Cooper v Police

[2012] NZHC 754

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-467 [2012] NZHC 754

BETWEEN  BLAIR ANTHONY COOPER Appellant

ANDTHE POLICE Respondent

Hearing:         26 March 2012

Appearances: K J Bendall for appellant

N Whittington for respondent

Judgment:      24 April 2012

JUDGMENT OF ALLAN J

Solicitors:

K J Bendall, Auckland  [email protected]
Crown Solicitor Auckland,  [email protected]

COOPER V POLICE HC AK CRI 2011-404-467 [24 April 2012]

[1]      On 22 December 2011, the appellant was sentenced by Judge Gibson in the Auckland District Court to a term of three years six months imprisonment on nine charges of burglary.   There were lesser concurrent sentences in respect of three charges of theft, one of obtaining by deception, and one of receiving.

[2]      Mr Cooper now appeals against sentence.  On his behalf, Mr Bendall argues that the sentence was too high by reason of an arithmetical error apparently made by the Judge during his sentencing remarks, and also because insufficient credit was given for certain mitigating factors.

The offending background

[3]      The burglaries all followed a virtually identical pattern.  The appellant went to the communal laundry area of various residential complexes in Auckland, and broke into coin operated washing machines there.   He obtained relatively small amounts ranging from just a dollar or two, up to about $80.  He had been imprisoned for exactly the same type of offending in 2010.  The present offences occurred very soon after his release from jail.

[4]      Each of the coin operated washing machines was damaged by the appellant. They cost an average of $400 per machine to repair.

[5]      The three charges of theft and the single charge of obtaining by deception date from 2009, prior to the appellant’s most recent sentence.   In the context of a poor employment relationship, the appellant stole three frozen drinks machines from his employer.  He also took his employer’s chainsaw and pawned it for $40.  The chainsaw was recovered and returned to its owner.

[6]      The charge of receiving concerned a sapphire and diamond bracelet, valued at more than $5000, which had been stolen in a residential burglary.   The appellant used it as security on a loan for $270.

Sentencing in the District Court

[7]      The District Court Judge took a starting point of two and a half years imprisonment, with an uplift in order to take into account aggravating factors and the need for totality.   The principal aggravating factors were the appellant’s previous convictions (including seven burglaries virtually identical to the present offences) and the fact that the appellant committed these offences almost immediately after release from serving a sentence of 13 months imprisonment for the earlier burglaries. He was on parole when the present offences were committed.

[8]      From the uplifted starting point of four years imprisonment, the Judge agreed with Mr Bendall that there should be a 20% discount for the guilty plea, noting that the charge would not have been difficult for the police to prove at trial.  It was also suggested to him that there should be a further discount for remorse, but the Judge was  unable  to  identify  “any  real  remorse”  from  the  probation  report.    He  did however accept that the appellant had taken some positive steps to overcome his drug addiction.  In the end he considered the 20% discount adequately covered both the plea of guilty and something for remorse.

[9]      The ultimate sentence was three and a half years imprisonment.  On each of the theft charges and the receiving charge the appellant was sentenced to 18 months concurrent, and to six months concurrent on the charge of obtaining by deception.

Discussion

[10]     It is at once apparent that something has gone awry in the Judge’s arithmetic. Plainly, he intended to allow a discount of 20% from the uplifted starting point of four years imprisonment.  That would have produced a discount of very close to 10 months, not the six months allowed.  I will return to that point later.

[11]     Mr Bendall accepts that the starting point of four years imprisonment was within the available range and does not challenge it.   Rather, he argues that insufficient attention was given to personal mitigating factors:

(a)      Although in the District Court he accepted that a discount for the guilty plea of 20% would be appropriate, he now argues with some force that the appellant ought to have had the full 25% discount mandated by the Supreme Court in Hessell v R;[1]

(b)There ought to have been further discrete discounts for remorse and for co-operation with the police.

[1] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[12]     The appellant’s argument for a 25% discount appears to be based principally upon the contention that the guilty plea was entered at the earliest possible time. Mr Bendall tells the Court that following the filing of initial charges on 12 May

2011, further charges were laid on 20 May.  Counsel was assigned on 2 June, and the guilty pleas were entered to all 14 charges on 21 July.  Over the intervening period, counsel obtaining disclosure from the police.

[13]     I accept that guilty pleas were entered at a relatively early point in time, but as the Judge correctly noted, this was a case in which the appellant was unlikely to make any progress at trial.  He had admitted some of the offending at the outset and there was also CCTV footage of some of it.  In my view, the Judge was fully entitled to regard 20% as representing an appropriate allowance for the guilty plea.

[14]     The respondent accepts that the appellant did assist the police by co-operating in the investigation of his offending, to the point of showing them the places at which his offences were committed, and by providing some detail of his modus operandi.  But there is little to suggest that his co-operation led to the discovery of crimes which would never have been identified otherwise.   He was an immediate suspect by reason of his recent identical offending, and the police did have some independent evidence.

[15]     Moreover, the appellant’s interests lay in ensuring that he was not charged with offences he did not commit.   Another offender was apparently committing similar offences at the same time.  Mr Cooper was aware of that offender’s name, but was unable to disclose to the police anything more than a Christian name.

[16]     Mr Bendall refers to R v Strickland, where it was said that a confession in circumstances where a  conviction might not otherwise have followed,  or where considerable police time is saved, may result in a sentencing discount.[2]   In principle that  is  so,  but  this  is  an area which  lies  very much within  the discretion  of a sentencing Judge.

[2] R v Strickland [1989] 3 NZLR 47 (CA) at 51.

[17]     A reading of the Judge’s sentencing notes suggests that he did consider the appellant’s co-operation with the police to be of some relevance, but that it was insufficient to justify a separate discount.  That conclusion was, in my view, open to him.

[18]     There is some indication that the appellant is truly remorseful.  He wrote a long letter of explanation and apology to the Judge, and he has taken some self- initiated rehabilitative steps.  However, it seems there is much more to be done yet. For example, he is on a methadone programme aimed at curing his addiction to heroin.  In that context, he was to undertake an assessment with the Salvation Army Bridge programme on 11 October 2011, but failed to present on that occasion and has made no contact since.

[19]     The writer of the pre-sentence report is of the view that Mr Cooper is at best ambivalent about his rehabilitative needs.  He is recorded as displaying little insight into his offending, and as tending to blame his recidivist offending on relationship issues, and the loss of his home and business. The report writer says that:

The Court should note he has been assessed to have questionable motivation in regards to addressing his offending behaviour due to his lack of insight and the incentive to avoid a custodial sentence.

[20]     But   there   are   also   suggestions   that   the   appellant   would   not   resist rehabilitative assistance if it was placed in front of him.

[21]     In my view, the Judge was perfectly entitled to regard the appellant’s remorse as real, but not particularly strongly felt, and to conclude that no additional discount was justified.  Sentencing Judges are quite properly cautious when assessing claims of remorse, which are easily made, but hard to verify.  Generally, before a discrete

allowance is made, a sentencing Judge will want some evidence of practical rehabilitative  steps  already taken.    Moreover,  the  remorse  argument  loses  some weight in the context of offending that occurred very soon after the appellant’s release on parole.

[22]    Here, there has been a degree of compliance by Mr Cooper with those administering the methadone programme, and that is pleasing.   But the Supreme Court in Hessell made it plain that separate allowances for remorse ought to be reserved for those cases marked by unmistakable and outstanding initiatives taken by an offender.  Discounts for remorse are not to be regarded as routine.[3]

Conclusion

[3] Hessell at [20], [64] and [75].

[23]     The Judge undoubtedly intended to allow a discount of 20% for the guilty plea, and so the final sentence must be recalculated.  He considered that there was some substance in the appellant’s remorse and co-operation arguments, but not to the extent of justifying further discrete discounts.  In my view, he was well entitled to take that approach.  In the result, a discount of ten months is appropriate.

Result

[24]     For the foregoing reasons the appeal is allowed.  The sentence of three years six months imprisonment imposed in the District Court on the nine burglary charges is quashed.  I substitute a sentence of three years two months imprisonment on each of those charges. The concurrent sentences remain undisturbed.

C J Allan J