He noted two of the three firearms had not beenrecovered and that, in relation to the rest of the property, "it matters little that some of[it] was recovered."[10] Noting Mr Kan's submissions for Mr Cole of a starting point between 21 and24 months, the Judge recorded his view that 26 months was appropriate. He upliftedthat by four months for the theft of the bicycle, which he considered quite separateoffending. He added no uplift for the glass pipe.5 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].[11] Turning to personal matters, the Judge noted Mr Cole was 28 years old and had80 previous convictions, starting in 2011 and continuing every year. On 26 April 2022,Mr Cole was sentenced for offending on 27 January 2022 to 18 months' intensivesupervision. The Judge considered that sentence rather lenient, commenting Mr Colemust have convinced the sentencing Judge he "had seen the light" and would get ontop of his methamphetamine addiction.[12] Noting his two previous burglary convictions and 19 convictions fordishonesty offences, the Judge considered "the absolute minimum uplift for that isfour months."[13] He then allowed a 20 per cent discount for guilty pleas. In declining the full25 per cent discount, he cited the Supreme Court's explanation in Hessell v R that thefull discount was reserved for those who pleaded at the first available opportunity.That did not apply to Mr Cole. The Judge then held that the fact Mr Cole might havebeen addicted to and under the influence of methamphetamine at the time of theoffending did not count. Instead, he held he had to sentence Mr Cole as though hewere stone cold sober while committing the offences.[14] The Judge addressed the pre-sentence report, which assessed Mr Cole ashaving a high risk of reoffending in view of the present offending 22 days after beingsentenced to intensive supervision. The report also assessed Mr Cole as being a highrisk of causing harm to others. The author recommended cancelling existing intensivesupervision and imposing a sentence of home detention with post-detention conditionas opposed to imprisonment with release conditions. It was said home detention wouldallow regular oversight.[15] The Judge noted that he read Mr Cole's letter of remorse with a grain of salt.Where Mr Cole explained he had "seen the light", the Judge responded he had beengiven ample opportunities through past sentencing measures; yet he had done nothingbut offend again.[16] Taking all the above into account, the Judge allowed a total discount of 20 percent, resulting in a final sentence of 27 months' imprisonment. He concluded:"[18] In relation to the burglary you will be convicted and sentenced to23 months' imprisonment. In relation to the theft of the bike you will besentenced to four months, making a total sentence of two years three months,and one month on the glass pipe. I cannot sentence you to home detentionbecause you are above the two years.[19] I do not order reparation because you will never pay it."Approach to sentence appeals[17] This Court must allow the appeal if there is an error in the sentence imposedand a different sentence should be imposed.6 Otherwise, the Court must dismiss theappeal.7[18] The sentence must be manifestly excessive before the appeal Court maysubstitute its own views as to the appropriate sentence. The Court will generally notintervene where the sentence is within the range that can properly be justified byaccepted sentencing principles.8 Whether a sentence is manifestly excessive is to beassessed in terms of the sentence given, rather than the process by which it is reached.9Grounds of appeal[19] Mr Cole's grounds of appeal are that the Judge erred by:(a) adopting a starting point that was too high;(b) giving insufficient credit for guilty pleas; and(c) failing to give credit for addiction issues and/or remorse.6 Criminal Procedure Act 2011, s 250(2).7 Section 250(3).8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA47 at [30].9 Ripia v R [2011] NZCA 101 at [15].Did the Judge err by adopting a starting point that was too high?[20] In his written submissions, Mr Kan argued the 26 month starting point adoptedby the Judge was too high. Specifically, he submitted the Judge incorrectly consideredas an aggravating factor the risk of Mr Cole and his associate confronting thehomeowner or neighbour. Instead, he says the two entered the property at 11:40 am,a time typically considered one where the risk of confrontation is lower.[21] Mr Kan also submitted the Judge erred in stating it mattered little that some ofthe property was recovered. He submitted the recovery of property determines theharm to the victims and should be factored into the starting point. He says in this case,a majority of the stolen property was recovered.[22] In all, he submits a 24 month starting point was appropriate.[23] For the respondent, Mr Djurich submits the 26 month starting point was withinrange. He submits a number of aggravating features mentioned in Arahanga werepresent.10 First, there were two offenders. Secondly, while the offending occurredduring the day, that day was a public holiday, increasing the risk of confrontation.Thirdly, the offending was premeditated in that a neighbour captured footage on theirmobile phone of Mr Cole at the property the previous day in the same vehicle as theone stopped in Te Atatu. Fourthly, a significant amount (and value) of property wastaken, some of which remains outstanding.[24] Mr Djurich compares the present offending to a number of recent cases. InFielding v R, the defendant and his partner burgled a neighbouring flat after theyobserved the sole occupant heading out for the night.11 The two stole goods valued atover $30,000, including a collection of rings the victim had inherited from hergrandmother. The victim was not insured, and only a limited number of items wererecovered. On appeal to the High Court, Isac J commented the starting point of two-and-a-half years was well within range; indeed, in describing the offending as "not atthe minor end", he considered a higher starting point could not have been criticised.1210 Arahanga v R, above n 5, at [79].11 Fielding v R [2021] NZHC 2753.12 At [20].[25] In Toluono v Police, the defendant and an associate kicked down the door of aresidential property at around 11:30 am.13 The two then took items, including cashand jewellery, valued at $1,250. The starting point of two years' imprisonment,comprising 22 months uplifted by two months to reflect the fact the defendant was onbail at the time of the offending, was upheld on appeal.[26] In Wilkinson v Police, the defendant and an associate gained access to aresidential address by entering a garage window.14 The two "took items from almostevery room of the house including jewellery of $10,000 in value, £1,800 and a newMercedes Benz" which was used to transport the stolen items.15 On appeal, Brown Jheld that the two year starting point adopted by the sentencing Judge was within rangegiven the offending "involved a combination of aggravating factors that clearly liftedit above the lowest end of the scale."16 Those aggravating factors included theburglary was of a dwelling house, two offenders were involved and a significantamount of property was stolen, including a motor vehicle.[27] Mr Djurich submits Mr Cole's offending is more serious than the latter twocases, where a two year starting point was adopted, given the premeditation in thepresent case, the greater value of property taken and the fact the offending occurredwhen there was a likelihood of confrontation. He notes further that the starting pointin Toluono was uplifted to account for the fact the defendant offended while on bail.In this case, Judge McDonald did not impose a similar uplift to reflect the fact Mr Coleoffended twelve days after being sentenced and was still subject to that sentence.[28] He submits the combination of aggravating factors is more similar to theFielding case, where a 30 month starting point was adopted. He says while the valueof the property (including its sentimental value) was higher in Fielding, that offendingappears to have been opportunistic in that the defendant waited for the victim to leaveher flat. Accordingly, he says there was also a reduced risk of confrontation, unlike inMr Cole's case. He says having regard to the aggravating factors present here, a13 Toluono v Police [2017] NZHC 809.14 Wilkinson v Police [2016] NZHC 1845.15 At [4].16 At [23].starting point of 26 months' imprisonment was within the range available to thesentencing Judge.[29] I agree with Mr Djurich for the reasons he advanced. The caselaw he referredme to demonstrates that the 26 month starting point adopted by the Judge was wellwithin range and, indeed, might have been greater. The combined features of multipleoffenders, premeditation and planning, the nature and value of the items stolen coupledwith the real risk that in the middle of the day on the last day of a holiday weekend theowners might be present or might arrive back, places the offending well above the24 month level adopted in a number of the cases cited to me. As for the last factor,Mr Cole told the pre-sentence report writer that he and his associate had parked outsidethe Gant property and watched the family "pack up the car and the boat for the longweekend". This was on the Saturday morning. They returned two days later andcommitted the burglary.[30] It follows I am easily satisfied the starting point was well within the rangeavailable to the Judge.No uplift for personal factors[31] Before considering whether the Judge's allowance for personal factors wassufficient, I regard it as relevant to the assessment which follows that the Judge electednot to add an uplift on account of the fact Mr Cole committed these offences whilesubject to a sentence, nor did he uplift for previous convictions.[32] The theft of the bicycle was committed just 12 days after he was sentenced tosix months of intensive supervision and the burglary six weeks after that sentence wasimposed. A discrete uplift on that account was available.[33] I also consider that a modest uplift on account of Mr Cole's previousconvictions would have been available. Although his criminal history is notparticularly extensive for a man of 28 years, since 2020 he has amassed some 19convictions for drugs, dishonesty, firearms and breaching Court orders.Did the Judge err by giving insufficient credit for guilty pleas?[34] Mr Kan next submitted the 20 per cent discount the Judge awarded for guiltypleas was insufficient. Instead, the Judge should have awarded the full 25 per cent.Mr Kan submits Mr Cole entered his guilty pleas at the first reasonable opportunity.He explains Mr Cole had offered to plead guilty to all charges at an early stage of theproceedings subject to discussions about the value of the stolen bicycle and the specificitems under the burglary charge. He says Mr Cole pleaded guilty as soon as agreementwas reached on those points.[35] Mr Djurich maintains the Judge was correct to award a 20 per cent discount.He says Mr Cole first appeared in the Auckland District Court on 7 June 2022 wherehe pleaded not guilty and elected trial by jury. He then appeared on 15 June 2022 fora bail application which was ultimately not advanced. He appeared again on 21 June2022. Only by memorandum of counsel on 26 July 2022 did Mr Cole express hisintention to enter guilty pleas pending discussions. Mr Djurich also submits thestrength of the Crown case is relevant to this assessment.[36] I agree with Mr Djurich. It was open to the Judge to allow a lesser discount inthe circumstances. This was not a plea or pleas entered at the first reasonableopportunity. The first indication of a willingness to plead guilty was contained in thecase management conference memorandum on 26 July 2022, over six weeks after hewas first charged with the burglary. Furthermore, on any analysis this was a strongprosecution case. Conviction on the burglary charge given Mr Cole's admissions andthe fact he was found in possession of items stolen in a burglary committed less thanan hour earlier made conviction on that charge all but inevitable. I accept that creditfor a guilty plea is not solely a function of the strength of the prosecution case, butrather the genuineness of the offender's acceptance of responsibility, but it is a factorwhich may inform that inquiry.[37] While another Judge may have given a more generous discount, it cannot besaid that the 20 percent allowed here was an error.Did the Judge err by failing to give credit for addiction issues and/or remorse?[38] Mr Kan's final submission is that the Judge should have awarded a discount ofbetween 10 and 20 per cent for remorse and to address Mr Cole's addiction andrehabilitation prospects. He says the Judge failed to consider the pre-sentence reportwriter's belief that Mr Cole could implement positive change if he addressed hismental health and addiction issues. He noted the Judge deemed the fact Mr Cole wasunder the influence of methamphetamine at the time of the offending and that he wasaddicted to methamphetamine irrelevant. The Judge also failed to address the factMr Cole had been engaging CADs while in custody; nor did the Judge mention thatthe Epsom Lodge which had accepted Mr Cole into its programme. In his oralsubmissions on the appeal, Mr Kan submitted that an analysis of Mr Cole's blood hadrevealed the presence of a controlled drug and that when the vehicle was searched, inaddition to the glass pipe, methamphetamine was found.[39] I accept that there is evidence that Mr Cole is probably addicted tomethamphetamine and was so at the time of the index offending. While there was noevidence before the Judge (nor before me on appeal) of the blood analysis or thefinding of methamphetamine in the search referred to by Mr Kan, the presence of theglass pipe and two convictions for methamphetamine offending since 2020, supportsuch a finding.[40] The author of the pre-sentence report recorded Mr Cole as saying that at thetime of the bicycle theft he had been "awake on meth for days". He said he had noidea of the value of the bicycle and intended to sell it to feed his addiction. He gaveno such explanation to account for his motive for the burglary.[41] Mr Kan relied on a passage in the pre-sentence report which recommendedhome detention with post-detention conditions as opposed to imprisonment withrelease conditions to permit oversight. However, the background to that commentneeds to be considered. On 15 August 2022 when Mr Cole vacated his not guilty pleas,the Judge directed a "PAC report with appendices". This order was made following asubmission that Mr Cole was "... completing CADS ..." The recommendation wasmade in that context.[42] The difficulty is that there is little or no reliable, independent evidence that theburglary was committed in a causal sense as a consequence of Mr Cole's addiction.[43] It is well settled that addiction may well operate to mitigate culpability wherethe offending was caused, at least in part, by addiction. This is because an offender'smoral culpability may be diminished where addiction is an operative factor in thecommission of the offence. However, as the Court of Appeal observed in Zhang v R,any such discount should be based on persuasive evidence, as opposed to mere self-reporting.17[44] Here there is a dearth of cogent, reliable and independent evidence linkingaddiction to the index offending. Mr Cole's assertions that addiction drove hisoffending are self-reported whether to the pre-sentence report author or in his letter tothe Court or any other source. Furthermore, while he claimed the theft of the bicyclewas driven by his need to obtain funds to feed his habit, he gave no such explanationto the report writer to account for the burglary. Notably, his letter of remorse, whilereferring to a "downward spiral" caused by addiction does not attempt to suggest theoffending was driven by addiction.[45] It follows I do not accept there was sufficient evidence before the sentencingJudge to justify a discount on account of addiction.[46] Similar observations may be made in relation to Mr Kan's submission that adiscrete discount for remorse should have been given.[47] An offender is entitled to a discount independent of that for a guilty plea if itcan be demonstrated that they are genuinely remorseful. The Supreme Court inHessell noted that remorse is not necessarily shown simply by pleading guilty andsentencing Judges will properly be sceptical about unsubstantiated claims that anoffender is genuinely remorseful. A proper and robust evaluation of the circumstancesis required.1817 Zhang v R [2019] NZCA 507; 3 NZLR 648 at [148]18 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].[48] Where there has been recidivist offending, Judges are entitled to place littleweight on expressions of remorse.19[49] Similar observations can be made in the present case, notwithstandingMr Cole's letter of remorse. This is not a case where a discount beyond that of a guiltyplea is justified.[50] It follows that this ground of appeal must also fail.Totality assessment[51] Even if I am wrong in finding that that the Judge made no error of principle, Iam satisfied that a different sentence should not be imposed.[52] Standing back and assessing the sentence as a whole and in the context oftotality, an end sentence of 27 months' imprisonment could not be said to be manifestlyexcessive in all the circumstances. The offending involved the theft of an expensivehigh end bicycle followed by the breaking and entering of a residential home and thestealing of a wide range of items of considerable worth including three firearms.Uplifts on account of personal matters could have, but were not, made. I am satisfiedthe discount for the guilty pleas was appropriate and the discounts not allowed werejustified.Result[53] The appeal is dismissed.Moore JBarristers/Solicitors:Mr Kan, AucklandCrown Solicitor, Auckland19 R v Ngamo [2009] NZCA 512 at [9]; Chapman v Police [2022] NZHC 2585; Toluono v Police[2017] NZHC 809.