Cooper v Police

[2012] NZHC 1660

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000115 [2012] NZHC 1660

RATA COOPER

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 July 2012

Appearances: Appellant (Self-represented) in Person

J Wall for the Respondent

Judgment:      11 July 2012

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 11 July 2012 at 4.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:    Meredith   Connell   P   O    Box   2213   Shortland   Street   Auckland   1140 (DX CP24063) for the Respondent

Copy To:     R Cooper (Self-represented Appellant) 2/7 Hooks Road Manurewa 2102

COOPER v POLICE HC AK CRI-2011-404-000115 [11 July 2012]

[1]      The appellant, Rata Cooper, is self-represented.   He has appealed against convictions and sentences imposed on him in the District Court at Manukau for behaving in a threatening manner and resisting arrest. The Police oppose the appeal.

Facts

[2]      At the time of the offending, Mr Cooper was profoundly deaf.  On the night of the offences he had been drinking alcohol, though no one knows how much.  He was woken by a text message, which he found very disturbing.  He was in a state of extreme distress, due to his personal circumstances.  He rose, dressed himself and got into his vehicle. As he was leaving the property, the vehicle hit the gate and then a lamp post on the opposite side of the road.  At the appeal hearing, he told me that he had intentionally driven into the lamp post with the purpose of ending his life. Women who were at the same or a neighbouring address must have realised what was happening, as they went to his damaged vehicle and removed the keys so that he could not drive anywhere else.  There was a verbal altercation between Mr Cooper and the women, which resulted in the Police being called.

[3]      The Police evidence was as follows.   When the Police arrived, they found Mr Cooper standing in a very aggressive stance yelling at the women, who were two or three metres away from him.  He had clenched fists.  The Police had much trouble arresting Mr Cooper.  One officer told Mr Cooper to calm down, being unaware that he  was  profoundly  deaf.    Mr  Cooper  turned  and  faced  him.    Mr  Cooper  then advanced towards two officers while they backed off, trying to get him to calm down.  Mr Cooper did not calm down and did not accept their instructions to him to back off. At this point, one officer used his pepper spray on Mr Cooper.  It is unclear whether there was a warning or not when the spray was used.  The Police then took Mr Cooper to the ground and tried to handcuff him.  They describe him as putting up a determined effort to resist arrest.  They say that Mr Cooper was eventually arrested after he surrendered, having seen that the Police had a charged Taser gun.

[4]      In the District Court, Mr Cooper sought to explain his actions regarding the vehicle and altercation with the women, rather than to deny that these had occurred. He also contended that when the Police arrived, his back was to them and that the

first he realised of their presence was when the women indicated to him that he should turn around.  He said that when he did so, he was pepper sprayed in the face. He accepts that the pepper spray did not deter him and that he advanced on the Police.  However, he contends that it was their actions in pepper spraying him that led to the later resistance.

District Court decision

[5]      The defended hearing in the District Court was on 4 November 2011.  The Judge preferred the evidence of the Police officers.   This is understandable.   The Police officers gave consistent accounts of what had occurred.   The Judge found them to be reliable and credible witnesses.   The Judge rejected the evidence of Mr Cooper.  Hence, the convictions.

Appeal against conviction

[6]      At the appeal hearing, I explained to Mr Cooper the difficulty in any appeal of challenging findings of reliability and credibility of witnesses.  I told him that the evidence that the Judge had accepted fully supported the findings that each charge had been proved.

[7]      I also explained to him that if I were able to find an error in the Judge’s approach, which seemed to me to be unlikely, that it would result in the matter being sent back to the District Court for re-hearing.

[8]      Mr Cooper then advised me that his real concerns about what had occurred in the District Court were with the sentences that were imposed on him.  I was given the impression that he was prepared to abandon the appeal against conviction.  But if I am wrong on that, I find that the appeal cannot be sustained.  The Judge was in a far better position than I am to determine whose evidence he preferred.  Furthermore, given that Mr Cooper has admitted to me that he was suicidal that night, I consider that his impression of events at the time, as well as his recall of them now, may well have been affected by his emotional state.  In such circumstances, I can see no basis for interfering with the factual findings of the Judge.

Appeal against sentence

[9]      On 18 January 2012, Mr Cooper was sentenced to three months’ community detention and five months’ intensive supervision for the offending.

[10]     Mr Cooper’s appeal against sentence has merit.   I am satisfied that for the reasons set out below, it should be allowed.  The sentence of community detention will be set aside, and the sentence of intensive supervision, with special conditions, will be increased to seven months.

[11]     An appeal against a sentence is a general appeal, which shall be by way of re- hearing.  Section 121(3)(b) of the Summary Proceedings Act 1957 provides that the High Court may quash or vary a sentence where it is “clearly excessive or inadequate or inappropriate”, or if the Court is “satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the Court imposing sentence”.

[12]     The approach to be taken to appeals under s 121(3) were set out in Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 where the Court at [13]–[15] confirmed the applicability of the approach set out in R v Shipton [2007] 2

NZLR 218 (CA):

(a)       There must be an error vitiating the lower Court’s original sentencing

discretion: the appeal must proceed on an “error principle”.

(b)To establish an error in sentencing, it must be shown that the Judge in the lower Court made an error, whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)      It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[13]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

[14]     The grounds on which this Court can interfere with the sentence imposed on Mr Cooper are two-fold.  First, in imposing a sentence of community detention, the Judge said that the sentences suggested in the pre-sentence report (community work and intensive supervision) were not enough to reflect the fact that Mr Cooper has continued to offend in a violent way, since he had already served  sentences of community work in the past; and that there was a need to impose a sentence with sufficient   deterrent   and   denunciatory  force   to   satisfy  the   principles   of  the Sentencing Act 2002.  However, the Judge was assisted in reaching this result by his earlier finding that Mr Cooper did not oppose a sentence of community detention, despite the pre-sentence report stating that Mr Cooper was unsuitable for community detention.  In this regard, the Judge made a material error of fact.  Mr Cooper had opposed a sentence of community detention.  Furthermore, the pre-sentence report set out good reasons for why Mr Cooper was unsuitable for this sentence.  Thus, had the Judge not made this error of fact, he may not have settled on a sentence of community detention.  A material error of fact is an error that satisfies the criteria in Yorston.

[15]     Secondly, since the sentencing in January 2012, there has been a material change in Mr Cooper’s circumstances that is relevant to the sentences imposed on him.  Mr Cooper’s suicidal behaviour was the result of depression that can be traced back to him becoming profoundly deaf in 2005 as a result of a medical treatment injury, the consequent loss of his employment with Māori Television and then his home, followed by his wife’s death in 2010.  Since the treatment injury, Mr Cooper has been engaged with the Accident Compensation Corporation (the ACC) to see if it would  compensate  him  for  the  injury.     In  December  2011,  the  ACC  finally determined that he was entitled to cover under the Accident Compensation Act 2001. This resulted, in February 2012, in the ACC paying for Mr Cooper to have an operation inserting cochlear implants, which have restored his hearing.   When he appeared before me, he was able to hear with the assistance of the implants.  He is now studying psychology at Auckland University and hopes to bring his life back on to the track it was on before the loss of his hearing.   A sentence of community detention would significantly impede Mr Cooper’s rehabilitation.

[16]     The material error of fact, coupled with the new relevant circumstances, are enough to satisfy me that there is a proper basis for the sentence imposed in the District Court to be set aside.

[17]     I now turn to consider the sentence to impose on Mr Cooper.

[18]     Mr Cooper’s criminal history is extensive between 1985 and 1999, though the bulk of the offending was not serious. Apart from the present offending, since 1998, there has been one single incident of offending in 2005 and another in 2007.   It seems that he has taken steps to address his offending and has been reasonably successful in doing so.  The pre-sentence report reveals that from the outset, he has had a difficult life.  The pre-sentence report confirms the additional difficulties that Mr Cooper has suffered since losing his hearing.  It also confirms that he has since then suffered from bouts of depression and grief issues.  These were seen by the pre- sentence report writer as posing a barrier to undertaking some sentencing options successfully.   There were no other identified barriers to preclude him from other community-based sentences.  The report records that Mr Cooper has expressed remorse for the offending and said he regretted the offending.  He put the offending down to the fact that, at the time, he wanted to end his life, as he felt overwhelmed by his circumstances.   He was assessed as being at low to moderate risk of re- offending.

[19]     The report writer noted that Mr Cooper had previously been engaged with an organisation called “Procare”, undertaking counselling with therapist, Pam Low.  He had received treatment from between February 2008 to May 2008, October 2008 to May 2009, and July 2010 to August 2011.  Ms Low had advised that due to a lack of funding, Mr Cooper was unable to continue his therapy.   The pre-sentence report writer considered that Mr Cooper may benefit from counselling to deal with issues of grief.  The pre-sentence report writer had taken the trouble to contact Ms Low, and discussed with her the option of electronically monitored sentences.  She had advised that these types of sentencing options may not be beneficial to Mr Cooper, as being restricted to electronically monitored sentences may be detrimental to his fragile mental state.  The report writer considered that sentences of supervision or intensive supervision could be helpful to Mr Cooper as it would enable him to access alcohol

and drug programmes, grief counselling and psychological intervention.  For these reasons, the report writer had recommended intensive supervision and community work.

[20]     Section  7(1)(h)  of  the  Sentencing  Act  requires  the  Court  to  consider  a sentence that will assist in an offender’s rehabilitation and reintegration.   Whilst there are a number of purposes set out in s 7 of the Sentencing Act, I consider this purpose to be particularly relevant here.  Further, I note that under s 8(g), the Court must impose the least restrictive outcome that is appropriate in the circumstances; and under s 8(h), the Court must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular circumstances, be disproportionately severe.

[21]     I am satisfied that in the present case, given the circumstances of Mr Cooper, it would be disproportionately severe to impose on him a sentence of community detention.  Thus, that sentence is set aside.  I consider that in Mr Cooper’s case, an appropriate sentence that meets the principles and purposes of the Sentencing Act can be achieved by the imposition of a longer sentence of intensive supervision than was originally imposed.  This sentence will also achieve the other purposes set out in s 7(1) of the Sentencing Act.

[22]     Given the clear need of Mr Cooper for counselling, I consider that the most appropriate sentence in this circumstance is to increase the sentence of intensive supervision  to  one  of  seven  months’  intensive  supervision,  with  the  special conditions as per page 7 of the pre-sentence report, these being:

(i)To attend assessment for an alcohol and drug programme as directed and if deemed suitable, to complete the programme to the satisfaction of his probation officer and programme provider.  An appropriate alcohol and drug programme is to be determined by his probation officer;

(ii)To be referred for a psychological assessment and if deemed suitable, to attend and complete a psychological assessment and any treatments/counselling as recommended by the psychologist to the satisfaction of his probation officer and treatment provider; and

(iii)To participate in an assessment for any such programme, counselling or treatment if directed by his probation officer, and to complete any programme, counselling or treatment if

directed by his probation officer.

Result

[23]     The appeal against conviction is dismissed.

[24] The appeal against sentence is allowed. The sentences imposed in the District Court are set aside and, in substitution, a sentence of seven months’ intensive supervision is imposed, with the special conditions set out at [22].

Duffy J