COTTLE v NEW ZEALAND POLICE [2018] NZHC 1928

COTTLE v NEW ZEALAND POLICE [2018] NZHC 1928 [31 July 2018]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2018-412-14 & 15[2018] NZHC 1928BETWEEN WILLIAM HILLIS COTTLEAppellantAND NEW ZEALAND POLICERespondentHearing: 30 July 2018Appearances: L A Andersen for AppellantR D Smith for RespondentJudgment: 31 July 2018JUDGMENT AND REASONS FOR JUDGMENT OFNICHOLAS DAVIDSON JJudgment[1] Judgment was delivered in Court on 31 July 2017. The Judgment is recordedin these Reasons for Judgment.Introduction[2] William Cottle was convicted on charges of intentional damage with recklessdisregard for the safety of the victim, assault with intent to injure, wilful damage, andtwo charges each of possession of an offensive weapon and reckless driving. TheDistrict Court Judge sentenced Mr Cottle to two years and two months imprisonment.11 Police v Cottle [2018] NZDC 9685.He appeals this sentence on the basis of an error was made in calculating the finalsentence, and that the final sentence was manifestly excessive.Facts[3] At about 5:30pm on 6 July 2017, the 19-year-old appellant was driving his caralong Glenelg Street in Dunedin when he saw someone who he believed owed himmoney driving towards him in a Hilux. He swerved across the centre line, causing thevictim to take evasive action to avoid a collision, and narrowly avoided a collisionwith a parked car. The appellant made a U-turn and followed the victim to themotorway, where he passed his car and pulled just in front of him, causing him tobrake heavily to avoid a nose to tail collision. He followed the victim to Mosgiel,where he stopped. The appellant stopped behind him, before driving into the Hiluxwith enough force to move it forward about a metre. He reversed and rammed intothe Hilux twice more. The victim and an associate were still in the vehicle at the time.When they got out of the Hilux, uninjured, the appellant drove away. This resulted inone of the reckless driving charges.[4] At about 10.30pm on 6 November 2017, the appellant was driving in theDunedin CBD. He saw his ex-partner with a male associate in a car and becamejealous, intentionally ramming the car from behind when stopped at a red traffic signal.He reversed before ramming into the car again, causing more damage to the rearbumper. The victims fled in the car to avoid being rammed again. This resulted in thesecond reckless driving charge.[5] Later that evening, the appellant drove to his ex-partner's house and sat outsidewatching the property. At about 1.00am, his ex-partner and the man she was withdrove up to the house, to drop her off. As she got out of the car, the appellant walkedtowards the car with a large axe in one hand and a knife in the other. The male victimwas sitting in the driver's seat and locked the doors as he saw the appellantapproaching, who went to the driver's door and attempted to open it. When the doorwould not open, he raised the axe up above his head and used the cutting edge to smashthrough the driver's side window. The male victim was showered in glass.[6] He threw the axe on the ground, unlocked and opened the driver's door. Hestarted to punch the male victim to the back of his head with a closed fist. The victimattempted to get out of the car but was unable to as the appellant continued to punchhim about the head and body approximately 15 times. He sustained bruising to hischest, arms, legs and a large lump to the back of his head as a result of the assault.[7] As the appellant assaulted the male victim, the female victim picked up thediscarded axe, to get it out of the confrontation. The appellant approached her askingfor it back, but she refused. He then used his knife to cut the valve from a tyre.[8] This third incident resulted in the charges of possessing offensive weapons,intentional damage with reckless disregard for the safety of the victim, assault withintent to injure and wilful damage. When spoken to by police, the appellant denied allaccusations and said he believed he was still in a relationship with his ex-partner andthe complaints were a conspiracy against him.District Court sentencing[9] The Judge took the charge of intentional damage with reckless disregard forthe safety of the victim as the lead offence, but approached sentencing on the totalityof conduct. He stressed the seriousness of the offending, particularly the premeditatednature of the final incident. Without referring to comparable cases, the Judge adoptedan overall starting point of three years and three months imprisonment.[10] While the appellant has one previous conviction for injuring in circumstancesthat if death had occurred it would have been manslaughter, the Judge made no upliftfor it.[11] In considering mitigating factors, the Judge acknowledged the successfulrestorative justice conference between the appellant and his ex-partner. While theappellant was willing to engage in a second conference with the principal victim, thevictim was not. The pre-sentence report is largely negative, and while the appellant'scounsel criticised it, the Judge was still left with the impression that the appellant haslittle insight into his offending and any remorse he has is more by way of self-pity.[12] The Judge considered the appellant's youth (19), and positive characterreferences. However, the Judge noted that only one of the references seems to havebeen written by someone who knew the extent of his offending. Finally, the Judgerecognised that the appellant had been on electronically monitored bail for threemonths. For these mitigating factors, the Judge reduced the sentence by seven monthsto two years and eight months. The appellant entered guilty pleas relatively late in theprocess. The Judge reduced the sentence by a further seven months. By the Judge'sreasoning, the sentence should have been two years and one month imprisonment, butthe Judge recorded the final sentence as two years and two months.[13] The Judge imposed concurrent sentences of 12 months imprisonment for eachcharge of possession of offensive weapons and assault with intent to injure, and twomonths for each of the charges of reckless driving and wilful damage. He disqualifiedthe appellant from holding or obtaining a driver's licence for 12 months, and orderedreparation of $400 for repairs to the vehicle.Principles on appeal[14] Appeals against sentence are brought as of right by s 244 of the CriminalProcedure Act 2011 and determined under s 250 of the Act. An appeal against sentencemay only be allowed by this Court if it is satisfied that there has been an error in theimposition of the sentence and that a different sentence should be imposed.2 As theCourt of Appeal said in Tutakangahau v R, "an appellate court will not intervene wherethe sentence is within the range that can be properly be justified by acceptedsentencing principles".3 It is only appropriate for this Court to intervene and substituteits own views if the sentence being appealed is "manifestly excessive" and not justifiedby relevant sentencing principles.42 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [2011] NZCA 101 at [15].SubmissionsAppellant's submissions[15] Mr Andersen describes the offending as "the result of jealous rage by animmature 19 year old who could not handle another man being in the company of hisformer girlfriend". He challenges the sentence on the basis of the miscalculation, thatthe starting point imposed was too high, and that the Judge gave insufficient credit forthe appellant's youth and guilty pleas. Mr Andersen submits that the sentence shouldbe commuted to home detention.[16] Adjusting the arithmetic, the sentence should have been one of two years andone month, not two years and two months.[17] Counsel submits that the Judge failed to refer to any relevant case law to ensurean appropriate and consistent starting point was adopted, but by reference to similarcases,5 Mr Andersen submits that a starting point of no more than two years and sixmonths imprisonment would have been appropriate.[18] The Judge allowed a total discount of 18 per cent for mitigating factors, aneffective discount of 4.5 per cent for each mitigating factor. Counsel submits that wasappropriate for all the factors except the appellant's youth, which justified a discountin the range of 10 per cent, and particularly so given the appellant had only previouslybeen subject to a sentence of community work. While the Judge was critical of thelate stage at which the appellant entered the guilty pleas, counsel submits that this doesnot recognise that a not guilty plea is required to obtain discovery necessary to advisea client. The pleas came after successful negotiations to alter the original charges.Mr Andersen thus submits that the appellant was entitled to full credit for his guiltypleas.[19] Finally, counsel stresses s 8(g) of the Sentencing Act 2002, which provides thatthe Court must impose the least restrictive outcome that is appropriate in the5 Howard v R [2017] NZHC 2986; Nilsson v Police HC Rotorua CRI-2010-470-1, 8 February 2010;and Mitchell v R [2013] NZCA 583, (2013) 29 FRNZ 498.circumstances. Given the appellant's youth and minimal criminal history, homedetention is submitted appropriate.6Respondent's submissions[20] Counsel for the Crown, Mr Smith, at first submitted that the starting point andcredits given were within the available range, and the end sentence could not bedescribed as manifestly excessive, however, the Court could correct the arithmeticalerror and substitute the sentence with one of two years and one month imprisonment.[21] Mr Smith distinguishes each of the cases cited by counsel for the appellant ontheir facts. Notably, all three cases cited involved a singular incident, whereas thisoffending involved separate incidents. Counsel mentions other similar cases withstarting points of over three years.7[22] In stressing the seriousness of the final incident, counsel refers to the fact thatthe appellant lay in wait for the victims, and there was a real risk of serious injuries ordeath to the victim. The assault with intent to injure was prolonged and involved aviolent attack to the head. Counsel suggests that a starting point of up to three yearswas available for this offending alone. Additionally, there were two separate andparticularly bad examples of reckless driving, involving ramming of cars. Counselsubmits that an uplift of three months on each charge would be within range. As such,the starting point of three years and three months imprisonment was available. I agree.[23] Counsel submits that the Judge could have made a separate uplift to reflect theappellant's previous conviction, as the sentence of community work for violentoffending had not deterred him. Particularly in light of the Judge's decision not to doso, His Honour's credit for the appellant's mitigating factors was "perfectly withinrange".6 Counsel submitted that home detention should be considered "even if the end result is 2 years and1 month". This is not possible as s 15A(1)(b) of the Sending Act provides that home detention canonly be imposed if the court would otherwise sentence the offender to a short-term sentence ofimprisonment.7 Hollingum v Police [2013] NZHC 3235; R v Gray [2008] NZCA 311; and R v Shirley [2009]NZCA 216.[24] Regarding the discount for the guilty pleas, counsel says the discount givenagain was well within range given the delay in entering guilty pleas. The case againstthe appellant was overwhelming and any alteration to the charges was to his benefit.Mr Smith submits that allowing full credit would have resulted in an unjustifiedoutcome.[25] As such, counsel submits the end sentence of two years and one monthimprisonment was within range.[26] If the Court takes the view that a short-term sentence would be appropriate,counsel submits that only a sentence of imprisonment could realistically be imposedgiven the Provision of Advice to Courts report and the recommendation ofimprisonment. Protection of the community, deterrence and denunciation wereprimary sentencing purposes, and imprisonment is the least restrictive sentenceappropriate in the circumstances.Analysis[27] Mr Andersen referred to Nilsson v Police as a comparator for setting thestarting point, and counsel for the respondent agreed that it bore the closest similarityto the situation at hand.8 In that case, a starting point of two years and three monthsimprisonment was upheld where Mr Nilsson had carried out a random unprovokedattack. He pulled up to a vehicle on the side of the road, taking a jack handle andbreaking the driver's window. He then repeatedly struck the victim about the headand body with the jack handle. When the victim tried to move away from the appellantto the passenger's seat, he leaned in the window and continued the assault. He thenmoved to the other side of the vehicle, continuing to strike the victim. The assaultonly ceased when the victim wrestled Mr Nilsson to the ground.[28] This is a similar situation, however, the offending here was premeditated andI agree with Mr Smith that this aggravates the offending. The cases Mr Smith referredto with starting points over three years all involved home invasion, but Mr Smithsubmits they are still relevant as the victims locked themselves in their car outside the8 Nilsson v Police, above n 5.female victim's home. The assault in the present case was more substantial than in thecases cited.[29] An assault in a car does not equate with a home invasion but it may have someof its features. It seems appropriate to begin with two years and three months, asimposed in Nilsson, but uplift it to reflect the premeditation and additional use of theknife. To reflect the totality of the offending, including the two serious instances ofreckless driving, a more appropriate starting point would be one of three yearsimprisonment.[30] The discount of seven months for mitigating factors given by the Judge appearsappropriate. His Honour's reasoning on mitigating factors was sound. Given theappellant's prior violence conviction, further discount for his youth would beinappropriate.[31] The Judge allowed a further discount of seven months for his guilty pleas. Thatcannot be faulted, given the lateness of the pleas and the fact that the appellant alreadybenefitted from the charges being altered. Following that reasoning, that would bringthe sentence down to 22 months.[32] Given the appellant's age and the provisions of s 16 of the Sentencing Act,commuting the sentence to home detention is in my view appropriate. Mr Smith doesnot oppose this but suggested conditions which I have adopted. His previousconviction for violence is of concern but he has only had a sentence of communitywork imposed on him. It would be appropriate to give him an opportunity to serve hissentence in the community. The sentence should be commuted to eight months homedetention but on terms. His parents will support him and were in Court. While therewere initially concerns about the proximity of the Mosgiel address to the victims ofthe offending, after the restorative justice conference these concerns seem to beresolved.Conclusion and Disposition[33] The sentence imposed was not the least restrictive sentence available and thedesirability of keeping offenders in the community is recognised by s 16 of theSentencing Act. The purposes of sentencing are met by home detention. The appealis allowed and the sentence of two years two months imprisonment is replaced withone of eight months home detention and 200 hours community work. I have giventhought to Mr Smith's suggestion of judicial monitoring and there is purpose in this tounderstand whether Mr Cottle will respond to the sentence imposed.[34] Mr Cottle is sentenced to eight months home detention at 156 Dukes RoadSouth, Mosgiel, to commence from the date of this judgment. There is no credit fortime served under sentence.[35] The conditions of home detention are that he is:(a) Not to possess, consume or use any alcohol or drugs not prescribed tohim.(b) To attend an assessment for the departmental short rehabilitationprogrammes as directed by a Probation Officer. To attend and completeany counselling treatment or programme as recommended by theassessment as directed by and to the satisfaction of a Probation Officer.(c) To attend an assessment for any other programme, treatment,counselling as directed by a Probation Officer. To attend and completeany counselling, treatment, or programme as recommended by theassessment and as directed by and to the satisfaction of a ProbationOfficer.(d) Not to associate with or contact the victims of his offending without theprior written approval of a Probation Officer.(e) To attend and complete an appropriate alcohol and drug programme tothe satisfaction of a Probation officer. The specific details of theappropriate programme shall be determined by a Probation Officer.(f) To comply with the requirements of judicial monitoring as directed bya Probation Officer or the Sentencing Judge. The Probation Officermust prepare and provide to the Judge a progress report before31 October 2018 by submitting the report to the Dunedin District Court.If directed, you must appear before the Presiding Judge regarding thesereports on dates directed by the Dunedin District Court.(g) Conditions (b) – (e) are post detention conditions.(h) Judicial monitoring is directed under s 80D, 80ZJ and 80ZK of theSentencing Act, on the terms in Condition (f) above...Nicholas Davidson JSolicitors:RPB Law, DunedinDownie Stewart, DunedinL A Andersen, Barrister, Dunedin