Cooke v Police

[2014] NZHC 3224

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000378 [2014] NZHC 3224

BETWEEN

CRANE CHARLES COOKE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	15 December 2014
Appearances:	A Kashyap for Appellant L M Mills for Respondent
Judgment:	15 December 2014

ORAL JUDGMENT OF VENNING J

Solicitors:           Meredith Connell, Auckland

Copy to:            A Kashyap, Auckland

COOKE v NEW ZEALAND POLICE [2014] NZHC 3224 [15 December 2014]

[1]      Crane Cooke pleaded guilty to four charges of breaching a protection order, driving with excess blood alcohol, driving with excess breath alcohol, driving contrary to  a  limited licence,  driving at  excessive speed  and  driving  whilst  his licence was suspended.

[2]      On 25 July 2014 in the District Court at Auckland Judge E P Paul sentenced Mr Cooke to imprisonment for one year, eight months.1    Mr Cooke appeals against the sentence.

[3]      The appeal was filed out of time.  Mr Kashyap has done his best to obtain an affidavit from Mr Cooke in support of the application for leave to appeal.   An affidavit has been prepared.   It has been signed by Mr Cooke, although it has not been  formally  sworn.    In  light  of  the  matters  set  out  in  that  document  and  I apprehend the Crown prepared to deal with the matter on the substantive merits, I grant leave for Mr Cooke to bring the appeal out of time.

[4]      I take the facts from the Judge’s summary.  Mr Cooke and the first protected person had been in a relationship in early 2002.  Ultimately that broke down to the extent he assaulted her.  When released on bail he returned to her house with a gun and effectively held her hostage.   The Armed Offenders Squad were called.   She obtained a final protection order against Mr Cooke in 2007.  Earlier this year, in the afternoon of 16 February 2014, Mr Cooke went to the protected person’s address. He drove down her driveway and spoke to her.  She called for her husband to come outside.   There was a conversation between the parties.   Mr Cooke was asked to leave.   The protected person went inside.   Mr Cooke remained for a further five minutes.  The police were called and it is apparent from the victim impact statement the effect that Mr Cooke’s breach of the protection order has had on her.  She lives in fear of him.

[5]      There is then the breach of the second protection order.   A second person obtained a protection order against Mr Cooke in February this year.  On 12 March Mr Cooke was in police custody on unrelated matters.  The second protected person

missed a phone call that evening.  A message was left recording “Gidday it’s me,

1      New Zealand Police v Cooke DC Auckland CRI-2014-044-000626, 25 July 2014.

give me a call back”.   The second protected person recognised the voice as Mr

Cooke’s. When spoken to he said he could not recall making the call.

[6]      To compound the matter there were then further breaches of the protection order against the second protected person.  On 2 April 2014 Mr Cooke called one of her sons on a cell phone and left a message to the effect:  “Tell your mum, give my car back or I’ll take your Volkswagen, okay, or your Volkswagen will disappear forever, okay, clear.”  His explanation for that breach was that the order was for her protection, not the son’s.

[7]      The fourth breach of the protection order was again in relation to the second protected person.  On 8 April Mr Cooke contacted another one of her sons and said: “Your mum isn’t playing ball and I’m going to get my friends in the Heads to visit her”.   The obvious inference is that he intended to scare the protected person by referring to the Head Hunter gang.

[8]      There are then the driving offences.   Mr Cooke was issued with a limited licence in March 2014.   On 11 March he was clocked driving a car in excess of

100 km/h.  Evidential breath test procedures were carried out followed by a blood sample.  The blood analysis disclosed a reading of 237.  There was then a further charge of driving with excess breath alcohol and exceeding 100 km/h, in fact Mr Cooke was clocked at 163 km/h.  The breath alcohol reading at the time was 1,069 micrograms of breath, almost three times the legal limit.  To compound matters, at the time Mr Cooke was driving whilst suspended.

[9]      In sentencing Mr Cooke the Judge took a starting point of nine months’ imprisonment for the three breaches against the second protected person and uplifted that by a further six months for the breach against the first protected person.  From the  one  year,  three  months’ imprisonment  the  Judge  then  uplifted  that  by nine months for the excess blood and breath alcohol offending and a further three months for the other driving charges.   The Judge then added a further six months to take account of the offending that occurred whilst on bail for the first charge of breach of a protection order.   Judge Paul then applied a full discount for the guilty pleas, leading to the end sentence of one year, eight months’ imprisonment. The Judge then

properly considered whether the sentence could be served in the community but rejected  that  as  an  option.    He  considered  deterrence  and  denunciation  to  be important.

[10]     In his oral submissions before the Court Mr Kashyap advanced the appeal on the  basis  the  sentence  was  manifestly  excessive,  primarily  when  the  sentence imposed on Mr Cooke was considered alongside sentences imposed in other cases and also in his written submissions noted that the Judge erred in not giving credit or failing to account for Mr Cooke’s mental state at the time of offending.

[11]     Mr Kashyap referred to the case of Taylor v New Zealand Police.2    In that case the appellant was convicted of threatening to kill, common assault and resisting police.  Mr Taylor had a significant number of prior convictions, 11 of which related to domestic violence.  There was also a physical assault in that case.  He received a sentence of 18 months’ imprisonment.

[12]     In Brewer v New Zealand Police3 Mr Brewer made threats about the victims to a third party while on parole.   A final sentence of two years, two months was adopted for the charges of threatening to kill and possession of an offensive weapon.

[13]     In Pukepuke v New Zealand Police4  the appellant was sentenced to nine months’ imprisonment on two charges of male assaults female and a further term of three months for breach of a protection order.  Mr Kashyap submitted the offending referred to in Pukepuke was significantly similar to the offending of the appellant in this case and as such a similar sentence ought to have been imposed.  He submitted a starting point of no more than one year ought to have been adopted.

[14]     I am unable to accept Mr Kashyap’s submissions and consider his reliance on the cases he has referred to to be unhelpful.  Each case must of course be dealt with on its own facts, the circumstances of the offending before the Court, the types of

offending and the offender and the offender’s background.

2      Taylor v New Zealand Police [2014] NZHC 1139.

3      Brewer v New Zealand Police HC Dunedin CRI-2011-412-25.

4      Pukepuke v New Zealand Police [2014] NZHC 1194.

[15]     In this case as Mr Mills has submitted the maximum penalty for each of the breaches of the protection order was three years’ imprisonment.  The offending in relation to the protection order breaches was against two separate victims.   In the circumstances and given the background to the offending the starting point of one year, three months’ imprisonment was certainly available to the Judge.

[16]     Further, the Judge was right to categorise the blood alcohol and excess breath alcohol offending as serious.  The levels were particularly high in both cases and the offending occurred within a very short space of time.  They were instances of further offending by driving with excess breath or blood alcohol.  To compound the matter there was driving at excess speed at the same time.

[17]     Further, the offending occurred whilst on bail.   In the circumstances of the offending and also taking account of Mr Cooke’s previous record, which includes injuring with intent to injure, threatening to kill and six previous contraventions of a protection order, the starting point for sentence taken by the Judge was clearly open to him.

[18]     As to the suggestion that the Judge erred by failing to take into account personal mitigating factors, I note that in this case the Judge gave a full discount of

25 per cent for the guilty plea.  Having regard to the considerations referred to by the Supreme Court in Hessell v R5 and that the prosecution case against Mr Cooke was strong he was fortunate to receive a discount of the level of 25 per cent for the guilty plea, so that the failure to take into account any further personal factors is of no moment.

[19]     The appeal is dismissed.

Venning J

5      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.