Cooke v Police
[2021] NZHC 1661
•6 July 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-000283
[2021] NZHC 1661
BETWEEN JOSHUA-JAMES LACELLES COOKE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 5 July 2021 Appearances:
Appellant in person
D Becker for Respondent
Judgment:
6 July 2021
JUDGMENT OF VENNING J
Appeal against sentence
This judgment was delivered by me on 6 July 2021 at 12.15 pm.
Registrar/Deputy Registrar
Date……………
Solicitors: Meredith Connell, Auckland
HBC Legal, Christopher Frans
COOKE v NEW ZEALAND POLICE [2021] NZHC 1661 [6 July 2021]
Introduction
[1] Joshua-James Cooke pleaded guilty to two charges of money laundering and one of obtaining by deception on 16 April 2021. Judge E M Thomas sentenced him to three months’ home detention.1 Mr Cooke appeals against that sentence.
[2]Mr Cooke represents himself.
Background facts
[3] On 18 November 2019 an unknown person took control over a cell phone belonging to a Mr Singh. They did so by a process that is known as SIM-swapping. That is effectively the illegal co-opting of a cell phone number onto a separate SIM card. Using that process someone transferred $62,000 out of Mr Singh’s bank accounts into various other bank accounts. Mr Cooke withdrew $5,000 of those funds from one of the accounts.
[4] A week later there was a further SIM-swap transaction belonging to another member of the public. Seventeen thousand, five hundred was withdrawn into two other accounts. Again, Mr Cooke withdrew $5,000 from one of them.
[5] In fixing the sentence the Judge noted the offences showed planning and premeditation and noted the offending was repeated. The Judge took into account that he had previously sentenced Mr Cooke to five months’ home detention in August 2020 for similar offending.2 Judge Thomas then addressed the issue of totality and considered that if Mr Cooke had been before him on all charges at the one time the end sentence would still have been one of home detention. However, having regard to totality he considered that eight months’ home detention would have been appropriate to take account of all the offending. Given that the sentence of five months’ home detention had expired, the Judge imposed the sentence of three months’ home detention.
1 New Zealand Police v Cooke [2021] NZDC 7018.
2 The offending included a number of dishonesty offences and other miscellaneous minor drug offending.
Practical issues
[6] At the time he was sentenced Mr Cooke had other active charges for which he was on bail. Mr Cooke was sentenced to home detention on 16 April 2021 but shortly afterwards, on 21 April 2021 he was arrested for a breach of bail and remanded in custody. On 6 May 2021 Mr Cooke was released temporarily from custody on compassionate grounds but did not return to custody as required and when apprehended on 11 May 2021 he was remanded in custody. Mr Cooke was only readmitted to bail on the morning of 5 July which enabled him to appear in person before the Court in support of his appeal.
Appeal points
[7] Mr Cooke submitted that the Judge was in error in referring to him withdrawing $17,500. He says he did not complete that transaction. His position is that he was simply a mule used to withdraw $5,000. Mr Cooke also submitted the Judge failed to acknowledge his personal circumstances and did not take into account his relatively early guilty pleas. As to his personal circumstances Mr Cooke advised the Court that he has an intermittent history of depression and anxiety along with ADHD leading to impulsivity and an inability to control his actions. That much was confirmed in a s 27 report of 16 July 2020.
Discussion
[8] While Mr Cooke’s personal circumstances were a relevant consideration and his condition may lessen his culpability somewhat, the offending was sufficiently serious to support a starting point of imprisonment.
[9] In R v Dawick and R v Simanu for instance, a starting point of imprisonment for the sentence with an end point of home detention or community work depending on the personal circumstances of the offender, were confirmed as appropriate.3 While Mr Cooke’s offending in this case was less serious, it still supported a starting point of imprisonment. In the circumstances of the offending, and given Mr Cooke’s
3 R v Dawick HC Hamilton CRI-2005-419-122, 2 May 2006; and R v Simanu HC Auckland CRI- 2008-004-020453, 16 December 2010.
previous history, the sentence of three months’ home detention was available to the Judge.
[10]The appeal against sentence must be dismissed.
Further practical implications of the sentence
[11] Initially Mr Becker understood that as Mr Cooke’s sentence of home detention had not been cancelled it would have been running even though he was in custody.4 However, during the course of the hearing Mr Cooke advised the Court that Ms Dougan, his probation officer, had applied to cancel and substitute his sentence of home detention under s 80F of the Sentencing Act 2002. That application has been filed in the District Court at North Shore. It has not yet been determined. Time ceases to run on the sentence until it is determined.5 The District Court rather than this Court will have to deal with that application.
[12] However, this Court notes that when the District Court comes to deal with the matter, s 80ZB(b) of the Sentencing Act may be relevant and the District Court could, if it thinks appropriate in the circumstances, regard as time served the amount of time Mr Cooke has spent in custody if the substituted sentence is to be one of less than imprisonment.6 That however must be a matter for the District Court.
[13] For those reasons the formal order of this Court is that the appeal against the sentence of three months’ home detention is dismissed.
Venning J
4 Sentencing Act 2002, s 80ZA.
5 Sentencing Act 2002, s 80ZB(a).
6 Chief Executive of the Department of Corrections v Sutherland [2018] NZCA 623 at [51].
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