Cooper v R - [2020] NZCA 683

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA158/2020
[2020] NZCA 683

BETWEEN	LOU APE COOPER Appellant
AND	THE QUEEN Respondent

Hearing:	9 November 2020
Court:	Kós P, Thomas and Gendall JJ
Counsel:	G R Anson for Appellant J M Pridgeon for Respondent
Judgment:	22 December 2020 at 3 pm

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
B The sentence of preventive detention on the charges of wounding with intent to cause grievous bodily harm and injuring with intent to cause grievous bodily harm is quashed and substituted with a sentence of 12 years and five months’ imprisonment.
CThe minimum period of imprisonment of eight years and three months remains in place.
D All other sentences imposed by the High Court remain in place and are to be served concurrently.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gendall J)

Mr Cooper was convicted in the High Court at Whangārei following guilty pleas on 15 charges relating to serious physical assaults on his partner over a seven‑month period from August 2017 to February 2018. They included one charge of wounding with intent to cause grievous bodily harm[1] and one charge of injuring with intent to cause grievous bodily harm[2] (the qualifying violent offences).[3] He was sentenced by Gordon J to preventive detention.[4] This was coupled with a minimum period of imprisonment of eight years and three months. Finite concurrent sentences of imprisonment were imposed on the remaining 13 charges.[5]
[1]Crimes Act 1961, s 188(1): maximum penalty of 14 years’ imprisonment.
[2]Section 189(1): maximum penalty of 10 years’ imprisonment.
[3]Sentencing Act 2002, s 87(5)(b).
[4] R v Cooper [2020] NZHC 329 [Sentencing notes].
[5]These were three charges of assault with intent to injure, one representative charge of contravening a protection order, two charges of male assaults female, three charges of injuring with intent to injure, one charge of threatening to do grievous bodily harm, one charge of threatening to kill, one representative charge of unlawfully possessing a firearm and one charge of possessing methamphetamine.
Mr Cooper appeals his sentence of preventive detention and argues rather that a finite term of imprisonment should have been imposed. He does not otherwise challenge the finite sentence the Judge would have imposed of 12 years and five months’ imprisonment. Nor does he seek to revisit the minimum period of imprisonment imposed of eight years and three months.
Mr Cooper’s appeal against his preventive detention sentence is brought largely on the grounds that:
(a)the Judge erred in her assessment under s 87(2)(c) of the Sentencing Act 2002 of the likelihood of Mr Cooper committing another qualifying violent offence at his sentence expiry date; and
(b)the Judge failed to take into account relevant considerations when exercising her discretion under s 87(3) of the Sentencing Act.

Background

There is no dispute as to the facts of the instant offences. We adopt the Judge’s summary:[6]
[6]Sentencing notes, above n 4.
[8] Mr Cooper, you have been in a cyclical relationship with…

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 R

Details

AGLC: Cooper v R [2020] NZCA 683
Case: [2020] NZCA 683
Decision Date: 22 December 2020 at 3 pm

CaseChat Overview and Summary

Lou Ape Cooper appeals against his sentence of preventive detention imposed by the High Court at Whangārei. Mr Cooper was convicted following guilty pleas on 15 charges relating to serious physical assaults on his partner over a seven-month period from August 2017 to February 2018. The Court of Appeal allows the appeal against sentence and substitutes a sentence of 12 years and 5 months imprisonment for the sentence of preventive detention on the charges of wounding with intent to cause grievous bodily harm and injuring with intent to cause grievous bodily harm. The Court of Appeal found the Judge erred in her assessment of the likelihood of Mr Cooper committing another qualifying violent offence at his sentence expiry date and failed to take into account relevant considerations when exercising her discretion under s 87(3) of the Sentencing Act 2002. The Court of Appeal held that with appropriate treatment in a prison environment, incentivised by the opportunity for parole, there is a real possibility that Mr Cooper is capable of changing his behaviour. The community will be better served if Mr Cooper receives a lengthy determinate sentence and is provided with the incentive and opportunity to participate in and complete rehabilitative programmes in prison.

Orders