Cook v Police HC Christchurch CRI 2010-409-217

[2010] NZHC 2208

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000217

CRI-2010-409-000218

SELA MITI COOK

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 December 2010

Counsel:         R G Glover for Appellant

T J Mackenzie for Respondent

Judgment:      9 December 2010

ORAL JUDGMENT OF PANCKHURST J

[1]      This is an appeal against an effective sentence of two years three months imposed in relation to two offences of burglary.  At the same time Judge Erber dealt with a raft of lesser offending.  The basis of the appeal is three-fold, namely that the Judge failed to take account of personal mitigating factors; that the discount allowed for guilty pleas was too little, and that no discrete allowance was made for personal remorse.  Before I can refer to the grounds of appeal, it is necessary to set the scene. There were a total of at least seven offences before the Judge.

[2]      The first was a burglary committed in July 2009 on a house in Christchurch when personal property, mainly jewellery, to a value of about $2,000 was taken.  In

SELA MITI COOK V NEW ZEALAND POLICE HC CHCH CRI-2010-409-000217  9 December 2010

August of that year the appellant was further charged with dangerous driving and failing to stop.   In December she was charged with breaching a sentence of community work in that she did not report as required.  Needless to say, she was on bail in relation to these offences from the time of her appearance on the first in time charge, the burglary.

[3]      The further four offences were committed in the Wellington area.  In April there was a burglary of a hair salon at Tawa in which it is said that property to a value of $8,000 was taken.  There were also, in the course of April, two offences of theft being the removal of items from retail premises, on one occasion a breast pump, and on another bottles of Jim Beam to a value of $70.  There was then finally an offence of theft committed in July of this year, being the taking of a car battery valued at $185.

[4]      The appellant, Sela Cook, is aged 26 years.  A reading of her pre-sentence report  is  a  somewhat  depressing  experience.     She  has  had  a  disadvantaged upbringing and a short adulthood which has been punctuated with violence at the hands of a partner and various other issues.   She has six children, five of whom reside in Wellington and in the care of her partner’s family.  Another child is in the care of her mother here in Christchurch.  If that were not enough, she also has an extensive criminal history which runs to six  or seven pages.   It includes many offences of dishonesty including, for example, seven offences of burglary which resulted in a significant prison sentence in 2004.  She has received the full gamut of sentencing options including, most recently, community-based sentences.

[5]      The report also refers to her demeanour while in remand custody awaiting sentencing on the present matters.   Various adjectives are used including that she was difficult, aggressive and volatile to prison staff.  There is also a concern that she is at high risk of further offending unless she can make dramatic changes to her lifestyle which obviously, at the moment, predisposes her to committing offences of the kind which I have referred to.

[6]      In imposing sentence on 27 October, Judge Erber noted a number of features. He was concerned to see that the appellant had been on bail when most of the

offending, save for the first burglary, was committed.  He noted various features of the appellant’s past and of the difficulties in her life which had accompanied the present spate of offending.   The Judge saw the two burglaries as clearly the most serious of the offences, given the value of the property which was taken and the nature of the offending itself.  He therefore identified these and, in relation to them, fixed a starting-point of 30 months or two years six months’ imprisonment.   He judged that an allowance of 10 per cent was appropriate in recognition of the guilty pleas  which  were  entered  in  mid  to  late-September  of  the  present  year.    This suggested an end sentence of two years and three months which was imposed in relation to the two burglary offences, with two month concurrent terms imposed with reference to all or most of the other charges.   In addition, an order was made for payment of reparation in the sum of $500 and $1,500, respectively, in relation to the two burglaries.

[7]      Mr Glover’s first ground of appeal was that the Judge took no or inadequate account of personal mitigating factors.  The appellant told the report writer that many of the offences, and I take it she must have been referring to the Wellington area ones, were committed as a result of a need for money which had been squandered by her partner, leaving the appellant with a need for funds in order to feed her children.

[8]      There was also, at least in counsel’s submissions in the District Court, if not in the pre-sentence report, reliance placed upon the circumstance that the appellant had terminated a further pregnancy a short time prior to her sentencing.   This, presumably, explains what was taken in one of the thefts to which I referred earlier. And, finally, Mr Glover relied on what might be termed mental health issues which he considered the appellant was confronting in the period that she entered her pleas and at sentencing.

[9]      It is the case that these matters were not given particular prominence in the Judge’s sentencing remarks.  There is, however, reference in the pre-sentence report to concerns as to the appellant’s psychiatric condition.  All the writer could add was that the appellant had failed to keep appointments when she was still at large and hence that such issues had not been properly investigated.   I note that the pre-

sentence report contemplates that the appellant will receive proper psychiatric and psychological evaluation following the imposition of a prison term.

[10]     With reference to the assertion that the appellant stole on account of need, the Judge I think would have been somewhat sceptical.   It is not as if the dishonesty offending was confined to the period that the appellant was in Wellington and, moreover, her theft of alcohol, for example, and a car battery does not really support her contention that she had little option but to steal in order to obtain money to feed her children.

[11]     All in all I am not persuaded that the focus given to personal mitigating factors was inadequate or, that had there been a greater focus, it would have made an appreciable difference.

[12]     With reference to the discount for the plea, this was a somewhat complicated situation.  I have already outlined the spread of offending including its chronology. If  one  focuses  upon  the  lead  offences  of  burglary,  there  was  a  delay  of  over

12 months and a delay of several months before those pleas were entered.   By contrast in relation to the last in time of the offences the delay was relatively short, a period of about two months or a fraction more.  All in all I am not brought to the point that I am persuaded that the Judge was wrong in fixing 10 per cent as the appropriate discount figure.  Mr Glover, I note, relied as well in that regard on delay which was caused when files were brought from Wellington to Christchurch and, I think, upon the appellant’s personal difficulties as well.  But even recognising these matters, I am not persuaded that the discount was inadequate.

[13]     With reference to remorse, the appellant made two comments to the report writer which are now relied upon.  These were “Miss Cook said that her offending was terrible” and, secondly, that she added “I hate myself when I read about what I’ve done”.   This does indicate, perhaps, some insight and remorse at that stage. However, again, I am not brought to the point where it would be appropriate to intervene in relation to the end sentence of 27 months’ imprisonment.

[14]     Although no longer strictly relevant, I add this.  In the District Court it was contended that a sentence of home detention would be appropriate if the term arrived at was less than two years’ imprisonment.  Having read the appendix to the report I would have had considerable concerns as to the suitability of the address which was proposed.   Moreover, accepting counsel’s submission about the issues which the appellant faces at the moment I would also have been of the view that she requires a fully structured sentence, in the hope that she can receive help in relation to the difficulties with which she is obviously struggling.

[15]     For these reasons the appeal is dismissed.

Solicitors:

Rupert Glover Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent