Cooper v Serious Fraud Office - [2014] NZHC 831

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-359 [2014] NZHC 831

BETWEEN
GLENN WILLIAM COOPER

Applicant

AND

SERIOUS FRAUD OFFICE

Respondent

Hearing: 17 April 2014

Counsel:

T Clee for Applicant
T Simmonds for Respondent

Judgment:

17 April 2014

ORAL JUDGMENT OF KATZ J (Application for leave to appeal)

Acting Solicitor: M Williams, Serious Fraud Office, Auckland

Counsel: T Simmonds, Auckland
T Clee, Auckland

COOPER v SERIOUS FRAUD OFFICE [2014] NZHC 831 [17 April 2014]

Introduction

[1] On 16 January 2013, the applicant, Mr Glenn Cooper, entered guilty pleas in the Manukau District Court to five charges of dishonestly using a document pursuant to s 228(1)(a) of the Crimes Act 1961. The charges related to a mortgage fraud scheme pursuant to which Mr Cooper sold properties at inflated prices to people described by the sentencing Judge as “gullible, commercially naïve and easily persuadable”.

[2] On 29 November 2013, Mr Cooper was sentenced by Judge S A Thorburn to a term of 19 months’ imprisonment, together with an order for reparation of $25,000. Mr Cooper appealed that sentence to this Court on two grounds:

(a) the sentence imposed on him was manifestly excessive, due to insufficient discounts being provided to account for his remorse and guilty pleas;

(b)the Judge had erred in the exercise of his discretion by imposing a sentence of imprisonment (and reparation) rather than home detention.

[3] I heard Mr Cooper’s appeal on 14 April 2014 and dismissed it by judgment dated 16 April 2014. I concluded that the District Court Judge had not erred in the exercise of his discretion in relation to the discounts for Mr Cooper’s guilty pleas and remorse. Further, I held that the sentencing Judge did not err in reaching his conclusion that the seriousness of Mr Cooper’s offending was such that a sentence of home detention would not adequately reflect the need for denunciation and deterrence. A conclusion that a short term of imprisonment was appropriate in all the circumstances was well within the scope of the Judge’s sentencing discretion. I ordered Mr Cooper to surrender himself to the Registrar of this Court by 12:00 noon today, to commence his term of imprisonment.

[4] Immediately following delivery of my judgment dismissing his appeal, Mr Cooper filed an application seeking leave to appeal to the Court of Appeal. Mr Cooper also seeks bail pending the determination of any such further appeal.

Should this Court grant leave for a second appeal?

Relevant legal principles

[5] These proceedings were commenced prior to the commencement date of the Criminal Procedure Act 2011. Accordingly, pursuant to s 397 of that Act, these proceedings must continue in accordance with the law as it was before the commencement date.

[6] The relevant provision is accordingly s 144 of the Summary Proceedings Act

1957, which provides as follows:

144 Appeal to the Court of Appeal

(1) Either party may, with the leave of the [High Court], appeal to the Court of Appeal against… any determination of the [High…

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.

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Details

Case: [2014] NZHC 831
Decision Date: 17 April 2014

CaseChat Overview and Summary

The case involves Glenn William Cooper, who was sentenced to a term of imprisonment and ordered to pay reparation for his involvement in a mortgage fraud scheme. Cooper appealed his sentence to the High Court, which was dismissed. Cooper then sought leave to appeal to the Court of Appeal, which was heard by Katz J. The legal issues in this case revolve around whether the High Court should grant leave for a second appeal and whether bail should be granted pending the determination of any such appeal. The Court considered the relevant legal principles, which include the statutory policy that summary proceedings should generally be finally disposed of following the exercise of the right of appeal to the High Court. The Court also considered the submissions made by Cooper's counsel, who argued that a guideline judgment from the Court of Appeal would be of assistance to lower courts in deciding whether home detention or imprisonment is the appropriate response to this type of offending. However, the Court found that the issue raised by Cooper was not a question of law but rather went to the heart of the exercise of the sentencing Judge's discretion. The Court concluded that the issue Mr Cooper wishes to advance to appeal does not raise a question of law and certainly not one of general or public importance. Therefore, there is no basis for a grant of leave from this Court for a second appeal to the Court of Appeal. Regarding bail, the Court considered the likelihood of Cooper obtaining special leave and then succeeding in any appeal. Based on the information currently before the Court, the assessment is that the prospects of Cooper obtaining leave and then ultimately succeeding on appeal are relatively slim. The Court declined to grant bail pending the determination of any such appeal.
The Court declined the application for leave to appeal and dismissed the application for bail pending appeal. Cooper is to hand himself to the Registrar of the Court in order to commence his sentence of imprisonment.

Orders