Cooper v Police
[2015] NZHC 2955
•25 November 2015
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 CrownJudgment:
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 his sentence on the following grounds:
(a) each of the components of the sentence was manifestly excessive and, as a consequence, the final starting point was manifestly excessive;
(b)it was manifestly excessive to uplift by three months for the offending on bail;
(c) the Judge failed to have regard to the totality principle as required by s 85 of the Sentencing Act;
(d) the Judge failed to consider rehabilitative factors;
(e) the Judge failed to have regard to the recommendation contained in the provision of advice to the Courts, which was that home detention be imposed.
Legal principles applying
[9] The appeal is governed by s 250(2) of the Criminal Procedure Act 2011, which requires the Court to allow the appeal if for any reason there is an error in the sentence which justifies that a different sentence be imposed. It is well accepted that a sentence is in error if it is manifestly excessive and outside the range of reasonable sentences that could have been imposed.1 However, whether the end sentence is manifestly excessive “is to be examined in terms of the sentence given, rather than by the process by which the sentence is reached”.2
Was each component of the sentence manifestly excessive?
Theft
[10] The Crown acknowledges that there is no tariff case for theft but, by reference to other cases, submitted that the starting point imposed of one year, three months’ imprisonment for the theft of goods worth over $6,300 was within range. In support of this submission, the Crown referred to Torbarina v Police, where, on three charges of theft of goods totalling $3,174, a starting point of 18 months’ imprisonment was held to be well within range, although it also took into account the
appellant’s nearly 50 previous convictions.3 Similarly, in Colman v Police, a starting
point of 14 months’ imprisonment was imposed for the theft of items from a shop worth $1,580.4
[11] However, as Mr McMenamin pointed out, in both cases relied on, the offender had a significantly greater criminal history which was expressed to be taken into account in setting the starting point. Mr Cooper, in contrast, only commenced offending in 2014 as a result of his drug addiction. The thefts themselves were opportunistic and unsophisticated and were readily detected through the store’s
security cameras.
1 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
2 Larkin v MSD [2015] NZHC 680 at [26].
3 Torbarina v Police [2014] NZHC 3221.
4 Colman v Police [2014] NZHC 3215.
[12] Thus, despite the relatively high value of the goods, I accept that a sentence of one year, three months’ was at the higher end of an acceptable range for this offending.
Use of credit card
[13] In written submissions, it was also noted that the credit card charges were “unsophisticated and involved relatively small sums of money”. However, the sentence imposed for that aspect of the offending included for the appellant taking a car and crashing it into the front fence of a property in Hei Hei, causing the car to be written off. I am satisfied that the nine months increase for the cumulative offending involving not just the car but the credit cards, was not excessive.
Sale of psycho-active drug
[14] The third aspect of the sentencing which the appellant challenges is the uplift of six months for the supply of synthetic cannabis, pointing out that the amount sold was a small amount of 4.5 grams for $80.00 and the appellant had only a further
22.6 grams in his possession, along with a pipe and bottle bong, implying personal use.
[15] In submitting that the uplift for this aspect of the offending was excessive, I was referred to the recent judgment in Moore v R, 5 where Brewer J, adapting the guideline judgment of R v Terewi,6 categorised offending in this area as follows:
(a) Category one (minor offending): this consists of possession of a small amount of synthetic cannabis for supply by the offender without any real element of commerciality. For example, the offender might use the drug himself and occasionally supply it to friends and associates either at cost or with a small margin for profit. A non-custodial sentence will usually be appropriate. A short sentence of home detention or imprisonment may be necessary where there is persistent
offending.
5 Moore v R [2015] NZHC 2565.
6 R v Terewi [1999] 3 NZLR 62 (CA).
(b)Category two (moderate offending): this consists of supply on a moderate scale with the object of deriving a profit. In view of the maximum penalty for this offence being two years’ imprisonment, a starting point of between six months and 12 months’ imprisonment is likely to be appropriate for this level of offending.
(c) Category three (serious offending): this consists of supply on a large, commercial scale. The supply operation will usually be sophisticated and well organised. An appropriate starting point is likely to be greater than 12 months’ imprisonment.
[16] Both the appellant and the Crown accepted that Mr Cooper could be described as being in the category of minor offending, and, by way of comparison, in Moore the appellant’s possession of a total of 2670 grams of banned psycho-active substances (that is, one hundred times as much synthetic cannabis as in the present case) was held as placing him in the higher end of the category of moderate offending.
[17] I accept, therefore, that the uplift of six months for Mr Cooper’s offending was too high. An uplift of no more than three months would have been adequate. However, this does not determine the appeal. I still need to consider whether the end sentence, in its totality, is “manifestly excessive”.
Offending while on bail
[18] Despite the appellant’s challenge to this aspect of the sentence, I accept that the three month uplift for offending while on bail was open to the Judge and was within range.
Rehabilitative prospects
[19] Although failure to have regard to the rehabilitative purpose of sentencing was raised in the appellant’s submissions, the Judge was clearly aware of the appellant’s serious drug addiction, but determined, given his offending, that a term of imprisonment was required. I would not differ from that assessment.
Home detention
[20] In terms of the request for home detention to be considered as recommended in the pre-sentence report, I accept the Crown’s submissions that it was open for the Judge to impose a sentence of imprisonment rather than home detention given the overall nature of the offending and the appellant’s poor compliance with his sentence of community work. In any event, the request for home detention was not actively pursued on appeal and I do not consider it appropriate to revisit it despite my decision below on sentence length.
The totality principle
[21] The appellant submits that, even if the individual sentences were within range, the Judge did not properly apply the totality principle in s 85, to ensure the end sentence was appropriate. The only indication that the Judge turned his mind to the appropriateness of the end sentence reached was a reference to it being “[a]t least an overall end sentence beyond a short sentence of imprisonment …”. However, it is simply not clear from that, whether the Judge has reflected on the appropriateness of the end sentence reached from a reading of the sentencing notes.
[22] The Crown, in defending the totality of the sentence, pointed out that although some of the offending was of a similar kind, that is dishonesty offending, they were not a connected series of offences but occurred over different days, and in fact, in some instances, different months. The Judge was therefore entitled to sentence on a cumulative basis and the end point was not wholly out of proportion to the gravity of the offending.
[23] Given my assessment that at least one of the uplifts was too high and my uncertainty as to whether the Judge assessed totality, I have made my own assessment of totality. Taking into account the high uplift for the sale of synthetic cannabis and the high sentence for the two thefts, along with the totality principle, I would have come to an end sentence of 30 months. Reducing that by 25 per cent to take account of the guilty pleas results in an end sentence of one year, ten months and two weeks. This is sufficiently less than the sentence imposed in the District Court for me to be satisfied that the end sentence was manifestly excessive.
[24] Accordingly, the appeal is allowed and the sentence imposed is revised as follows. On the two thefts and the unlawful taking of a motor vehicle, the appellant is convicted and sentenced to one year, 10 months’ and two weeks’ imprisonment. On the dishonest use of a credit card, a concurrent sentence of three months’ imprisonment is imposed and, on the selling of a psycho-active substance, a concurrent term of three months’ imprisonment is also imposed. In all other respects, the District Court judgment sentence stands.
Solicitors:
P B McMenamin, Christchurch
Raymond Donnelly & Co., Christchurch
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