Cook v Police
[2019] NZHC 2327
•16 September 2019
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2019-441-27
[2019] NZHC 2327
BETWEEN DESI JAMES COOK
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 6 September 2019 Appearances:
W R Hawkins for the Appellant F E Cleary for the Respondent
Judgment:
16 September 2019
JUDGMENT OF CULL J
[1] Mr Cook appeals his sentence of two years six months’ imprisonment for one charge of burglary and a number of dishonesty-related offences. Mr Cooke appeals his sentence on the grounds the starting point was too high and the guilty plea discount was insufficient.
[2] On 19 June 2019 Mr Cook was sentenced in the District Court at Hastings to two years two months’ imprisonment in respect of the following charges:1
(a)One charge of burglary;2
(b)Five charges of theft under $500;3
1 New Zealand Police v Cook [2019] NZDC 11811.
2 Crimes Act 1961, s 231(1)(a) and s 66; maximum penalty 10 years’ imprisonment.
3 Sections 219 and 223(d); maximum penalty three months’ imprisonment.
COOK v NEW ZEALAND POLICE [2019] NZHC 2327 [16 September 2019]
(c)Two charges of receiving stolen goods under $500;4
(d)One charge of possession of methamphetamine pipe;5 and
(e)One charges of using a document for pecuniary advantage.6
[3] For the burglary conviction, the District Court Judge adopted a starting point of two years’ imprisonment, uplifted by three months for the other offending, and three months for Mr Cook’s extensive criminal history.7 Mr Cook suggests an appropriate end sentence would not exceed two years’ imprisonment. The Crown submits the starting point and guilty plea discount were entirely orthodox and the end sentence cannot be described as manifestly excessive.
Factual background
[4] On Saturday 1 September 2018, Mr Cook was staying in a room at a lodge in Hastings. Police executed a search warrant in the room. In Mr Cook’s bedroom, police located two wrist watches previously stolen from a vehicle on the premises. The owner of these watches had also already recovered a number of stolen items belonging to him from Mr Cook’s room in the days prior. Those items included six hunting knives, a wrist watch and a set of keys that opened secure areas of the Lodge. Police also located a black sunglasses case containing a glass pipe. In explanation, Mr Cook admitted he had the stolen items in his possession but claimed to have been given them, or found them outside the building. He also said the pipe was not his.
[5] Sometime between 6.30 pm on Saturday 20 October 2018 and 6.55 pm on Sunday 21 October 2018, Mr Cook was at an orchard in Hastings. He went to a utility vehicle parked on the property and took a bank card from a wallet inside. From the rear of the car he took a petrol container and a cordless battery drill. Mr Cook then went to a liquor store in Hastings and used the stolen bank card to purchase alcohol.
4 Sections 246 and 247(c); maximum penalty three months’ imprisonment.
5 Misuse of Drugs Act 1975, s 13(1)(a) and (3); maximum penalty one year’s imprisonment or $500 fine.
6 Crimes Act 1961, s 228(b); maximum penalty seven years’ imprisonment.
7 New Zealand Police v Cook, above n 1, at [3].
[6] On Saturday 27 October 2018, Mr Cook was at a school in Hastings. He gained entry to the school shed by forcing the bolts off the main door. He left the shed, taking a petrol container with him and placed it in a nearby bush. He then walked around the school and spoke to some children playing on the grounds. He later returned to the shed and uplifted the petrol container and left the school.
[7] On Monday 12 November 2018 between 7.50 am and 5.00 pm, Mr Cook was at an address in Napier. He gained entry to the house through the laundry door at the rear of the property, damaging the door as he did so. Mr Cook removed several items from the house, including sneakers, electronics, food, and a sleeping bag. The items are together valued at $5,574.
[8] On Monday 3 December 2018, Mr Cook was at The Warehouse in Dannevirke. Mr Cook took a drone from the shelf, valued at $199. He also took various other items at a value of $397, and left without paying.
[9] On Thursday 13 December, Mr Cook was again at The Warehouse in Dannevirke. He took various items valued at $99 from the shelves, concealed them on his person, and left without paying.
District Court decision
[10] Mr Cook pleaded guilty to all charges on 19 June 2019 and was sentenced the same day.8 The Judge noted the burglary charge “rather alters the sentencing landscape” as it carries a large maximum penalty in comparison to the other charges. Citing Arahanga, he observed the starting point for burglary is between 18 months and two and a half years.9 He characterised the offending as marginally more serious than either of the two burglaries for which Mr Cook was sentenced to 21 months’ imprisonment, as there was forced entry to the house and high value property was stolen. He adopted a starting point of two years’ imprisonment.10
8 New Zealand Police v Cook, above n 1.
9 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.
10 At [3].
[11] The Judge then uplifted three months for Mr Cook’s criminal history and uplifted three months for all other charges. That brought the sentence to two years six months’ imprisonment. He then applied a moderate discount for his guilty plea, discounting four months, or 13 per cent. That reduced the sentence to two years two months’ imprisonment. The Judge also declined reparation on the grounds it was beyond any real prospect of being met by Mr Cook.11
Approach to appeal
[12] This is a first appeal against sentence under s 244 of the Criminal Procedure Act 2011. Under s 250, the appeal court must allow the appeal if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[13] A sentence appeal is an appeal against a discretion and only if there is an error of principle should the appellate court re-exercise the discretion. An error of principle includes an error of fact or law, failing to take into account a relevant consideration, or if the decision was plainly wrong.12 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.13
Analysis
Ground one: starting point too high
[14] For Mr Cook, Mr Hawkins submits the appropriate starting point for Mr Cook’s offending was 18 months’ imprisonment. Both counsel provided a number of authorities with “broadly similar offending”. Ms Cleary, for the Crown, referred to R v Nguyen, where the Court of Appeal provided guidance as to factors to consider when determining the “criminality” of a burglary charge:14
11 New Zealand Police v Cook, above n 1, at [5].
12 B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011] NZCA 272 at [11].
13 Ripia v R [2011] NZCA 101 at [15].
14 R v Nguyen CA110/01, 2 July 2001.
[17] …As we said in Mako, with reference to aggravated robbery, it is necessary to consider the combination of factors surrounding the offending conduct. In burglary cases, these include the degree of planning and sophistication in the offending, the nature of the premises entered, the kind and value of property stolen, damage done, the impact and potential impact upon occupants or owners of property, and the extent of the offending where multiple burglaries are involved.
[15] More recently, the Court of Appeal in Arahanga v R stated that the Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed are so varied.15 The Court said further that burglary of a domestic residence is a significant aggravating feature at sentencing, due to the heightened risk of confrontation with the occupants.16 The Court then said that dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months to two years and six months’ imprisonment.17
[16] There are four authorities in particular which I consider have comparable facts to the present offending, and I set them out as follows:
Case Charges Starting
point
Aggravating
features
Toala v New Zealand Police18 Burglary; plus family violence charges Burglary of a residential home, during the day. Entry gained by kicking in
two glass panels on the front door, with defendant cutting himself in the process and trailing blood
throughout the house. Electronic items stolen to the value of
approximately $5000.
High Court’s starting point on appeal –
two years’
imprisonment
Offending was in the middle of the Arahanga range, with damage to property and theft of valuable items. Tawhara v New Zealand Police19 One charge burglary Access gained to a residential house High Court’s starting point on appeal –
15 Arahanga v R, above n 9.
16 At [78].
17 At [78].
18 Toala v New Zealand Police [2013] NZHC 3270.
19 Tawhara v New Zealand Police [2015] NZHC 2246.
through an unlocked door and theft of a widescreen TV. No PCs for burglary, but five previous dishonesty-related offences.
Mr Tawhara had previously been boarding at the address, and claimed he had loaned the victim money she
would not repay.
18 months’
imprisonment.
McFall v New Zealand Police20 Two charges of burglary; plus other related charges Burglaries committed during the day with
items of value taken – passports and
electronics. Entry gained by smashing window.
High Court’s starting point on appeal – one year nine months’
imprisonment.
There were two burglaries, both of which were domestic properties; the risk of confronting the occupants, the fact the burglaries happened during
the day, and the nature of the items taken.
Stepanicic v R:21 Two charges of burglary; plus one of causing grievous bodily harm
Both burglaries took place at night when the victims were home.
Items stolen – clothing, keys, wallets, and
electronics.
Court of Appeal’s starting point
– two years’
imprisonment.Victim impact statements reveal there was a significant effect on the peace of mind of the occupants.
[17] In the present case, the offending took place during the day, but there was forced entry and damage to the door. Further, the property was residential and the combined value of the items taken in the burglaries was significant, valued at just over
$5,500. Those are all aggravating features to this offending.
[18] Having considered the range of authorities provided by both counsel, I consider Mr Cook’s offending falls in the middle of the Arahanga range of 18 to 30 months’
20 McFall v Police [2015] NZHC 2095.
21 Stepanicic v R [2015] NZCA 211.
imprisonment. It has a strong similarity to the facts in Toala v New Zealand Police. It is less serious than Stephanicic v R, but more serious than Tawhara v New Zealand Police, and a starting point of two years’ imprisonment was consistent with the authorities. I do not consider, therefore, that the Judge erred in the two year starting point he adopted.
Ground two: insufficient discount for guilty plea
[19] The Judge discounted four months, or 13 per cent, for his guilty plea, noting that Mr Cook originally pleaded not guilty to the lead charge of burglary. On that basis, the Judge said a moderate discount is required.22
[20] Mr Hawkins accepts the entry of a guilty plea was delayed, but argues that a discount in the range of 20 per cent should have been awarded. Mr Hawkins explains that Mr Cook was originally charged with two charges of burglary, and after the not guilty pleas were entered, one of the charges was amended to theft on 26 April 2019. Mr Hawkins argues, and I accept, that there was obvious merit in pleading not guilty to the second burglary charge, as the charge was later reduced to theft.
[21] Thus, Mr Cook had been charged with the offences on 7 September 2018, 18 December 2018 and 8 January 2019. His guilty plea to the lead offence of burglary was entered on 19 June 2019, two months after the amendment of the former burglary charge. While Mr Cook did not plead guilty at the earliest opportunity, the entry of guilty pleas followed an important process, where the charging of the offences was reassessed and resulted in an amendment of a burglary charge to one of theft.
[22] Although no percentage was put on the “moderate discount” by the Judge, in fact it was a 13 per cent discount, which was open to him, particularly given it was on Mr Cook’s tenth appearance that the guilty plea was entered. Even if I were minded to grant a greater discount, I bear in mind that the ultimate assessment is whether the sentence is manifestly excessive in all the circumstances. For the reasons I canvass under ground three, I do not consider the Judge’s moderate discount for guilty plea was in error.
22 New Zealand Police v Cook, above n 1, at [3].
Ground three: manifestly excessive in all the circumstances
[23] Mr Hawkins submits that there appears to be no reference to broader sentencing principles in the decision, such as the need to impose the least restrictive outcome or the need to promote the rehabilitation of Mr Cook. He argues that had explicit reference to those principles been made, a sentence of two years’ imprisonment or less would have been imposed.
[24] Although the Judge did not explicitly make reference to the principles of sentencing, he clearly took into account Mr Cook’s previous offending, noting that he was recently sentenced to 21 months’ imprisonment. The Judge observed that Mr Cook was beginning to “fall into the category of recidivist burglar and thief at the age of 32”.23 In doing so, the Judge was plainly aware that, with a sentence of two years and two months’ imprisonment, Mr Cook would come to the notice of the Parole Board when a third of his sentence had elapsed. The Judge expressly stated that the Board “will fix such conditions as are appropriate around his release”.24 He also noted counsel’s submissions that Mr Cook was detoxifying and making good progress. The Judge said further that the Parole Board would be interested to have that confirmed at the appropriate time.25
[25] Mr Hawkins repeated the submission that an end sentence of less than two years would be the least restrictive sentence that the Court could impose, because Mr Cook would be released after serving half the sentence. However, serving the least restrictive sentence is but one of the sentencing considerations.
[26] On a perusal of Mr Cook’s previous convictions, I consider it is understandable that the Judge had concerns about Mr Cook’s recidivism. He had just recently been sentenced to 21 months’ imprisonment, and was released on the standard release conditions. Ms Cleary brought to my attention that Mr Cook committed these offences under consideration while he was under his release conditions.
23 New Zealand Police v Cook, above n 1, at [2].
24 At [4].
25 At [4].
[27] I accept Ms Cleary’s submission that Mr Cook’s appearance before the Parole Board to check on his progress and to fix appropriate conditions will benefit Mr Cook, particularly in his reintegration and rehabilitation within the community. These are important factors in sentencing. Although the Judge did not expressly refer to Mr Cook’s rehabilitation or reintegration, I consider this was at the forefront of the Judge’s mind when he imposed the sentence of two years and two months’ imprisonment, because he was concerned about the recidivist behaviour. I have reached the conclusion that Mr Cook’s sentence is not manifestly excessive in the circumstances.
Result
[28]The appeal is dismissed.
Cull J
Solicitors:
Bramwell Bate, Hastings for the Appellant
Elvidge & Partners, Napier for the Respondent
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