Cooper v Serious Fraud Office
[2014] NZHC 831
•17 April 2014
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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 RespondentJudgment:
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 Court] on a question of law arising in any general appeal:
Provided that, if the [High Court] refuses to grant leave to appeal to the
Court of Appeal, the Court of Appeal may grant special leave to appeal.
(2) A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the [High Court], or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the [High Court] may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
(3) Where the [High Court] refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the [High Court] or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
[7] In R v Slater1 the Court of Appeal stated:
Section 144 was not intended to provide a second tier of appeals from decisions of the District Court in proceedings under the Summary Proceedings Act. Parliament intended such proceedings to be brought to finality with the defendant having appealed to the High Court other than when the conditions specified in subsections 2 and 3 are met and leave to
1 R v Slater [1997] 1 NZLR 211 (CA).
appeal is granted. Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.
[8] In considering whether a question of law existed in Slater, such that leave could be granted, the Court concluded that:
No point of law is involved in the appeal. The trial Judge correctly stated the test for careless driving. What is essentially the target of Mr Slater’s complaint is the Judge’s application of that test to the facts. Hammond J was correct in the Court below in saying that the application is no more than an attempt on the part of Mr Slater to reargue questions of fact.
[9] In Waitakere City Council v Hertzke,2 the Court of Appeal observed that questions relating to the length or type of sentence do not often give rise to a question of law and very rarely one of general or public importance justifying a further appeal.
[10] A second tier appeal is concerned with resolution of points of law, rather than matters of discretion or the application of law to the facts of a specific case. For that reason second appeals on sentencing matters are very rare.3 Further, as is apparent from the wording of s 144(1), the particular appeal point needs to have been one that was raised in the general appeal to the High Court.
[11] In Candy v Auckland City Council4 McGrath J, for the Court of Appeal, noted “a statutory policy that summary proceedings should in general be finally disposed of following the exercise by one party of the right of appeal to the High Court”.5 He further said that:
[14] Under s115 of the Summary Proceedings Act a defendant convicted by the District Court has a general right of appeal against both conviction and sentence to the High Court. Thereafter, reflecting what is a statutory policy that summary proceedings should in general be finally disposed of following the exercise by one party of the right of appeal to the High Court, the High Court and this Court are given by s144 a restricted discretionary jurisdiction to grant either party leave to bring a further appeal. The Act requires that such a second appeal must be on a question of law arising in the general
2 Waitakere City Council v Hertzke [1997] NZRMA 222 (CA).
3 R v Slater [1997] 1 NZLR 211 (CA) at [215] per Gendall J; Hughes v New Zealand Police [2008] NZCA 275; Waitakere City Council v Hertzke [1997] NZRMA 222 (CA); R v Goodwin (unreported 13 October 1993 CA426/93).
4 Candy v Auckland City Council CA371/02, 25 February 2003 McGrath J.
5 At [14].
appeal (s144(1)). It follows that the judgment of the High Court which the party seeks to challenge must have been asked to address the question. It would be contrary to the policy of general finality of the first appeal to allow leave to bring a second appeal raising a new question of law not raised in the High Court. Under the terms of s144 leave to appeal to this Court may only be granted for a question of law which by reason of its general or public importance, or for any other reason ought to be submitted to the Court of Appeal for decision. (s144(3)).
[15] It is also well established that, before the High Court or this Court, in the exercise of its discretion, will grant leave or special leave to appeal, that Court will require to be satisfied that there is a tenable argument available on the question of law raised. Again it would be contrary to the statutory policy to grant leave to argue a point which was considered not seriously arguable by the Court asked to grant leave. That is so even if the question concerned is of significant interest to or affects numerous members of the public as we are prepared to assume is the case with the present application.
[12] One of the relatively rare cases where leave was given for a second appeal on a sentencing matter was R v McPhee.6 Leave was granted in that case because both the High Court Judge and counsel had overlooked the appropriate maximum sentence. The High Court Judge had been under a misapprehension that the maximum sentence was higher than it actually was and this had impacted on his sentencing decision. The Court considered that the Judge’s misapprehension about
the maximum sentence was a material mistake of law, raising a question of law sufficient to justify the grant of special leave to appeal.
Submissions
[13] Mr Cooper’s submissions in support of his application for leave to appeal state that the basis on which a further appeal is sought is as follows:
The grounds of appeal are in relation to the sentencing of imprisonment as opposed to home detention specifically in regards to the failure to consider home detention and the reasons stated for why imprisonment was necessary.
[14] That application was drafted under circumstances of some urgency and counsel, in oral argument before me today, elaborated further on the precise nature of the proposed question of law for the Court of Appeal. He articulated it as follows:
Was imprisonment the least restrictive sentencing outcome in all of the circumstances of this case?
6 R v McPhee (unreported 20 July 1981, CA38/81).
[15] Counsel for Mr Cooper submitted that this question is not only a question of law, but a question of law which is of general or public importance. On the latter issue, he submitted that there is a lack of guidance from the Court of Appeal to District Court Judges regarding these types of fraud cases. A sentencing guideline judgment from the Court of Appeal would therefore be of assistance. Certainty and consistency in sentencing are important. Counsel submitted that in three recent
Serious Fraud Office prosecutions of a broadly similar nature, namely Jarvis,7
Kumar8 and the present case, some offenders have been sentenced to home detention while others have been sentenced to a short term of imprisonment. It would therefore be helpful for lower Courts to have guidance from the Court of Appeal as to the factors that Judges should take into account in deciding whether home detention or imprisonment is the appropriate response to this type of offending.
Discussion
[16] Mr Cooper identifies the question of law for appeal as being whether imprisonment was the least restrictive sentencing outcome appropriate in all of the circumstances of this case. That is not, however, a question of law. The real issue being raised is simply “did the Judge exercise his sentencing discretion correctly in all the circumstances of this case”? Expressed in that way, it is apparent that the issue identified by Mr Cooper is not a question of law, but rather goes to the heart of the exercise of the sentencing Judge’s discretion.
[17] The Judge’ reasons for rejecting a sentence of home detention were primarily that the case was one of overt dishonesty involving the exploitation of others and that such offending should be underscored by a strong message of denunciation and deterrence which, in his view, outweighed any relevant personal circumstances. I found, on appeal, that that was a conclusion that was open to the Judge in the exercise of his sentencing discretion. I was unable to identify any error in his
approach.
7 R v Jarvis DC Invercargill CRI-2011-025-1844, 5 April 2002.
8 R v Kumar DC Auckland CRI-2013-092-005585, 2 April 2014.
[18] As the Court of Appeal has observed in a number of cases9 (discussed more fully in my 16 April 2014 judgment) the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion. Appellate review focusses, as in other sentencing appeals, on the identification of error, if any, in the Court below. There is nothing in the Sentencing Act suggesting a presumption for or against imposing home detention or imprisonment, other than the sentencing principle that the Court must impose the least restrictive outcome appropriate in the circumstances. The sentencing Judge’s conclusion that the particular circumstances of this case weighed in favour of a short term of imprisonment, rather than home detention does not, in my view, raise any arguable question of law.
[19] Nor, in my view, does the suggestion that a guideline judgment would be of assistance elevate the issue to one of general or public importance. Whether imprisonment was the least restrictive sentencing outcome in this case is obviously a matter of vital personal importance to Mr Cooper. It is not, however, a matter of general or public importance. There are already a number of Court of Appeal decisions relating to sentencing for fraud offending, several of which were cited to me in argument. However, as is apparent from my judgment of 16 April 2014, such cases tend to be highly fact specific. This is reflected in the varying sentencing outcomes.
[20] The sentencing starting point adopted for this type of offending is often around three years. Once discounts are applied, the end sentence is often under two years imprisonment, making home detention an available sentencing option. It is difficult to see how a guideline judgment would be of particular assistance, however, given the highly fact specific nature of these types of cases and the varying personal circumstances of the offenders.
[21] In conclusion, 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. It necessarily follows that there is no basis for a grant of leave from this Court for a
second appeal to the Court of Appeal.
9 Including R v Manikpersadh [2011] NZCA 452 at [12] and Fraser v R [2013] NZCA 250 at [20].
Bail
[22] That necessarily brings me to the issue of bail. Counsel for Mr Cooper has foreshadowed that, in the event that this Court does not give leave to appeal, then an application for special leave will be made direct to the Court of Appeal. Bail is sought pending the determination of that leave application by the Court of Appeal.
[23] Mr Cooper is, of course, entitled to make such an application. It will obviously be for the Court of Appeal to determine it on its merits. For bail purposes, however, it is appropriate to make at least a preliminary assessment of the likelihood of Mr Cooper first obtaining special leave and then succeeding in any appeal. Based on the information currently before the Court, my assessment is that the prospects of Mr Cooper obtaining leave and then ultimately succeeding on appeal are relatively slim.
[24] Further, given that I have declined to grant leave for a further appeal there is currently no appeal on foot. This is not a situation where Mr Cooper has a “right” of further appeal. This case accordingly differs from most or all of the bail cases which counsel relied on, which deal with the situation where a defendant has a right of appeal and seeks bail pending the determination of that appeal.
[25] Indeed it is questionable whether there is any statutory jurisdiction to grant bail “pending appeal” in circumstances such as the present, where there is in fact no appeal on foot, only an indication that Mr Cooper intends to seek special leave to appeal. Whether the present situation falls within the ambit of the Bail Act is not determinative, however, as this Court does have a broad inherent jurisdiction in relation to bail. I have concluded, however, that it would be inappropriate to invoke that jurisdiction in this case.
[26] Mr Cooper has already exercised his statutory right of appeal to this Court and was granted bail pending the outcome of that appeal. The decision of the District Court Judge was upheld. An application to this Court for leave to appeal to the Court of Appeal has been declined. The prospects of obtaining special leave to appeal, and then succeeding on that appeal, appear to be slim, for the reasons outlined above. In such circumstances it is appropriate that Mr Cooper now
commence his sentence without further delay. If Mr Cooper does apply to the Court of Appeal for special leave to appeal, as foreshadowed, then the issue of bail could presumably be further raised in that Court, at that time.
Result
[27] The application for leave to appeal is declined. The application for bail pending appeal is dismissed.
[28] As previously ordered, Mr Cooper is to hand himself to the Registrar of this
Court by 12 noon today in order to commence his sentence of imprisonment.
Katz J
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