Cooper v Police

[2021] NZHC 2574

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2021-443-30

[2021] NZHC 2574

BENJAMIN COOPER

v

NEW ZEALAND POLICE

Hearing:

29 September 2021

Counsel:

D Goodlet for Appellant

L A Blencowe for Respondent

Judgment:

30 September 2021

JUDGMENT OF CHURCHMAN J

Introduction

[1]    Mr Cooper was convicted and sentenced in the New Plymouth District Court on 29 July 2021 on 28 charges. These included two charges of burglary, 19 charges of theft, one charge of assault, one charge of using a document for pecuniary advantage, one charge of receiving, one charge of discharging a pistol, one charge of breach conditions of intensive supervision, one charge of failing to stop, and one charge of failing to answer police bail.

[2]    Judge Dawson sentenced Mr Cooper to two years and three months’ imprisonment.1

1      Police v Cooper [2021] NZDC 15631.

COOPER v NEW ZEALAND POLICE [2021] NZHC 2574 [30 September 2021]

[3]    Mr Cooper appeals that sentence, on the basis that the Judge erred by not appropriately considering the issue of totality and allowing insufficient discounts for mitigating factors.

[4]    The police oppose the appeal and say that the sentence imposed was not manifestly excessive – it was within the available range, and there were no identifiable errors in the sentence imposed.

[5]    For the reasons that I set out below, I have reached the conclusion that the only error made by the Judge was an inadequate discount for remorse and restorative justice, and for not having sufficient regard to Mr Cooper’s personal background. A discount of 10 per cent, rather than five per cent for these factors is more appropriate here.

Background

Factual background

[6]    On 10 June 2020, Mr Cooper was sentenced to one year of intensive supervision. He was inducted into that sentence on 12 June 2020, but failed to report after that date on 25 August, 1 September, 8 September, 15 September, 22 September, 29 September, and 6 October, despite warnings being issued.

[7]    On 24 October 2020, Mr Cooper was at Rebel Sports in Whanganui. He went inside the store and uplifted various items to the value of $234.98 and left without paying.

[8]    On 26 October 2020, Mr Cooper was outside the victim’s address in New Plymouth. He approached the victim on foot and began a heated verbal exchange with him. Mr Cooper struck him once to the face with a closed right fist, jolting him backwards, and then left. The victim sustained a bleeding lip and swelling to the left side of his face.

[9]    On 3 January 2021, Mr Cooper was at Rebel Sports in New Plymouth. With his partner, he went through the store selecting various items to the value of $209.97 and then left without paying.

[10]   On 4 January 2021, Mr Cooper drove into a service station at Hawera and fuelled his car with $107.88 worth of petrol and left without paying.

[11]   On 5 January 2021, having been released on bail by police, Mr Cooper failed to attend at the District Court.

[12]   On 16 January 2021, Mr Cooper went to Supercheap Auto in New Plymouth and put a brake pad valued $114 inside his pants and left without making any attempt to pay.

[13]On 19 January 2021, Mr Cooper went to a service station in Stratford and put

$75.42 worth of fuel into his car and left without paying.

[14]On 20 January 2021, Mr Cooper went to a service station in Levin and took

$91.44 worth of petrol without paying.

[15]   On 27 January 2021, Mr Cooper went to Bunnings in New Plymouth. He went into the tool shop area and collected various items to the value of $789 and left without paying. On the same day, he went to a service station in New Plymouth and took

$49.93 worth of petrol without paying.

[16]On 31 January 2021, he went a service station in Ōakura and took $111.85

worth of petrol, again without paying.

[17]   On 8 March 2021, a police patrol car drove past Mr Cooper driving his car and identified it. They turned around and attempted to stop his vehicle by activating lights and a siren. Mr Cooper failed to stop and accelerated away.

[18]   On 10 March 2021, Mr Cooper went to an address in New Plymouth uninvited. When the people at the address saw that he was in possession of a pistol which they thought was real, they demanded he leave the house. Mr Cooper obliged, but indicated

that he was not happy about it by going outside and discharging the pistol on the front lawn.

[19]On 11 March 2021, Mr Cooper went to a service station at Ōakura and pumped

$30 of petrol and left without paying.

[20]On 13 March 2021, Mr Cooper went to a gas station in New Plymouth, took

$112.80 worth of fuel and left without paying.

[21]   On 26 March 2021, Mr Cooper went to the Waitara New World and shoplifted items to the value of $243.

[22]   On 29 March 2021, Mr Cooper picked up a victim’s wallet that had been dropped on the footpath, and proceeded to use the victim’s debit card through the New Plymouth area and made four purchases and four different locations to the total value of $228.09.

[23]   On 1 April 2021, Mr Cooper was at a bar in New Plymouth. A victim left his wallet and a pack of cigarettes sitting on a bar leaner at the centre of the room and went outside to have a cigarette. Mr Cooper saw those belongings, took them, and placed them in his pocket and left the bar.

[24]   On 6 April 2021, Mr Cooper was at the Mitre 10 store in New Plymouth. He picked up various items valued at $499 and left without paying.

[25]   On 7 April 2021, Mr Cooper went to a Mitre 10 in New Plymouth. He filled his shopping trolley with a variety of items to a total value of $2,742.26. He then went to the fire exit door of the building and parked the trolley and left the store. He drove his car to the back of the store, opened the fire exit door and placed the items into his boot, but staff intervened, and he fled from the scene.

[26]   On 13 April 2021, Mr Cooper went to a Warehouse in New Plymouth, and collected items to the value of $899 and $199 and then another item worth $25.     He walked with the trolley to the exit of the store. He was stopped by security staff and requested for proof of purchase, and left without paying.

[27]On 11 May 2021, Mr Cooper was at a gas station in Invercargill and poured

$161.51 of petrol into his car and left without paying.

[28]   On 12 May he did the same again at another service station and took $113 of petrol without paying.

[29]   Between 27 and 28 May 2021, a property in Westown was burgled, and several items were stolen. Mr Cooper was later arrested and found in possession of those items.

[30]   At some stage between 9:15am and 4pm on 31 May 2021, Mr Cooper was at an address in New Plymouth and broke into the house by climbing through the toilet window. He stole various items there valued at $489.

[31]   On 1 June 2021, Mr Cooper was at an address in New Plymouth where he smashed the window at the rear of the house and climbed through and got inside. He cut himself on broken glass and left blood at the scene. While in the house, he stole various items including clothing, jewellery and electronics valued in excess of $1,000.

PAC report

[32]   According to the PAC report, Mr Cooper has previously been convicted of 67 charges from 27 sentencing dates over a 14-year period. His current charges accrued over a seven-month period of offending between October 2020 and June 2021, with five of those charges occurring while he was on EM bail.

[33]   The report assessed Mr Cooper’s offending-related needs as his drug use, lifestyle, and attitudes, and recommended that a sentence of imprisonment was appropriate to hold him accountable for the harm caused to the multiple victims of this crimes.

[34]   Describing Mr Cooper’s background, the report noted that he identified as both New Zealand Māori and Pākehā, but was unable to give any detail about his whakapapa. He recorded that his early life experiences were marred by his father’s active gang participation and physical violence against him and his mother, who would

seek shelter in women’s refuges but eventually be found by his father. The report noted that Mr Cooper was currently in a relationship with Ms Stubbings, who was said to be remanded in custody for sentencing, and also pregnant with Mr Cooper’s baby. Mr Cooper explained that his absconding from his EM bail residence was to be closer to Ms Stubbings, stating that it was not an impulsive decision and that he could not promise that he would not do it again.

[35]   Mr Cooper left school with no formal educational achievements but managed to obtain NCEA Level 1 later in life. His mother confirmed that he never suffered a traumatic brain injury as a young adult or a child. His alcohol use was assessed as being at low risk to his physical health, while his drug use (Mr Cooper reported that he had problems with using and abusing drugs but did not specify the type of drugs used) was assessed as being a medium risk to his physical health.

[36]   In terms of electronic monitoring considerations, Mr Cooper did have a proposed address (in Southland) which was technically suitable and with consenting occupants, although it was some 70 kilometres from Community Corrections in Invercargill.

[37]   The report ultimately considered Mr Cooper to be at a high risk of re-offending, given his pattern over the past five years, and his current offending spree occurring within the space of seven months.

District Court decision

[38]   After setting out Mr Cooper’s various charges, Judge Dawson emphasised the need to hold Mr Cooper responsible and accountable to his victims and the public, and denounce him for conduct “totally unacceptable to the community”. The Judge considered that while the community needed to be protected from Mr Cooper’s prolific offending, his rehabilitation also needed to be taken into account.

[39]   Turning to the aggravating and mitigating factors of the offending, the Judge noted that the burglaries involving entry into a dwelling house, Mr Cooper offending while subject to bail and intensive supervision, and the number, seriousness and relevance of his previous convictions were all aggravating factors.

[40]   In terms of mitigating factors, Mr Cooper was entitled to a 20 per cent discount for his guilty pleas, and that while he had shown some remorse, the Judge characterised this as “hollow” when Mr Cooper continued to offend in exactly the same way as before, although it was acknowledged that he attended a restorative justice meeting with two victims of his burglary.

[41]   The Judge took the two burglaries as the lead charges and adopted a starting point of 18 months’ imprisonment. An uplift of 12 months for all the other offending, and six months for Mr Cooper’s previous conviction history amounted to an adjusted starting point of 36 months.   The Judge then  applied a 20 per cent discount for     Mr Cooper’s guilty plea, three per cent for his limited remorse, and two per cent for his attempt at restorative justice, resulting in an overall discount of 25 per cent and an end sentence of two years and three months’ imprisonment for the burglary charges.

[42]   For the charges of receiving, using a document, 19 charges of theft, assault, breach of intensive supervision, and discharging a pistol, the Judge imposed sentences of two months’ imprisonment each, to be served concurrently. He convicted and discharged Mr Cooper on the charges of failing to stop and breaching bail and declined to make a reparation order.

Position of the parties

Mr Cooper

[43]   After discussing the background to the case, including the offending and PAC report,2 Ms Goodlet, counsel for Mr Cooper, accepted that the starting point for the two charges of burglary could not be challenged, as with the 12-month uplift for the remaining offending.  However, it was submitted that the uplift of six months for   Mr Cooper’s previous conviction history was manifestly excessive, and that the Judge erred in not adequately considering the issue of totality or granting inadequate discounts for remorse and other personal mitigating factors.

2      Counsel for Mr Cooper stated that he suffered a traumatic brain injury as a child, according to the PAC report. In fact, the PAC report says the opposite, and corroborates with Mr Cooper’s mother that he did not suffer from a traumatic brain injury.

[44]   In terms of totality, counsel argued that while there ought to be some uplift for Mr Cooper’s previous conviction history, six months (or 20 per cent) was too high, and submitted that in cases of burglary where recidivism is counted in the starting point for the criminal offending itself, the Courts should be careful not create a double uplift for defendant’s criminal histories, and in this case, the starting points for the burglary charges already encompassed Mr Cooper’s recidivism. A six to eight per cent discount was submitted as being appropriate in this case.

[45]   In terms of discounts, counsel submitted that a five per cent discount for remorse and restorative justice was too low. Counsel emphasised that Mr Cooper fully and appropriately took part in two separate restorative justice processes, where both sets of victims accepted and thanked Mr Cooper for his apology. Counsel submitted that Mr Cooper’s failure to attend other restorative justice conferences was a “neutral” factor and did not negative the fact that he had actively participated in the two conferences that he did attend.

[46]   The PAC report indicated Mr Cooper’s difficult background, and counsel submitted that while a s 27 report had not been obtained, the factors set out in the PAC report suggested that an additional 10 per cent ought to be granted for Mr Cooper’s background and addiction issues, on top of a 10 per cent discount for remorse and restorative justice. With these discounts applied, counsel submitted that this case should be remitted back to the District Court for further consideration as to whether Mr Cooper’s sentence ought to be commuted to one of home detention,  or allow   Mr Cooper to reapply to the District Court for a sentence of home detention via s 80I of the Sentencing Act 2002.

The police

[47]   Ms Blencowe, counsel for the police, disputed Mr Cooper’s position that the issue of totality was not adequately considered. Noting that there was no tariff decision for burglary offending,3 counsel referred to the cases of Parkinson v Police and Whakatau v Police.4 In the former, Clark J held that a starting point of 29 months’

3      See Arahanga v R [2021] NZCA 480.

4      See Parkinson v Police [2019] NZHC 1710; and Whakatau v Police HC Rotorua CRI-2010-463- 63, 4 October 2010.

imprisonment (16 months for burglary charges, 12 months for the appellant’s previous convictions and one month for cannabis offending) was excessive by a single month, holding that the starting point should have been 28 months. In the latter, Woodhouse J held that a sentence of two years and three months’ imprisonment for one burglary, two bail breaches, three thefts, and four breaches of release conditions was not manifestly excessive, although the two years’ imprisonment for the burglary charges was “probably severe”.5

[48]   According to counsel, the totality principle must be applied flexibly, and that a totality reduction should only be applied if the end sentence is wholly out of proportion to the gravity of the overall offending that a discount must be given.6

[49]   In terms of uplifts for previous convictions, counsel again referred to the case of Parkinson v Police, where Clark J observed that uplifts of 25 per cent were “common”, and that high uplifts had frequently been upheld as appropriate in recidivist burglary cases.7

[50]   Counsel submitted that the uplift of 12 months’ imprisonment in this case took into account Mr Cooper’s 26 remaining charges, three of which had a maximum penalty of seven years’ imprisonment, and all of which occurred while Mr Cooper was subject to a sentence of intensive supervision. According to counsel, while not expressly discussed, totality was clearly factored into the 12-month uplift to account for other offending, while the six-month uplift for previous offending was in the range available, particularly given the community required  continued  protection  from  Mr Cooper

[51]   In terms of Mr Cooper’s remorse, counsel submitted that genuine remorse must be more than “bare acceptance of responsibility”,8 and that it is open to a judge to place little weight on even genuine expressions of remorse in circumstances of recidivist offending.9

5 At [18].

6      Ashcroft v R [2014] NZCA 551 at [32].

7 At [7].

8      Moses v R [2020] NZCA 296 at [24].

9      R v Ngamo [2009] NZCA 512 at [9].

[52]   Counsel noted that Mr Cooper had attended restorative justice conferences for only two of his 28 charges, and an earlier attempt at restorative justice for the assault charge had been unsuccessful due to Mr Cooper’s lack of engagement. The Judge was entitled to make an assessment as to the degree and genuineness of Mr Cooper’s remorse, and did in fact turn his mind to it, but limited the discount due to Mr Cooper’s recidivist offending.

[53]   In terms of  Mr  Cooper’s  personal  background,  counsel  submitted  that  Mr Cooper’s early life experiences were not such to provide the necessary nexus to his particular offending. Mr Cooper had also had opportunities to engage in services and programmes, and counsel stated that where reasonable attempts have been made to rehabilitate an offender who chose to turn back towards drug use and crime, the Court should not reward the path taken by providing a discount.

Approach to appeal

[54]   This appeal is brought under s 250 of the Criminal Procedure Act 2011. Under this provision, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.10 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.11

Relevant law and analysis

[55]Section 85 of the Sentencing Act 2002 details the totality principle:

(1)Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3)If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative

10     Tutakangahau v R [2014] NZCA 279.

11     Ripia v R [2011] NZCA 101 at [15].

sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4)If only concurrent sentences are to be imposed,—

(a)the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b)each of the lesser offences must receive the penalty appropriate to that offence.

[56]   The Courts have recognised that this is a flexible principle that cannot be applied in a single, rigid manner. In R v Williams, the Court of Appeal rejected the argument that there is a particular way in which total sentences must be put together in respect of multiple offending.12 Instead the issue of what is an appropriate total sentence for the various charges is constructed in the particular circumstances, as a matter of individual discretion and assessment.13

[57]   The Court of Appeal reiterated this point in R v Barker, setting out the key principles of totality as:14

(a)With multiple offences the sentence must reflect the totality of the offending.

(b)In respect of multiple offences, this Court will not insist that the total sentence be arrived at in any particular way.

(c)The total sentence must represent the overall criminality of the offending and the offender.

[58]   Overall, I have concluded that the Judge’s approach in this case was consistent with the principle of totality. Counsel were correct to not dispute the starting point for the burglary charges, or the uplift for 12 months in relation to the other charges.     Mr Cooper carried out varied and numerous offences over a seven-month period, including a relatively prolific spate of thefts across the Central North Island. An uplift of 12 just months was, if anything, generous. While Judge Dawson did impose sentences on those charges as well as imposing an uplift, they were set concurrently –

12     R v Williams CA91/00, 31 May 2000 at [11].

13 At [11].

14     R v Barker CA57/01, 30 July 2001 at [10].

meaning that the overall criminality of the offending and offender was appropriately represented in the total sentence.

[59]   In terms of an uplift for Mr Cooper’s previous convictions, counsel for the police helpfully referred to Clark J’s observations in Parkinson v Police. It is worth setting them out here in full:15

The general rule for uplifts for previous convictions is that they should be proportionate in the circumstances and bear a reasonable relationship to the starting point. Uplifts of 25 percent are common. But the approach for recidivist burglary is different and high uplifts have frequently been upheld as appropriate.

[60]   Clark J then went on to refer to the case of R v Columbus, where the Court of Appeal held that while prior dishonesty offending is not of itself an element of the offence, it is directly relevant to assessing the degree of the offender’s culpability within the gravity of the particular offending, and to the purposes of deterrence and community protection.16 Therefore with this in mind, I consider that it was appropriate for the Judge to impose a relatively high uplift to reflect Mr Cooper’s extensive history of offending, given his conviction history indicates two previous convictions for theft, five previous convictions for shoplifting, and 17 previous convictions for burglary.

[61]   I now turn to whether the Judge erred in imposing inadequate discounts for Mr Cooper’s remorse, restorative justice efforts, and personal background.

[62]   The Court of Appeal in Moses v R recently clarified the role of remorse in sentencing, particularly in relation to guilty pleas. The Court noted the approach in Hessell v R,17 but considered that remorse should be considered as a separate mitigating factor to a guilty plea, or as evidence underpinning it:18

Third, remorse is a personal mitigating factor that may justify a discount separately from any guilty plea discount. Remorse is a question of fact and judgement. The defendant bears the onus of showing that it is genuine, meaning that it qualifies as remorse and he or she actually experiences it. Remorse need not be extraordinary to earn a discount, but it does require something more than the bare acceptance of responsibility inherent in the plea.

15     At [7] (footnotes omitted).

16     R v Columbus [2008] NZCA 192 at [14].

17     Hessell v R [2010] NZSC 135.

18     Moses v R, above n 8, at [24]-[26].

Courts look for tangible evidence, such as engagement in restorative justice processes.

Fourth, a guilty plea is not synonymous with remorse but may evidence it. The plea is an act of confession to a wrong done, and it is commonly associated with contrition and a desire for expiation. It follows that guilty plea and remorse discounts may be paired, and very often are: a defendant who pleads guilty at the earliest reasonable opportunity may also earn a remorse discount, while another who delays the plea until arraignment at trial may be denied both discounts.

We observe that, following Hessell, remorse may both justify its own discount and underpin a guilty plea discount where the latter is based on victims’ experience of atonement…

[63]   Earlier Court of Appeal cases have signalled that tangible evidence of genuine remorse may justify a small discount in the range of five to eight per cent.19 While I do not disagree with the Judge’s conclusion that Mr Cooper’s remorse does not appear to be significant in this case, I think his efforts to engage in restorative justice processes are worth acknowledging with a slightly larger discount. While counsel for Mr Cooper may not have obtained an s 27 report, the information contained in the PAC report relating to Mr Cooper’s background, including his difficult childhood and early engagement with gangs indicates difficulties in his pro-social development that may have contributed to his current issues with offending. A 10 per cent discount reflecting Mr Cooper’s restorative justice efforts, remorse, and background is appropriate in this case. Coupled with the 20 per cent discount for a guilty plea, this would amount to a discount of 30 per cent  or  roughly  11  months  and  reduce  the  end  sentence  to 25 months’ imprisonment.

19     See for example McArthur v R [2013] NZCA 600 at [13]–[14]; Rowles v R [2016] NZCA 208 at

[18] and R v Makoare [2020] NZHC 2289.

Result

[64]   Appeal allowed. The end sentence of 27 months’ imprisonment is replaced with a sentence of 25 months’ imprisonment.

Churchman J

Solicitors:

Crown Solicitor, New Plymouth for Respondent cc:    D Goodlet, Whanganui for Appellant