Cook v Police - [2019] NZHC 2327

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cook v Police

Details

AGLC: Cook v Police [2019] NZHC 2327
Case: [2019] NZHC 2327
Decision Date: 16 September 2019

CaseChat Overview and Summary

Desi James Cook appeals his two years six months' imprisonment sentence for burglary and various dishonesty-related offences. The appeal hinges on the starting point being too high and the guilty plea discount being insufficient. The District Court Judge adopted a two-year starting point for burglary, uplifted by three months for other charges and Cook's extensive criminal history. Cook argues an appropriate sentence would not exceed two years' imprisonment. The Crown contends the starting point and discount were orthodox, and the sentence was not excessive.

The High Court considered the starting point and guilty plea discount. The Court found that the starting point was consistent with similar cases and the Court of Appeal's guidance. The discount of 13 per cent for a delayed guilty plea was within the Judge's discretion. The Court also found that the Judge implicitly considered broader sentencing principles, such as rehabilitation and reintegration, when imposing the sentence. The appeal was dismissed as the sentence was not manifestly excessive.

Orders