Cooper v R - [2020] NZCA 510

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA64/2020
[2020] NZCA 510

BETWEEN	MICHAEL HARRISON COOPER Appellant
AND	THE QUEEN Respondent

Hearing:	23 July 2020
Court:	Cooper, Peters and Whata JJ
Counsel:	P H B Hall QC and E Huda for Appellant C Ure for Respondent
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…

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 510
Case: [2020] NZCA 510
Decision Date: 20 October 2020 at 12 pm

CaseChat Overview and Summary

The appeal by Michael Cooper against his sentence for importing 39.7 kilograms of methamphetamine into New Zealand was dismissed by the Court of Appeal of New Zealand. Cooper had pleaded guilty to the charge and was sentenced by Nation J in the High Court at Christchurch to 12 years and four months' imprisonment. The primary issue on appeal was whether the sentencing judge should have allowed Cooper a discount to acknowledge his difficult family background and his rehabilitative potential. Cooper's counsel submitted that had these matters been properly taken into account, a lesser sentence should have been imposed. The court noted that Cooper had experienced an unstable, neglectful, and abusive childhood, and that he no longer had contact with his family. However, the sentencing judge did not allow any credit for these matters, stating that there was nothing in the report to indicate that this background reduced Cooper's capacity to make rational decisions about his involvement in the importation.

The Court of Appeal held that there was no error in the sentence imposed. The court found that despite Cooper's unfortunate early childhood experiences, he was subsequently able to function as a contributing member of society, completing his high school education, studying computing at a polytechnic in Christchurch, and being gainfully employed as a builder. Although Cooper suffered addiction to drugs and alcohol for a period, he overcame that, and his only other offending concerns a single charge of driving with excess breath alcohol. The court found that the circumstances of the offending did not support the conclusion that Cooper's childhood experiences had resulted in a propensity to offend, and that the matters referred to in the pre-sentence report did not provide a sufficient justification to conclude they made a causative contribution to the offending. The Court of Appeal considered that the Judge was right to say that Cooper has the potential to make something of his life, as his past achievements indicate. Cooper should take what opportunities there are in the prison environment to improve his ability to succeed on release.

The appeal against sentence was dismissed. The Court of Appeal held that there was no error in the sentence imposed.

Orders