Cooper v Police

[2014] NZHC 3343

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-74 [2014] NZHC 3343

BETWEEN

ELAINE SOPHIE COOPER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	15 December 2014
Appearances:	M J Hine for Appellant A Hill for Respondent
Judgment:	19 December 2014

JUDGMENT OF LANG J [on appeal against sentence]

This judgment was delivered by me on 19 December 2014 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

COOPER v NEW ZEALAND POLICE [2014] NZHC 3343 [19 December 2014]

[1]      Ms  Cooper pleaded  guilty in  the  District  Court  to  a  charge of being  in possession of methamphetamine for the purpose of supply.   On 2 October 2014, Judge Spear sentenced Ms Cooper to one year eight months imprisonment.1    She appeals to this Court on the basis that the Judge erred in principle in imposing a sentence of imprisonment, and that he ought to have sentenced her to home detention instead.

Background

[2]      The charge was laid after the police executed a search warrant at a residential address in Tokoroa on 19 March 2014.  The address was that of Ms Cooper’s partner, who fled from the scene when the police arrived.   Ms Cooper remained at the address whilst the police searched it.  During the search the police found cannabis and weapons, as well as paraphernalia associated with commercial dealing in methamphetamine.

[3]      The police searched  Ms  Cooper.   They found  three small  zip  lock bags containing methamphetamine concealed in her clothing and her purse.  Two of these were hidden in Ms Cooper’s bra, whilst the third bag was found in a compartment in her purse.   The total weight of methamphetamine within the three bags was 4.66 grams.  The police also found a small quantity of new zip lock bags in Ms Cooper’s handbag.

The hearing in the District Court

[4]      At sentencing, Ms Cooper’s counsel provided the Judge with an explanation for the fact that Ms Cooper had been found in possession of the methamphetamine. He told the Judge that the methamphetamine in question belonged to Ms Cooper’s partner, and that she had endeavoured to hide it in order to protect him when the police arrived to search the house.   The Judge viewed this explanation with a considerable degree of scepticism given the fact that Ms Cooper had exercised her

right not to advance this explanation to the police at the time of her arrest.   The

1      New Zealand Police v Cooper DC Rotorua CRI-2014-077-290, 2 October 2014.

Judge observed that Ms Cooper had a relatively lengthy period of involvement with drugs, albeit not methamphetamine.   He said it would be “extraordinary” if Ms Cooper did not know exactly what was happening in the house, and if she was not involved in some way in her partner’s activities.  The Judge therefore said he would sentence Ms  Cooper on  the basis  that  she was  in  possession  of 4.66 grams  of methamphetamine, and that the drug was intended for the purposes of supply generally on the streets.

[5]      The Judge adopted a starting point of two years imprisonment.  He increased that by three months to reflect the fact that Ms Cooper has previous convictions for drug-related offending.  He then applied a discount of 25 per cent to produce the end sentence of one year eight months imprisonment.  The Judge rejected a submission

that he should convert the sentence to one of home detention.  In doing so he said:2

[25]      I tell you now that I am not going to grant home detention.  This is blatant offending.  You have a conviction history for drug offending.  As I have said, you went into this relationship with your eyes wide open and it is important that you receive the shock that a prison sentence will undoubtedly be in order to try and turn you around from the lifestyle that you have adopted.   The sentence of intensive supervision that was imposed should have had that outcome but it has not.

Submission on appeal

[6]      Mr Hine submits that the Judge erred in declining to impose a sentence of home detention.    He  points  out  that,  although  Ms  Cooper had  previously been sentenced to community work and intensive supervision, she had not yet served a sentence of home detention.   He contends the Judge ought to have imposed that lesser sentence rather than a sentence of imprisonment.

Decision

[7]      A decision whether or not to impose a sentence of home detention is the exercise of a judicial discretion, albeit a discretion fettered by the purposes and principles of sentencing in the Sentencing Act  2002.3     Appellate courts will be

reluctant to interfere with such a decision unless there is a demonstrated error of

2      New Zealand Police v Cooper, above n 1.

3      R v D (CA253/2008) [2008] NZCA 254 at [58]-[70]; James v R [2010] NZCA 206, (2010) 24

NZTC 24,271 at [17]; and Frazer v R [2013] NZCA 250 at [20]

principle on the part of the sentencer, or where the sentence imposed is plainly wrong.

[8]      I cannot say that the Judge erred  in principle in adopting a sentence of imprisonment given Ms Cooper’s history of criminal offending relating to drugs. This was the fifth occasion on which Ms Cooper had appeared before the courts for drug-related offending.   She was found in possession of a considerable amount of methamphetamine, and other indicia of drug dealing activity were also found in the house.

[9]      All of this points to the fact that Ms Cooper has chosen to associate with persons who are clearly involved with methamphetamine in commercial quantities. The fact that, even on her own explanation, she was prepared to protect such persons speaks volumes about her attitude to that type of activity.  I consider the Judge was well entitled to treat the offending as sufficiently serious to warrant a sentence of imprisonment rather than home detention.

Result

[10]     The appeal against sentence is dismissed.

Lang J

Solicitors:

Crown Solicitor, Rotorua