Cooper v Police - [2015] NZHC 2955

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000095

CRI-2015-409-000096 [2015] NZHC 2955

BETWEEN
JOSHUA LUKE COOPER

Appellant

AND

NEW ZEALAND POLICE Defendant

Hearing: 24 November 2015

Appearances:

P B McMenamin for Appellant
C E Butchard for Crown

Judgment:

25 November 2015

JUDGMENT OF DUNNINGHAM J

[1] Mr Joshua Cooper appeals his sentence of two years’ and three months’

imprisonment, imposed by Judge Kellar in the District Court on 2 September 2015. [2] Mr Cooper was convicted of the following offences:
(a) Theft (x2);

(b) Unlawful taking of a motor vehicle; (c) Giving false details;
(d) Dishonestly using a document (x2);

(e) Supplying a non-approved psycho-active product; (f) Possession of a pipe; and

COOPER v NEW ZEALAND POLICE [2015] NZHC 2955 [25 November 2015]

(g) Theft under $500.

[3] The chronology of the relevant facts runs as follows:

29 November 2014 Mr Cooper stole four jackets from the Macpac store, whose combined value was $2,300;

12 December 2014 Mr Cooper stole jackets and packs from Macpac, whose combined value was over $4,000;

16 December 2014 Mr Cooper shoplifted various meats from

Eastgate Countdown supermarket, valued at $127.90;

20 December 2014 Mr Cooper stole a wallet from a car, took a credit card out of the wallet and used it to purchase items whose value is unknown, and is presumed to be small;

27 December 2014 Mr Cooper stole a car from the car park of the Bush Inn shopping mall, crashed the car, and then gave the Police false details when they apprehended him;

27April 2015 Mr Cooper supplied a person with 4.5g of synthetic cannabis, for which he received $80. Police then found another
23 saleable bags of synthetic cannabis, totalling 22.6g, along
with a bottle fashioned into a ‘bong’ and a pipe.

District Court judgment

[4] The Judge took the lead offending to be the two instances of theft from the Macpac store, where the items stolen were collectively valued in excess of $6,000. For this offence Mr Cooper received a starting point of one year and three months. For the unlawful taking of the car and the ensuing credit card theft and use, the Judge uplifted the sentence by nine months. For the offences in respect of the synthetic cannabis, the sentence of two years was uplifted a further six months. Then, the defendant’s failure to appear and the charge of theft for items under $500 were used

to uplift the sentence by a further three months. This put the starting point at two years’ and nine months’ imprisonment.

[5] For giving false details to the Police, Mr Cooper was convicted and discharged.

[6] The Judge then further increased the sentence for the defendant’s offending while on bail by three months, which set the starting point at three years’ imprisonment.

[7] The three years starting point was adjusted to reflect a 25% discount given for Mr Cooper’s guilty plea. The end sentence was two years’ and three months’ imprisonment.

Grounds of appeal

[8] Mr Cooper appeals…

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 [2015] NZHC 2955
Case: [2015] NZHC 2955
Decision Date: 25 November 2015

CaseChat Overview and Summary

Joshua Cooper appeals against his sentence of two years and three months' imprisonment, which was imposed by Judge Kellar in the Christchurch District Court. Cooper was convicted of multiple offences, including theft, unlawful taking of a motor vehicle, giving false details, dishonestly using a document, supplying a non-approved psycho-active product, possession of a pipe, and theft under $500. The appeal concerns the overall sentence, which Cooper argues is manifestly excessive.

The legal issue before the court was whether the sentence imposed by the District Court contained any errors justifying a different sentence. The appeal hinged on whether the individual components of the sentence were excessive and whether the totality of the sentence was manifestly excessive. The court examined whether the sentence was outside the range of reasonable sentences that could have been imposed.

The court found that while some components of the sentence were within range, the uplift for the sale of synthetic cannabis was excessive, and the total sentence was manifestly excessive. The court noted that Cooper's criminal history was limited to 2014, and his offences were largely driven by drug addiction. The court determined that an uplift of no more than three months would have been adequate for the drug-related offences. Additionally, the court found that the District Court judge did not adequately consider the totality principle as required by the Sentencing Act. The court revised the sentence to one year, ten months and two weeks, reflecting a 25% discount for Cooper's guilty plea.

The court allowed the appeal and revised the sentence as follows: one year, 10 months and two weeks' imprisonment for the two thefts and unlawful taking of a motor vehicle, a concurrent sentence of three months' imprisonment for the dishonest use of a credit card, and a concurrent term of three months' imprisonment for the sale of a psycho-active substance. The remainder of the District Court sentence stands.

Orders