Cooper-Siggleko v R
[2012] NZCA 580
•11 December 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA578/2012 [2012] NZCA 580 |
| BETWEEN JAMIE TREV COOPER-SIGGLEKO |
| AND THE QUEEN |
| Hearing: 6 December 2012 |
| Court: Randerson, Harrison and Stevens JJ |
| Counsel: B P Kilkelly for Appellant |
| Judgment: 11 December 2012 at 11.30 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe sentences imposed in the District Court on all charges are quashed. In their place the following sentences are substituted:
(a)on the charge of injuring with intent to cause grievous bodily harm a sentence of five years and six months imprisonment is imposed; and
(b)on the charges of counselling and aiding another to obtain a pecuniary advantage by dishonestly using a document a sentence of six months imprisonment is imposed on each. Such sentences are concurrent with each other but cumulative on the injuring charge resulting in a total sentence of six years imprisonment.
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REASONS OF THE COURT
(Given by Stevens J)
Introduction
The appellant, Mr Cooper-Siggleko, appeals his sentence of six years and nine months imprisonment imposed in the District Court by Judge O’Driscoll on one charge of injuring with intent to cause grievous bodily harm (GBH) and two charges of being a party to the dishonest use of a document in order to obtain a pecuniary advantage (benefit fraud charges).[1] He advances four grounds:
(a)the sentence of six years imprisonment for the injuring count was manifestly excessive;
(b)the sentence of nine months for the benefit fraud charges was manifestly excessive;
(c)the nine month sentence should not have been made cumulative upon the six year sentence; and
(d)the overall sentence offended against the totality principle in s 85 of the Sentencing Act 2002.
Factual background
[1]R v Cooper-Siggleko DC Dunedin CRI-2011-012-628, 28 August 2012 [Sentencing decision].
The charge of injuring with intent to cause GBH occurred on 6 February 2011 when the complainant, a policewoman, and her female colleague visited the appellant’s address in Dunedin. The two police officers went there to conduct a bail check on the appellant, who at the time was on bail for another violent offence. One of the appellant’s bail conditions was that he was not to consume alcohol. The police officers conducted a breath test, which he failed.
When the complainant attempted to arrest the appellant, he knocked her to the ground and sat on top of her, trapping her arms. He then began to punch her around the head. The trial judge found that the appellant delivered at least 10 such blows.[2] The appellant was joined in the attack by his younger brother, who was only 15 years old. The second police officer was able to restrain the brother. The complainant managed to escape from the appellant and both police officers left the address. The complainant, who was hospitalised overnight, received a bleeding nose and tissue damage to her wrist.
[2]Sentencing decision at [6].
The benefit fraud charges involved both the appellant and his partner obtaining overpayments of benefits totalling in excess of $51,000. In essence, the pair continued to receive domestic purposes benefits at the rate of a single parent while they were living together in the nature of marriage. In support of an application for a solo parent rate of benefit the appellant had on at least two occasions supplied written material to the Ministry of Social Development containing false information.
Sentencing
In sentencing on the charge of injuring with intent to cause GBH, the Judge referred to this Court’s guideline sentencing judgment in R v Taueki.[3] The Judge identified three aggravating factors each of which was accepted by counsel for the defence.[4] First, that the complainant was a police officer carrying out her duties of conducting a bail check. Second, there were multiple attackers: the appellant and his brother. Third, the complainant was attacked in the region of her head. The Judge was also satisfied that the vulnerable position in which the police officer was placed on the ground and punched, if not a discrete aggravating factor, was something which increased the seriousness of the offending and the appellant’s culpability.[5]
[3]R v Taueki [2005] 3 NZLR 372 (CA).
[4]At [15].
[5] At [16]–[17].
The Judge decided that the assault fell within band two of Taueki, and at the higher end. The Judge adopted a starting point of five and a half years imprisonment.[6] This was uplifted by 12 months, to take into account that the appellant was on bail for an earlier violent assault on a female. The Judge then reduced the sentence by six months to take into account the fact that the appellant had been on restrictive terms of bail prior to trial.
[6]At [29].
On the benefit fraud charges, the Judge took a starting point of 12 months imprisonment which he reduced by three months to take account of the appellant’s guilty pleas.[7] The sentences of nine months imprisonment were concurrent with each other but cumulative on the six year sentence for injuring.[8] This was on the basis that the benefit fraud was different in type and nature to the assault charge and was a significant offence of its type.
Appellant’s submissions
[7]At [32].
[8]At [33].
Mr Kilkelly referred us to a number of appellate decisions in support of his argument that the starting point on the charge of injuring with intent to cause GBH was manifestly excessive.[9] He submitted that many of the cases where this Court had adopted a starting point of around six years involved serious injury, often producing long lasting injury and effects, involving the use of weapons such as bats and knives.
[9]Such as R v Vaituliao [2007] NZCA 525; R v Moengaroa [2007] NZCA 425; and R v Kohunui CA126/05, 1 November 2005.
He submitted that only punches were inflicted; it was not a prolonged attack; and did not result in serious injury to the victim. Thus a starting point of five and a half years was manifestly excessive, as was the uplift of 12 months. The reduction of six months to take account of previous time on bail was also inadequate in that the appellant was subject to electronically monitored bail for 13 months, which is a substantial period. Credit should also have been given for rehabilitative work undertaken by the appellant during that 13 month period prior to sentencing.
Mr Kilkelly further submitted that the sentence of nine months imprisonment for the benefit fraud charges was manifestly excessive. He attacked the starting point of 12 months contending that the appellant was not the principal offender and was only charged as a party. He accepted that a custodial sentence had to be imposed but contended that the end sentence should have been no more than three months to reflect the appellant’s role and the fact that it was his first dishonesty offence. Moreover such sentence ought not to have been on a cumulative basis. Finally, Mr Kilkelly submitted that the Judge did not have regard to s 85 of the Sentencing Act, so that the total sentence resulted in a term of imprisonment that was wholly out of proportion to the gravity of the overall criminality.
Discussion
Injuring with intent to cause GBH
We deal first with the sentence for the injuring charge. We have no doubt that the starting point of five years and six months imprisonment adopted by the Judge was appropriate. Mr Kilkelly accurately described this as a “very ugly” incident. He also accepted that there was a degree of premeditation on the appellant’s part. It involved three of the aggravating factors referred to in Taueki: the unprovoked attack on a female police officer in the course of her duties; multiple parties; and at least 10 punches to the head when the victim was pinned in a vulnerable position on the ground. The appellant was fortunate that more serious injury did not result.
The most significant of these aggravating factors was that the offending involved a police officer. As Mr Downs submitted this Court “has long recognised the need for a condign response when Police … are attacked in the execution of duty”.[10] The Court in R v Thomas affirmed the following passage:[11]
Where an attack is made on a police officer, what may otherwise have been considered to be an appropriate sentence should be increased to take into account this feature. Only in this way can the Courts do what it can to protect police officers acting in the course of their duty.
(Emphasis added.)
[10]Citing R v Thomas (2003) 20 CRNZ 538 (CA) and R v Williams CA177/96, 20 August 1996.
[11]At [31], quoting R v Williams at 5.
This Court in Taueki also emphasised that when the victim of GBH offending is a law enforcement officer carrying out his or her duties, this will be a serious aggravating factor.[12] The Court described examples falling within band two (5‑10 years imprisonment) as including:[13]
Assault on Police Officer: A GBH offence involving an attack on a police officer in the course of their duty by a single attacker with the use of a weapon, where the attack is designed to avoid apprehension for other offending, but the injuries are not life threatening or lasting, would require a starting point at the lower end of band two. Where the attack involves multiple attackers or the use of lethal weapons, a starting point at the higher end of band two would be required.
[12]At [31(l)] and see also Kepu v R [2011] NZCA 104 involving a fatal attack on a prison officer.
[13] At [39(b)].
We therefore see no basis upon which the starting point of five years and six months imprisonment should be disturbed.
The second challenge concerned the uplift of one year for the fact that the appellant was on bail for an earlier violent crime on 19 July 2010 involving an assault on a female. This offending resulted in a six month sentence of imprisonment. That sentence was imposed in April 2011, after the commission of this offending. We agree that an uplift was appropriate for the fact that the present offending occurred while on bail for further violent offending only seven months earlier. We are satisfied that such uplift should be no more than six months.
However, we consider that no further uplift was necessary for the prior offending. The basis for an uplift because of previous convictions did not exist in the present circumstances. This Court has previously explained the rationale for uplifting a sentence to take into account prior criminal history in The King v Casey[14] and R v Ward.[15] As Myers CJ said in Casey:
The Court should always be careful to see that a sentence of a prisoner who has been previously convicted is not increased merely because of those previous convictions. If a sentence were increased merely on that ground it would result in the prisoner being, in effect, sentenced again for an offence which he has already expiated. We agree that the sentence passed ought to bear some relation to the intrinsic nature of the offence and gravity of the crime. But it by no means follows that the previous convictions must be ignored. It is necessary to take them into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime, and a prisoner’s previous convictions are involved in the question of his character. Further, the previous convictions of a prisoner may indicate a predilection to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.
[14] The King v Casey [1931] NZLR 594 (CA) at 597.
[15] R v Ward [1976] 1 NZLR 588 (CA) at 591.
The above passage was cited with approval in Ward. There McCarthy P stated:[16]
We recognise that this balancing [of approaches] is not easy. No rigid lines are really possible. Moreover, the protection of the public against those likely to offend repeatedly can all too easily be seen as an additional punishment for past offences. For these reasons the law has sought to preserve the preventive aspect being given too such importance. The controlling principle which it has developed to prevent it taking charge in a dominant way is that a reasonable relationship to the penalty justified by the gravity of the offence must be maintained. The desirability of prevention must be balanced against that gravity.
[16] At 591.
It is a matter of some concern that these principles appear not to have been applied in this, and other cases.[17] We simply observe that considerable care is needed in the application of any uplift for prior convictions.
[17] As this Court noted for example in Beckham v R [2012] NZCA 290 at [81]–[85].
Next the appellant argues that a greater discount should have been allowed for time spent on electronically-monitored bail. Time spent on restrictive bail conditions may be considered a mitigating fact in sentencing. What is required of the Judge is an evaluative assessment of all the conditions.[18] We consider that the six months allowed by the Judge was sufficient.
[18]See Schuster v R [2011] NZCA 343 at [10] and [12]; see also Bennett v R [2012] NZCA 173 at [25] and Frewer v R [2012] NZCA 29 at [14]–[15].
The final point on the injuring charge is whether the Judge ought to have given a discount for the appellant’s attempts at rehabilitation, as evidenced by the letters written in support of the appellant. The Judge was well aware of this issue having specifically mentioned it in his reasons. He made no allowance for it. We see no reason to interfere with this aspect of the decision.
For the above reasons, we conclude that, apart from a reduction of six months in the uplift for offending whilst on bail, no further adjustment is appropriate.
Benefit fraud sentence
Sentencing for the benefit fraud charges was not straightforward in the present context. We discussed with counsel situations where this type of offending could have attracted a sentence of home detention.[19] The case of Heta v R involved three charges of benefit fraud where the amount dishonestly obtained was $51,000, similar to this case. A starting point of 15 months imprisonment was adopted with a final sentence of eight months. Home detention would have been the outcome if a suitable address could have been provided.
[19]For example the recent decision of this Court in Heta v R [2012] NZCA 267. See also Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163.
Mr Kilkelly accepted that a sentence of home detention was not available here. Moreover, we are not persuaded that the starting point of 12 months was outside the available range. As the discount (of three months) for the guilty plea could not be challenged, there is no basis upon which we could hold that the sentence of nine months imprisonment was manifestly excessive. Further, any sentence for the benefit fraud charges was appropriately made cumulative on the sentence for the injuring charge.
That leaves the question of totality. We agree with Mr Kilkelly that there is nothing in what the Judge said in his reasons to show that, having imposed cumulative sentences, he stood back and considered whether the total sentence resulted in a period of imprisonment wholly out of proportion to the gravity of the overall offending.[20]
[20] As required by s 85(2) of the Sentencing Act 2002.
We are satisfied that a sentence of six years and three months imprisonment would offend against the totality principle. In our view a total sentence of six years would be more proportionate to reflect the gravity of the overall offending. We therefore make a downward adjustment of three months to the sentences for the benefit fraud charges.
Result
The appeal is allowed. The sentences imposed in the District Court are quashed. In their place the following sentences are substituted:
(a)on the charge of injuring with intent to cause grievous bodily harm a sentence of five years and six months imprisonment is imposed; and
(b)on the charges of counselling and aiding another to obtain a pecuniary advantage by dishonestly using a document a sentence of six months imprisonment is imposed on each. Such sentences are concurrent with each other but cumulative on the injuring charge resulting in a total sentence of six years imprisonment.
Solicitors:
Crown Law Office, Wellington for Respondent
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