Cooper v R
[2020] NZCA 510
•20 October 2020 at 12 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA64/2020 [2020] NZCA 510 |
| BETWEEN | MICHAEL HARRISON COOPER |
| AND | THE QUEEN |
| Hearing: | 23 July 2020 |
Court: | Cooper, Peters and Whata JJ |
Counsel: | P H B Hall QC and E Huda for Appellant |
Judgment: | 20 October 2020 at 12 pm |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooper J)
Introduction
The appellant, Michael Cooper, pleaded guilty to a charge of importing the class A controlled drug methamphetamine into New Zealand.[1] He was sentenced by Nation J in the High Court at Christchurch to 12 years and four months’ imprisonment.[2]
[1]Misuse of Drugs Act 1975, s 6(1)(a) and (2A).
[2]R v Vea [2019] NZHC 3422 [High Court judgment].
The short issue raised by his appeal against sentence is that the Judge should have allowed him a discount to acknowledge his difficult family background and his rehabilitative potential. Mr Hall QC submitted that had those matters been properly taken into account, a lesser sentence ought to have been imposed.
The facts
On 1 November 2017 the New Zealand Customs Service took control of an imported consignment of 20 boxes of safety lamps weighing a total of 250 kilograms. The consignment arrived at Christchurch from Mexico, having passed through the United States on a Singapore Airlines flight. The lamps were individually packaged in boxes. Upon examination by Customs officers, each box was found to contain a safety lamp along with two packages of methamphetamine concealed in the base of each lamp. Each package of methamphetamine weighed between 1.1 and 1.2 kilograms, and there was a total weight of 39.7 kilograms. The purity of the methamphetamine was assessed to be 80 per cent.
The summary of facts recorded that Mr Cooper and a co-defendant, Mr Seal, both participated in the planning and documentation for the importation. After the consignment’s arrival the pair liaised regularly, facilitating its delivery and the completion of the duty and regulatory processes necessary to secure release of the consignment into their custody. Mr Cooper completed the importation application documents, using his drivers’ licence for that purpose, but providing an address (that of a business operated by Mr Seal’s father) and phone number not linked to him.
Mr Seal contacted the freight forwarder DHL inquiring after the consignment and gave further details for its delivery to the address. He coordinated the payment of duty and GST and provided account details for charging purposes. The export of the packages from Mexico to the Christchurch address was arranged through DHL Express. Another co-defendant, Mr Vea, was employed as a customs brokerage manager at DHL Global New Zealand Ltd, based in Auckland. That company was not normally involved in the delivery of this sort of consignment. On 6 November 2017, Mr Vea sent an email to a generic DHL Express email portal requesting the paperwork and saying that DHL Global would be customs clearing the consignment. Mr Vea attempted to have the consignment diverted to Auckland rather than delivered to Christchurch.
On 9 November 2017 the police and customs carried out a controlled delivery of the consignment in Christchurch, having removed the methamphetamine except for 10 grams. The remainder was substituted with a substance similar in appearance.
On 14 November 2017 Mr Seal uplifted one of the boxes containing the safety lamps and substituted substance from the delivery address. He took the box to his home in Shirley. A short time later Mr Cooper and an associate visited the address. Mr Cooper uplifted the box, taking it to his home address in Northwood. Police and customs staff subsequently executed simultaneous search warrants at both addresses. During the search at Mr Cooper’s address he was seen by the police attempting to flush the substance down the bathroom toilet.
The sentence
The Judge adopted a starting point of 16 years’ imprisonment for Mr Cooper’s offending. [3] He did so on the basis that Mr Cooper’s offending was similar to that of the offender, Mr Zhang, one of the appellants in this Court’s recent guideline judgment concerning sentencing for methamphetamine offending.[4] Mr Zhang had pleaded guilty to a charge of importing 17.9 kilograms of methamphetamine. On appeal, this Court held a starting point of 15 years’ imprisonment would have been appropriate.[5] Here, the Judge considered a higher starting point was appropriate, because of the “much more significant quantity involved”.[6]
[3]High Court judgment, above n 2, at [88].
[4]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[5]At [257].
[6]High Court judgment, above n 2, at [88].
A report provided under s 27 of the Sentencing Act 2002 was before the Judge. The Judge noted that the report recorded Mr Cooper’s “unstable, neglectful and abusive childhood”, and that Mr Cooper no longer had any contact with his family.[7] He continued:[8]
The report reiterates your claims of naivety relating to the offending, but states you are apologetic, accept responsibility, and recognise the potential harm your offending could have had on the community. Your partner of three years appears to be a stabilising influence on you and is committed to supporting you throughout your custodial sentence. You have been making arrangements so she will be able to run her hairdressing business while you are in prison. You have a distinct interest in health and fitness and want to complete studies so you can become a personal trainer. And, I have been shown evidence that you have already made strides in that regard.
[7]At [67].
[8]At [67].
However, the Judge did not allow any credit for the matters referred to in the s 27 report. He stated:
[89] The cultural report provided to the Court refers to unfortunate aspects of your family background. There is however nothing in the report to indicate this background reduced your capacity to make rational decisions about whether you would involve yourself in the importation. I cannot take that background further into account as a mitigating circumstance relating to you personally.
The Judge allowed a discount of seven months to take into account the 15 months Mr Cooper had spent on electronically monitored bail.[9] That reduced the sentence to 15 years and five months’ imprisonment. The Judge then allowed a discount of 20 per cent for the plea of guilty entered some 17 months after Mr Cooper was initially charged.[10] The result was an end sentence of 12 years and four months’ imprisonment.
The appeal
[9]At [90].
[10]At [92].
The argument on appeal has a narrow compass. Mr Hall noted that the s 27 report stated that Mr Cooper was genuinely apologetic about his offending and appreciated the potential harm drugs cause to the wider community. The report also referred to Mr Cooper’s regrettable upbringing, which had been punctuated by a lack of a stable family environment and had included an adult engaging in inappropriate sexualised behaviour with Mr Cooper during his formative years. Mr Hall submitted that a sustainable inference was available that those childhood occurrences had contributed to poor emotional development that had informed the quality of Mr Cooper’s decision-making and perception of the world. These were factors that should have attracted some credit.
Mr Hall also referred to Mr Cooper’s efforts to use his time in prison to continue to educate himself against the backdrop of a stable employment history as a builder. Mr Hall noted observations made by the Judge that all three defendants before him were young enough to make something of their lives upon release from prison, so as to compensate in some way for the offending.
Mr Hall submitted that an allowance to reflect Mr Cooper’s poor family background and rehabilitative potential should have been given. To recognise these considerations, an allowance of five to 10 per cent would have been appropriate.
Ms Ure, for the respondent, resisted that approach. She acknowledged that in Zhang v R, this Court accepted that social, cultural or economic deprivation that has a “demonstrative nexus with the offending” can be relied on in mitigation of sentence.[11] However, she submitted that there was no demonstrative nexus between Mr Cooper’s background and the offending for which he was to be sentenced. She noted that, as stated in the s 27 report, Mr Cooper assessed his own conduct as naive and reckless. This demonstrated a tendency to minimise his involvement and portray himself in a favourable light to the report writer. The facts of the offending revealed that he had exercised a rational choice in undertaking the offending, apparently unaffected by any vulnerability to do with his upbringing. In the circumstances, the Judge had been correct not to allow credit for matters pertaining to childhood influences.
[11]Zhang v R, above n 4, at [162].
Ms Ure accepted that the Judge had made a broadly positive statement about Mr Cooper’s potential, but she submitted that there was nothing which would justify making an allowance for rehabilitative potential in the circumstances of this case. She emphasised that the pre-sentence report had not identified any specific rehabilitative needs. The assessed factors underlying Mr Cooper’s offending were his attitude, friends and associates. There was no evidence of the offending being a response to addictions. Further, Mr Cooper’s ongoing denial of any knowledge of drugs in the consignment led the pre-sentence report writer to conclude that Mr Cooper was not remorseful.
In all the circumstances, Ms Ure submitted that there had been no error in the sentence imposed.
Discussion
On the question of the necessary nexus, Ms Ure relied on observations made by Downs J in R v Carr in which the Judge emphasised that correlation and causation are not synonymous and that many people with disadvantaged backgrounds do not commit criminal offences, let alone very serious ones.[12] However, this Court subsequently allowed an appeal against the sentence imposed in that case.[13] With reference to the s 27 report presented in that case, this Court considered it was clear that aspects of the defendant’s life when he was much younger had contributed to the course his life subsequently took. It observed:
[65] We consider that the report gave a credible account of matters which might be considered to have impaired choice and diminished moral culpability so as to establish a causative contribution to offending, of the kind envisaged in Zhang. Where that is shown, we consider it must have an effect on the sentencing outcome. The focus of s 27 is on matters personal to the offender and while the gravity of the offending might temper the extent of any discount allowed for such considerations, that is a different proposition from saying there should be no allowance. …
[12]R v Carr [2019] NZHC 2335 at [61].
[13]Carr v R [2020] NZCA 357.
This Court also held that recognition of a causal linkage between matters referred to in a s 27 report and the offending does not require the sentencing court to be satisfied that the matters were the proximate cause of the offending.[14]
[14]At [64].
The matters in the s 27 report on which Mr Hall relied in the present case included reference to significant trauma in his early years. There were two aspects to this. The first was incidents of sexual abuse at the hands of a partner of his mother. Secondly, Mr Cooper was sent away by his mother when young to live with his father, an alcoholic whom he witnessed having sex with prostitutes.
In addition, as a young adult Mr Cooper resided in the Gold Coast in Australia and for a period would regularly experiment with drugs and alcohol. After returning to Christchurch he received a custodial prison sentence in relation to an assault. He told the writer of the report that he had then been able to recover from his addiction. He subsequently adopted what was described as a positive lifestyle including obtaining building work, and engaging in a physical fitness regime and forming a strong and supportive relationship with his partner.
The writer of the s 27 report recorded her view that the childhood trauma experienced by Mr Cooper had “negatively impacted and continues to negatively influence his life including poor decision making related to the commissioning of the offence he appears in this Court for today”. Later, she concluded:
Mr Cooper experienced significant childhood trauma for which he has never received any professional help. This is likely to have resulted in poor emotional development, detrimental coping strategies and influenced his poor decision-making.
As will often be the case, the s 27 report is largely the result of self-reporting by Mr Cooper. Having said that, insofar as the main justifications advanced for a reduction in the sentence are concerned, there is sufficient detail in the report to enable us to rely on the matters referred to. In other words, we think there is an adequate factual foundation for Mr Hall’s argument that a discount should have been given based on Mr Cooper’s childhood experiences.
However, we have not been persuaded that there should be a discount for the considerations raised in the s 27 report. We note in particular:
(a)Despite Mr Cooper’s unfortunate early childhood experiences, he was subsequently able to function as a contributing member of society. He completed his high school education achieving NCEA level 2. He went on to study computing at a polytechnic in Christchurch.
(b)Although he suffered addiction to drugs and alcohol for a period, he overcame that.
(c)Although he was convicted of assault in 2005 and 2008, his only other offending concerns a single charge of driving with excess breath alcohol. This is not the criminal history of someone whose childhood experiences have apparently resulted in a propensity to offend.
(d)He has been gainfully employed as a builder and has partially completed a project management qualification.
Mr Cooper asserted to the writer of the s 27 report that his conduct giving rise to the offending had been “naive” and “reckless”. He described having met someone whilst drinking in a city bar who had initiated a conversation about importing goods. He described that person as “friendly, professional looking and well spoken”. This chance encounter had led to the offending. Mr Cooper said he had been extremely unwise not to make more extensive enquiry about the goods being imported. On the other hand, the Judge was plainly justified in his conclusion that whatever Mr Cooper knew about the details of the importation at the outset, his behaviour after the importation occurred demonstrated that he clearly knew he was involved with illegal substances.[15]
[15]High Court judgment, above n 2, at [76].
The logic on which the report proceeds is that the offending was the result of Mr Cooper failing to properly enquire of his acquaintance what was in fact to be imported. The next step in the reasoning is that the failure to enquire can be attributed to events in his childhood which has impacted and continues to negatively influence his decision-making capacity. We have not been able to accept that reasoning. While childhood trauma can manifest itself in criminal offending later in life, the circumstances of the offending here do not support such a conclusion and we do not consider the matters referred to in the report provide a sufficient justification to conclude they made a causative contribution to the offending. The way in which those matters might have influenced the offending is essentially unexplained. That is important, given the fact that the offending here was premeditated and not impulsive, taking place over a period of time.
The other issue raised concerned rehabilitative potential. In that respect we note Ms Ure’s submission that no rehabilitative needs were identified as being appropriate in the pre-sentence report that was before the Court for sentencing. The assessed factors underlying the offending were his attitude, and friends and associates. There is no real showing of any matters that needed to be addressed by a sentence imposed for a rehabilitative purpose. We think the Judge was right to say that Mr Cooper has the potential to make something of his life, as his past achievements indicate. Mr Cooper should take what opportunities there are in the prison environment to improve his ability to succeed on release. The absence of a minimum term should encourage him to do what is necessary to secure release on parole.
Result
For the reasons we have given, we consider there was no error in the sentence imposed.
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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