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Cooper v R

Cooper v R

Case [2014] NZCA 275 27 June 2014

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA767/2013
[2014] NZCA 275

BETWEEN	JAMES GRANT COOPER Appellant
AND	THE QUEEN Respondent

Hearing:	29 May 2014
Court:	Stevens, Courtney and Lang JJ
Counsel:	I M Brookie for Appellant M D Downs for Respondent
Judgment:	27 June 2014 at 3.00 pm

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe sentence of four years, three months’ imprisonment on the manslaughter charge is quashed and substituted with a sentence of three years, nine months’ imprisonment.
CThe sentence of four years’ imprisonment on the perverting the course of justice charge is quashed and substituted with a sentence of three years, six months’ imprisonment.
DThe sentences are to be served cumulatively.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

Following a jury trial in the High Court at Auckland James Grant Cooper was found not guilty of murder but guilty of the manslaughter of his friend, Javed Mills. He had previously pleaded guilty to one charge of attempting to pervert the course of justice. Mr Cooper had inflicted a fatal blow to the side of Mr Mills’ head during an argument and then took steps to conceal the fact of his death. Allan J imposed a sentence of four years, three months’ imprisonment on the manslaughter charge and four years’ imprisonment on the charge of attempting to pervert the course of justice, to be served cumulatively.[1]
[1]R v Cooper [2013] NZHC 2713 at [74].
Mr Cooper appeals both sentences on the grounds that they were manifestly excessive as a result of the Judge:
(a)taking starting points on both counts that were too high;
(b)failing to give any or adequate discount for prior good character;
(c)failing to give an adequate discount for remorse;[2] and
(d)failing to make an adequate reduction to reflect the totality of the offending.

The offending

[2]This ground was added, without objection, at the appeal hearing. Another ground relating to the discount for youth was not pursued.

At the time of Mr Mills’ death, he and Mr Cooper had been friends for some years.[3] Mr Mills seems to have been a talented but troubled young man, mainly due to his drug habit. In early 2009 he had nowhere to live and Mr Cooper arranged for him to stay in a small shed on his parents’ property. Mr Cooper’s father and step‑mother did not know about this.
[3]R v Cooper, above n 1, at [3].
Allan J sentenced on the basis of Mr Cooper’s unchallenged statement to the police.[4] Mr Cooper described going to the shed to talk to Mr Mills. Mr Mills became upset. There was a disagreement which turned physical. Mr Mills attacked Mr Cooper and, in self-defence, Mr Cooper punched Mr Mills twice in the head. He then administered a blow with his elbow to the side of Mr Mills’ head, intending to knock him out. Mr Mills fell to the floor and within a short time Mr Cooper realised that he was dead. The Judge accepted…

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 [2014] NZCA 275
Case: [2014] NZCA 275
Decision Date: 27 June 2014 at 3.00 pm

CaseChat Overview and Summary

Cooper v R is an appeal against sentence brought before the Court of Appeal of New Zealand. The appellant, James Grant Cooper, was found guilty of manslaughter and perverting the course of justice. Cooper had inflicted a fatal blow on his friend, Javed Mills, during an argument and then attempted to cover up the death. The Court of Appeal has allowed the appeal against the sentence, finding that the starting points used by the sentencing judge were too high and that a discount for remorse should have been allowed. The sentences have been reduced to three years, nine months for manslaughter and three years, six months for perverting the course of justice, to be served cumulatively.

The Court of Appeal considered the starting point for the manslaughter charge was too high as the circumstances of the incident were not accurately reflected by the sentencing judge. The Court of Appeal found that the third blow was delivered in the context of a fight instigated by Mills and in anticipation of a further assault by him. The Court of Appeal found that the starting point of four-and-a-half years was appropriate. The Court of Appeal also considered that the starting point for the charge of attempting to pervert the course of justice was too high and that the appropriate starting point would have been the same as that considered appropriate for the manslaughter charge, four-and-a-half years’ imprisonment. The Court of Appeal found that a small discount could have been given on the basis of remorse, but that the adjustment to the sentences would result in a sentence that fairly reflects the overall culpability without the need for a further discount.

Orders