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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cooper v Police

Details

AGLC: Cooper v Police [2021] NZHC 2574
Case: [2021] NZHC 2574
Decision Date: 30 September 2021

CaseChat Overview and Summary

Benjamin Cooper appeals against his sentence imposed by Judge Dawson in the New Plymouth District Court. Mr Cooper was convicted on 28 charges, including burglary, theft, assault, and other criminal activities. He was sentenced to two years and three months' imprisonment. Mr Cooper appeals on the grounds that the Judge erred by not appropriately considering the issue of totality and allowing insufficient discounts for mitigating factors. The police oppose the appeal, arguing that the sentence imposed was not manifestly excessive and within the available range.

The court found that while the Judge's approach in this case was generally consistent with the principle of totality, there 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. The court found that the end sentence of 27 months' imprisonment is replaced with a sentence of 25 months' imprisonment.

The appeal is allowed, and the end sentence of 27 months' imprisonment is replaced with a sentence of 25 months' imprisonment. The final orders will be issued accordingly.

Orders