Cooper v The King
[2025] NZHC 710
•31 March 2025
ORDER PROHIBITING PUBLICATION OF EVIDENCE AND SUBMISSIONS CONTAINED IN THIS JUDGMENT AT [51] PURSUANT TO S 205 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI-2024-406-015
[2025] NZHC 710
BETWEEN HUNTER DAVID JOHN COOPER
Appellant
AND
THE KING
Respondent
Hearing: 5 March 2025 Appearances:
R A Harrison for Appellant J M Webber for Respondent
Judgment:
31 March 2025
JUDGMENT OF GRICE J
(Redacted) (Appeal against sentence)
Introduction
[1] Mr Hunter Cooper, the appellant pleaded guilty to one representative charge of importation of a Class B drug, being MDMA,1 and one charge of possession for supply of a Class B drug, being MDMA.2 He was sentenced on those charges to three and a half years’ imprisonment on 3 December 2024.3
1 Misuse of Drugs Act 1975, s 6(1)(a) and (2)(b) — maximum penalty 14 years’ imprisonment.
2 Section 6(1)(f) and (2)(b) — maximum penalty 14 years’ imprisonment.
3 R v Cooper [2024] NZDC 29144 [decision under appeal].
COOPER v R (redacted) [2025] NZHC 710 [31 March 2025]
[2]Mr Cooper now appeals against his sentence on the grounds that:
(a)a lower starting point was justified based on the low social harm rating of MDMA compared to other Class B drugs according to The New Zealand drug harms ranking study: A multi-criteria decision analysis (the New Zealand drug study);4
(b)the five per cent discount given for “other matters” was insufficient; and
(c)further credit should have been given for Mr Cooper’s unique set of circumstances.
[3] Mr Harrison, for Mr Cooper, suggests that a starting point of no more than five years would be appropriate, along with a 25 per cent discount for “other matters”, and an increased discount for personal family circumstances (of an unspecified amount but greater than three per cent). He submitted that the extra discounts sought plus other reductions already made by the sentencing Judge, would amount to an end sentence of less than 18 months. On that basis, he seeks that the appellant’s sentence be commuted to one of home detention.
[4] The Crown opposes the appeal, on the basis that the starting point sought is out of line with relevant authorities, the discounts sought are excessive, and the challenges on appeal have been tailored to reach a sentence which can be commuted to home detention. It submits that the Judge did not err in his approach and the sentence was not manifestly excessive.
Factual background
[5] The factual basis upon which Mr Cooper was sentenced is contained in the agreed summary of facts to which he pleaded guilty. A disputed facts hearing had been initially sought by Mr Cooper’s previous counsel. However, following the police
4 Crossin and others “The New Zealand drug harms ranking study: A multi-criteria decision analysis” (2023) 37 J Psychopharmacol 891. The first ground of appeal was initially framed as two separate grounds in the appellant’s notice of appeal, however counsel combined the two grounds together in his written submissions.
locating further evidence and Mr Harrison being retained as counsel for the appellant, it was agreed that a hearing was no longer required.5 The agreed factual background was summarised by Judge Snell in his sentencing notes as follows:6
[3] In terms of your involvement, you were 22 years old, self-employed and living in Blenheim. During the course of 2022, you met people on online forums which we can refer to as “the dark web” and you arranged for them to post ecstasy (MDMA) to you, to addresses that you provided using false names in order that you not be under suspicion.
[4] You used six addresses … The first five addresses were Blenheim-based and, the last, Christchurch.
[5] Between April of 2022 and November of 2022, you were sent packages containing MDMA from a supplier in Belgium. Those arrangements had been made over the dark web. The packages containing the MDMA were sent to various false names that you had supplied. Some of them involved friends of yours’ names that you used. There were a total of 15 importations of the Class B controlled drug MDMA that were successfully delivered to either your Blenheim neighbouring addresses, your grandparents’ residential address or other known associates’ addresses.
[6] During 1 November 2022, New Zealand Customs were alerted to a number of imported packages that had arrived at the New Zealand border destined for various addresses within the country. Those were of a similar characteristic to the ones that had been delivered to the addresses that I have mentioned earlier between April 2022 and November 2022. One was addressed to … in Blenheim.
[7] Each of these packages had characteristics with the same original Belgium sender’s address. They each were the same size and weight, and the description of the contents and value of the contents were all the same. Each package also contained a plastic keyring with either a peace symbol or a smiley face.
[8] An examination by New Zealand Customs found that the package addressed to … in Blenheim contained liquid MDMA in 300 ml plastic pump spray bottles labelled as RUSH branded spray wax. As a result of that identification, checks were made to establish the previously delivered packages to the Blenheim addresses.
[9] On 15 April, 13 May, 10 June, 9 July and 21 July 2022, five packages containing MDMA were delivered to … in Blenheim. They were all delivered with the fictional name Ben Sheppard. Residing at the address was your friend
…
[10] On 4 August, 20 August, 27 August, 15 September, 30 September and 16 October, 16 packages containing MDMA were delivered to … in Blenheim. Those packages were addressed to … a person that you knew who had previously resided at that address but had moved to Australia on 17 April 2021
5 Decision under appeal, above n 3, at [13]–[18].
6 Note the names and addresses of witnesses not necessary to the decision have been omitted.
and only briefly returned to New Zealand on 16 March 2023, so they were not living in New Zealand at the time the packages were sent to them at that address.
[11] On 15 September, 30 September, 17 October and 31 October 2022, four packages containing MDMA were delivered to … in Blenheim. Those packages were all addressed to a fictional name, Ben Shepherd. That address is the address of your grandparents who were roped into your importation of MDMA by you using their address.
[12] As regards the possession for supply charge, on 17 May 2023 the police executed a search warrant at your address … On arrival at the address, you uplifted a package of MDMA that was in your house and you attempted to hide it from the police. In your haste to hide it, you dropped it on the outside exterior backdoor pathway and it was uplifted by police. That package was vacuum packed and contained 1.8 kilograms of MDMA. You have accepted that was possessed by you for supply. You admitted supplying MDMA on occasions.
[6] It was accepted that Mr Cooper had been dealing MDMA in amounts of up to an ounce at a time, and that he had received cryptocurrency as payment.7 It was also accepted that the money contained in his crypto wallet was substantially derived from dealing.8 In addition, it was accepted that Mr Cooper had been actively involved in the importation and was not merely a “catcher”.9
The District Court decision
[7] The sentencing Judge reviewed the pre-sentence reports, however he attributed little weight to those that were based on self-reporting, and he did not consider that Mr Cooper had “come to grips with” the seriousness of his offending.10 The Judge also had before him the affidavit of Dr Rose Crossin,11 which annexed the New Zealand drug study, as well as affidavits from a number of Mr Cooper’s family members. The Judge noted that the key finding of the drug and alcohol report was that Mr Cooper had a probable genetic predisposition to substance use problems, having grown up in a dysfunctional home environment and experienced an instance of sexual abuse.12
7 At [16].
8 At [17].
9 At [17].
10 At [24] and [25].
11 Dr Crossin is a Senior Lecturer in the Department of Population Health at the University of Otago.
12 At [28].
[8] The Judge noted the relevant principles and purposes of sentencing under the Sentencing Act 2002. He referred to the tariff decision for Class B drug offending of R v Wallace.13 It was agreed by both counsel that Mr Cooper’s offending fell within band two of that case.14 The Judge also referred to a number of other cases,15 in particular McCaslin-Whitehead v R, which he considered involved offending very similar to the present case.16 In McCaslin-Whitehead, a starting point of eight years’ imprisonment was adopted at sentencing on charges of importing and supplying 11 kg of MDMA over five separate transactions. On appeal, the High Court Judge did not disturb the eight-year starting point for the MDMA offending, but considered a “significant uplift” of two years was appropriate to take account of the defendant’s additional charge of importing 5,000 tabs of LSD.17 The Court of Appeal held that the adjusted 10 year starting point was within range, “albeit at the lower end of the range”.18 The sentencing Judge in this case observed that, like the offender McCaslin-Whitehead, Mr Cooper was operating as “a one-man band”.19 He was organising the importation, arranging for the drugs to be sent to various addresses, picking them up, and distributing them.
[9] In terms of the other relevant factual circumstances of Mr Cooper’s offending, the Judge noted that there were 15 importations covered by the single representative charge, at least one of which involved 2 kg of MDMA with a reported street value of
$500,000.20 The level of the other importations, as well as the amount of MDMA that
was used by Mr Cooper personally and the amount that was sold on, was unclear.21 The Judge observed that Mr Cooper clearly “had an abundance of money” at that time, as indicated by the significant purchases he had made.22 These included three vehicles,
13 Decision under appeal, above n 3, at [49], citing R v Wallace [1999] 3 NZLR 159 (CA).
14 At [50].
15 These included R v Erenstein HC Auckland S26/03, 21 November 2003; Winkels v Police [2017] NZHC 2944; R v Kavaleros HC Auckland CRI-2009-404-384, 12 August 2011; and Walter v Police [2018] NZHC 192.
16 Decision under appeal, above n 3, at [53]–[55], citing McCaslin-Whitehead v R [2023] NZCA 259.
17 McCaslin-Whitehead, above n 16, at [40].
18 At [43].
19 Decision under appeal, above n 3, at [55].20 At [61].
21 At [62].
22 At [62].
two of which have been seized, and cryptocurrency at a value of approximately
$300,000, which has also been seized.23
[10] The Judge found that Mr Cooper held a lead role in many respects, noting that he organised the importation with an overseas supplier, with whom he was in direct communication.24 Furthermore, he was involved in determining what type of ecstasy would be imported based on the state of the market. However, the Judge said that Mr Cooper also had “many of the traits of a significant person”.25
[11] The Judge further noted that Mr Cooper had used his computer skills to organise the importation and supply through the dark web, and carried out payments by way of cryptocurrency to avoid detection.26 The Judge considered there was “no doubt” that Mr Cooper was motivated by financial and commercial gain.27
[12] The Judge concluded that Mr Cooper’s importation offending fell within category two of Wallace, and adopted a starting point of six and a half years’ imprisonment, which he considered to be at the lowest end of the available range.28 He then applied a six-month uplift for the charge of possession for supply, resulting in an overall starting point of seven years’ imprisonment.29
[13] Turning to personal mitigating factors, the Judge applied a reduction of 17 per cent for Mr Cooper’s guilty plea.30 An early guilty plea which otherwise might have allowed a discount of 25 per cent. However, that discount was reduced because of Mr Cooper’s attempts to mislead the Court through false affidavits filed after his plea was entered, and due to the proposed disputed fact hearing.31 Mr Cooper had sworn an affidavit minimising his involvement in the offending and asserting that he was only a catcher. He had also misled his parents. In reliance on that misinformation, Mr Cooper’s parents provided supportive affidavits to the Court. Mr Cooper was
23 At [36].
24 At [63].
25 At [63].
26 At [64].
27 At [65].
28 At [66] and [67].
29 At [67].
30 At [71].
31 At [70] and [71].
forced to retract the false narrative when faced with further evidence and advised by new counsel. However, the Judge agreed with defence counsel that Mr Cooper’s actions had arisen out of panic and naivety, and he had not understood the full extent of what he was doing.32
[14] The Judge acknowledged that Mr Cooper had become addicted to drugs as a flow-on consequence of the sexual abuse he experienced as a child.33 However, he considered that Mr Cooper had undertaken the offending with commercial motivation, rather than just to supply himself with ecstasy.34 Despite that, the Judge considered a discount of 15 per cent was warranted for Mr Cooper’s background factors.
[15] In considering the impact of youth, the Judge noted that Mr Cooper was 22 years old, and therefore a young adult, however accepted that his age likely made him more impulsive than others.35 As to previous good character, the Judge observed that this offending had occurred for a period of over a year prior to Mr Cooper’s arrest.36 Therefore, the Judge considered that, at best, a 10 per cent discount could be given for youth and previous good character.
[16] A three per cent reduction was made to reflect the impact of Mr Cooper’s absence on his young son.37 The Judge considered only a modest discount was warranted, given that his son would be well cared for by Mr Cooper’s partner, and would have the support of Mr Cooper’s parents and grandparents.38
[17] This amounted to an overall discount of 45 per cent.39 The Judge rounded this up with a further five per cent reduction for “other matters”, taking the total discount up to 50 per cent.40
32 At [71].
33 At [72].
34 At [73].
35 At [74].
36 At [75].
37 At [77].
38 At [76].
39 At [79].
40 At [82].
[18] Applying that reduction to the starting point of seven years’ imprisonment, the Judge imposed an end sentence of three years and six months’ imprisonment for the charge of importation, and a concurrent sentence of two years’ imprisonment for the charge of possession for supply.41
Application to adduce further evidence
[19] Mr Cooper seeks to adduce further evidence on appeal, being sworn affidavits of his partner and his mother. The test for determining whether fresh evidence may be adduced on appeal is well-settled. The court must be satisfied that the evidence is sufficiently fresh (in that it could not with reasonable diligence have been called at sentencing), sufficiently credible, and cogent in the sense that it might reasonably have led to a different outcome.42
[20] The affidavit of Mr Cooper’s partner provides updated information about the impact of his sentence on his young family, particularly following the birth of his second child. The Crown accepts this deals with events since the sentencing and to that extent is fresh.
[21] Mr Cooper’s mother’s affidavit describes his difficult childhood and home environment as well as her own challenges. It was filed and served the day before the appeal hearing. The Crown objects to its admission saying that it is not fresh, it could have been available at sentencing, and in any event many of the issues raised are covered in other reports which were before the sentencing Judge. I agree that the material in that affidavit is not fresh, nor does it add anything of cogence to the material already before the Court.
[22] I admit the affidavit of Mr Cooper’s partner. The evidence is sufficiently fresh, credible, and cogent to meet the test for adducing further evidence on appeal. However, I do not grant leave for the admission of the affidavit of Mr Cooper’s mother on appeal, for the reasons set out above.
41 At [83]–[86].
42 R v Lundy [2013] UKPC 28, [2014] 2 NZLR 273.
Approach on appeal
[23] Appeals against sentence are governed by s 244 of the Criminal Procedure Act 2011. This Court must allow the appeal only if it is satisfied that there was an error in the sentence and that a different sentence should be imposed.43 Generally the court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.44 In most cases, a sentence appeal will “turn on a consideration of whether the final outcome is manifestly excessive”, rather than “the route by which the judge reached that outcome”.45
Starting point
The New Zealand drug study
[24] The New Zealand drug study, which is relied upon by the appellant, aimed to quantify the harm arising from specific drugs, taking into account harms to both the person using the drug and others (including family, communities, and society). This was with the intention of providing a knowledge base to inform policy, resource allocation, and health promotion.
[25] The New Zealand drug study found that for the total New Zealand population, MDMA ranked 17th for harmfulness out of 23 drugs, with a harm score of seven out of 100. By way of comparison, GHB/GBL, another Class B drug, had a score of 12 out of 100. Alcohol was the most harmful drug overall for the total population, with a score of 88 out of 100. Methamphetamine ranked second for harmfulness, with a harm score of 71 out of 100.
R v Wallace and subsequent case law
[26] The sentencing Judge referred to the tariff case of R v Wallace.46 That case was decided in 1999, prior to the enactment of the Sentencing Act 2002, and concerned methamphetamine, which at the time was a Class B drug. While the particular
43 Criminal Procedure Act 2011, s 250(2).
44 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
45 Ripia v R [2011] NZCA 101 at [15].
46 Wallace, above n 13.
sentencing outcomes in Wallace are no longer relied upon for that reason, the three broad categories are still generally cited in sentencing for Class B drug offending.
[27] The bands established for commercial dealing in Class B drugs were outlined as follows:
[30] The cases reflect a considerable range in the seriousness of offending. They show that for commercial activity on a major scale the starting point before any allowance for mitigating factors for a principal offender will be in excess of eight years and in the very bad cases up to 14 years, especially where repeat offending is involved. For major offending of this kind there will likely be numerous separate offences so that the 14-year maximum penalty will have little direct relevance to the total offending.
[31] Commercial manufacture or importation on a substantial scale reflecting sophistication and organisation with operations extending over a period of time though not involving massive quantities of drugs or prolonged dealing calls for a starting point in the range five to eight years.
[32] For smaller operations, but representing commercial dealing, starting points of up to five years are appropriate. This necessarily must be a broad category to enable sentences to reflect the many varied circumstances that can arise.
[28] The Court of Appeal in Wallace acknowledged that while its immediate concern was with methamphetamine, there were a range of Class B drugs which varied in their manner of use, value, potency, and perceived perniciousness.47 It further noted that those who engage in the dissemination of such drugs may perform different roles attracting varying degrees of culpability. The Court cautioned that comparisons between sentencing cases must be drawn with care,48 recognising the particular difficulties in comparing sentences involving different drugs, even within the same class.49 However, in general, there was “no justification for differentiation between drugs in the same class, but any comparison of offending in relation to different drugs must take into account such matters as potency, purity, formulation, manner of sale and use”.50 This suggests that the Court preferred to take a broad approach to setting the relevant sentencing bands, although it was careful to emphasise that close attention must be paid to the particular drug and particular offending at sentencing.
47 At [21].
48 At [22].
49 At [23].
50 At [25].
[29] A number of subsequent cases have commented on the approach in Wallace. In Close v R, which concerned offending involving the Class B drug GBL, it was suggested by counsel that the bands in Wallace needed to be applied with “considerable caution” because they were decided with reference to methamphetamine.51 While the Court of Appeal accepted that methamphetamine is “a particularly pernicious drug”, it declined to reconsider the bands as it did not have any evidence before it to enable it to engage in a comparative analysis of different Class B drugs.52 In any event, the Court doubted the utility of trying to produce a gradation of seriousness in relation to Class B drug offending, and considered that there were sufficient GBL authorities available by way of comparators in order to determine the appropriateness of the sentence.
[30] In R v Ingram, the Court of Appeal held that it was appropriate for courts to make comparative harm assessments between drugs within the same class, where that was justified by the evidence.53 This was in the context of considering the appropriate approach to sentencing for MDA, a Class A analogue of the Class B drug MDMA, and the application of methamphetamine sentencing bands. The Court discussed Wallace, and noted that while that case had decided in favour of uniformity of treatment within drug classes, it must be read in its proper context.54 The Court observed that at the time, sentencings for other Class B drugs such as MDMA, morphine, and cannabis oil were already relatively stern, and the Court in Wallace “was really signalling that methamphetamine sentencing could not on any proper basis be set lower than prevailing levels for those other class B drugs”.55 The Court in Ingram concluded that a different approach was required for sentencing for MDA offending than for methamphetamine, despite the fact that both are Class A drugs.
[31] In Cavallo v R,56 the Court of Appeal considered how cocaine offending should be sentenced in light of Zhang v R,57 the 2019 guideline judgment for methamphetamine offending. After hearing expert evidence about the relative harm
51 Close v R [2011] NZCA 434 at [10].
52 At [11].
53 R v Ingram [2018] NZCA 252, [2018] 3 NZLR 783 at [20].
54 At [52].
55 At [52].
56 Cavallo v R [2022] NZCA 276.
57 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
caused by cocaine compared to methamphetamine, the Court held that starting points for offending involving cocaine should generally be set approximately five per cent lower than for methamphetamine.58
Application of Wallace — discussion
[32] Mr Harrison suggests that the broader point to be taken from the cases of Ingram and Cavallo is that this Court should follow the Court of Appeal in relying on scientific assessments of the relative harms of various Class B drugs in sentencing. He contends that the continued use of the Wallace bands for Class B drug offending, which he says are typically determined on the basis of weight, means the same sentences are applied to offending involving drugs with higher social harm ratings as to those with much lower social harm ratings. Mr Harrison further suggests that there is a wide sentencing range for offending within band two of Wallace in relation to MDMA. As an example, he cites the case of Wang v R, noting that the Court there did not take into account the fact that social harm is lesser for MDMA as opposed to other drugs.59
[33] Mr Harrison submits that the Judge failed to consider the issues raised in Cavallo and Ingram. He says that, in light of ss 7, 8, and 9 of the Sentencing Act, the Court should lower the starting points in Wallace to take into account the respective social harm caused by various Class B drugs. He notes the lower social harm rating of MDMA in the New Zealand Drug Study compared to other drugs in the Class B category, and says this means it should attract a lower starting point. He contends that a starting point of between four-and five-years’ imprisonment “for 2.9kgs of MDMA” was open to the Court on that basis. This is bearing in mind that the Wallace bands were originally set in relation to methamphetamine which is the most socially harmful drug.
[34] Mr Webber, for the Crown, responds that while there are some general points of principle to be drawn from Cavallo and Ingram, it must be borne in mind that both were decided in relation to Class A drugs, in a context where there is already a detailed
58 Cavallo, above n 56, at [63].
59 Wang v R [2021] NZCA 79.
guideline case relating to methamphetamine and the starting consideration for placement in a band is weight. Therefore, if that guideline case had been directly applied to all other Class A drug cases, the resulting sentences would have been on par with methamphetamine. He contends that, contrary to Mr Harrison’s submission, there is no such weight-based approach to Class B drugs under Wallace. Rather, a broader assessment of the nature and scale of the operation, bearing in mind relevant factors including the particular harmfulness and potency of the drug involved, is required.
[35] Mr Webber also notes that in Ingram, the Court of Appeal had no difficulty with the fact that the sentencing Judge looked at MDMA sentencing as “a bottom end guide rail” in the absence of a guideline judgment for MDA offending.60 In its assessment of what the appropriate sentence would be for equivalent MDMA offending, the Court applied the Wallace bands, indicating their continued utility.61 Mr Webber says it is notable that this was a Court that was armed with significant expert evidence about the relatively low degree of harm caused by MDMA compared to methamphetamine and MDA. In a similar vein in Close referred to above, the Court looked at GBL case comparators for GBL offending.
[36] In my view, despite the fact that Wallace was decided 25 years ago and the change in classification of methamphetamine since, the case still provides useful guidance in sentencing for commercial Class B drug offending. There is no indication that the courts have approached the sentencing in commercial Class B drug offending as if it were as harmful as methamphetamine. A number of more recent authorities on MDMA sentencing (which are discussed below), involve starting points considerably lower than the older MDMA decisions referred to in Wallace, reflecting the modern understanding of its relative social harm.
Other relevant cases
[37] The Crown refers to a number of cases supporting the starting point taken in the District Court, which were also relied upon by the sentencing Judge.
60 Ingram, above n 53, at [82].
61 At [83].
[38] In R v Kavaleros, the offender was a “catcher” in an MDMA importation syndicate.62 He was convicted on three charges of importing and on four charges of supplying MDMA.63 His role was described as “limited and very specific but very important”.64 While the amount of MDMA involved in the transactions was unknown, there was no doubt that they were within the context of a significant commercial operation.65 The High Court viewed the offending as “well into category 2 of Wallace” and took a starting point of six years’ imprisonment for the importation charge, with an uplift of six months to reflect the totality of the offending on the supply charges.66
[39] In R v Erenstein, the High Court sentenced an offender who had imported approximately 3 kg of MDMA powder in the lining of a jacket in his baggage on a flight from Singapore to New Zealand.67 He was sentenced on the basis that he was a courier, co-opted int eh venture by others when in an emotionally vulnerable state.68 The Judge noted that the offender stood to gain the “relatively paltry sum” of
$10,000 USD, which the Judge considered was evidence of the defendant’s expendability to the group.69 A starting point of 10 years’ imprisonment was adopted.70
[40] In Winkels v Police, the appellant imported 2.9 kg of MDMA into New Zealand on a single occasion (amounting to 2.2 kg of pure MDMA), transporting the drugs in the false base of a suitcase.71 The High Court considered that the case was comparable to Erenstein, commenting that “[t]he similarities between the two cases, and the starting point of 10 years’ imprisonment in Erenstein supports the view that, at the least, the starting point of eight years’ imprisonment here was not manifestly excessive”.72
62 R v Kavaleros, above n 15, at [12].
63 At [1].
64 At [12].
65 At [13].
66 At [14].
67 R v Erenstein, above n 15, at [3].
68 At [6].
69 At [6].
70 At [10].
71 Winkels v Police, above n 15.
72 At [41].
[41]In Walter v Police, the appellant imported MDMA amounting to between
1.5 kg and 1.6 kg of pure MDMA, which he transported to New Zealand in a hidden compartment in his suitcase.73 He also imported some ketamine. The starting point was seven years for the MDMA importation alone. This was not challenged on appeal, which the High Court said was “understandable given the fact that the maximum sentence on the MDMA charge is one of 14 years imprisonment”.74
[42] Finally, in Wang, 4,916 g of MDMA had been imported alongside 430.1 g of methamphetamine.75 The appellant had played a lesser role in the operation, described as performing “a limited function under direction”.76 In regard to the MDMA offending, the Court on appeal found the sentencing Judge did not err in setting a starting point of six years’ imprisonment. In fact, it noted that it was arguably towards the lower end of the available range.77
[43] I consider that the sentencing Judge correctly placed Mr Cooper’s offending in band two of Wallace, on the basis that it involved commercial importation on a substantial scale, which reflected sophistication and organisation with operations extending over a period of time, although not involving massive quantities of drugs or prolonged dealing. Therefore, a starting point in the range of five to eight years was appropriate.
[44] On the basis of the above cases, together with McCaslin-Whitehead (which is discussed under the summary of the District Court decision above), the total starting point of seven years’ imprisonment taken by the Judge was within range, and indeed could be said to be generous. Mr Cooper’s offending involved 15 importations of methamphetamine, and while the quantities involved in those transactions are unknown, the last of the importations was of 1.8 kg of MDMA. This suggests that the overall quantity was at least on par, or likely higher than that involved in the cases referred to by the Crown. Furthermore, as the Judge noted, Mr Cooper was acting as
73 Walter v Police [2018] NZHC 192.
74 At [6] and [8].
75 Wang, above n 59.
76 At [6].
77 At [22]. In fact a three year uplift for the MDMA offending was added to the starting point for the methamphetamine offending.
a “one-man band”, carrying out a significant or leading role in the operation. This is in contrast to the defendants in the cases discussed above, who were carrying out lesser roles.
Discounts for mitigating factors
Guilty plea
[45] The Judge awarded a discount of 17 per cent for Mr Cooper’s guilty plea. This was not challenged on appeal. The Crown contends that discount was excessive, given the circumstances involving Mr Cooper mischaracterising his offending, seeking a disputed fact hearing, and placing affidavits before the Court containing a false account of his offending. Mr Webber notes that the Judge himself acknowledged that the discount was “particularly generous”.78 He submits that Mr Cooper cannot now “bank” the 17 per cent discount while looking to adjust other discounts upward. I return to this point when discussing the discount for personal circumstances.
Background and addiction
[46] Mr Cooper received a reduction of 15 per cent for personal factors relating to his background and drug use, including that he had experienced sexual abuse. The Crown does not accept the causal connection between that background and Mr Cooper’s commercial drug offending, given that it was largely financially driven. Therefore, Mr Webber submits this discount was generous.
[47] While the reduction may have been generous in the circumstances, it was within range.
Youth and good character
[48] A 10 per cent discount was applied for youth and previous good character. The Crown’s position is that the Judge would have been justified in declining credit for youth given that Mr Cooper was not an adolescent at the time of the offending. Furthermore, while he does not have any previous convictions, Mr Webber says this
78 Decision under appeal, above n 3, at [71].
must be balanced against the length of the offending and the number of discrete acts involved — in this case, a period of over a year, involving 15 separate acts of importation.
[49] I consider the reduction of 10 per cent for youth and good character was appropriate in the circumstances.
“Other matters”
[50] As I noted, the Judge rounded up the reductions with a further discount of five per cent at sentencing for “other matters”.
[51][Redacted].
Personal circumstances
[52] Mr Harrison refers to the affidavit admitted on this appeal and filed by Mr Cooper’s partner. It outlines particular family circumstances, which Mr Harrison says warrant a further discount.
[53] In her affidavit, Mr Cooper’s partner notes that they have two young children together. She says that their son has become “extremely distressed, anxious and emotionally unstable” following the absence of his father, with whom the child is close. In addition, their daughter was ill at birth requiring Mr Cooper’s partner to stay in hospital with her for four to five days. At that time Mr Cooper’s partner was supported by other family members, however they have now returned to their respective homes. She therefore currently lives alone with the two children. She has little support and is not able to drive.
[54] Mr Harrison submits that these circumstances must be taken into account under s 8(h) of the Sentencing Act, which provides that the court must have regard to whether an otherwise appropriate sentence would, in the particular instance, be disproportionately severe. He refers to Philip v R, where the Court noted that a sentencing approach which recognises the importance to a child of the familial relationship is required under both the Sentencing Act and the United Nations
Convention on the Rights of the Child.79 Mr Harrison contends that the three per cent discount given by the Judge in this respect was inadequate, particularly given the birth of the family’s new baby and the lack of immediate and available support now. Mr Harrison does not specify the exact discount sought.
[55] Mr Webber suggested that options exist for Mr Cooper’s partner to have further support. He refers to the High Court’s discussion of Philip in Blackbourn v R, in particular, as follows:80
[47] … The Supreme Court in Philip v R affirmed that it is “uncontroversial” to say that the impact imprisonment has on an offender’s child is a relevant factor when considering personal circumstances. The weight to be accorded to the factor depends on the circumstances, including the type of the offending and the circumstances of the child or children. Unlike Mr Philip’s case, however, there is no evidence here to suggest that the child will be unusually detrimentally impacted by a sentence of imprisonment. In Philips, a psychologist’s report noted that the child had a “secure attachment” to his parents and would “experience a significant sense of loss” if Mr Philips was sentenced to imprisonment. Comments made by Mr Philip indicated that his rehabilitative prospects were linked to his relationship with his son. Mr Philip’s partner (the child’s mother) was also facing criminal charges, so the sentences received by either party clearly had the ability to impact the day-to-day quality of the child’s care. In this case, while I acknowledge a sentence of imprisonment would likely have a significant impact on the child, there is no indication that the child’s mother (who shares his care) will be unable to look after the child adequately in Mr Blackbourn’s absence.
[56] In this case while Mr Cooper’s partner does not have substantial family support, she does have some support and is able to look after the children in Mr Cooper’s absence. The sentencing Judge specifically referred to this aspect.81
[57] Mr Webber further notes the importance of not simply tallying up discounts for personal factors, but instead considering the totality of reductions available. In Hessell v R, the Supreme Court noted the need for the sentencing judge to “stand back” and determine whether the sentencing outcome is correct.82 Similarly, in Dickey v R, the Court of Appeal made the following observation:83
79 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.
80 Blackbourn v R [2024] NZHC 2937 (footnotes omitted).
81 Decision under appeal, above n 3, at [76].
82 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [77].
83 Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405 at [175] (footnotes omitted).
…It is always necessary to stand back and make an overall assessment when sentencing, and manifest injustice is assessed as a matter of overall impression. Discounts overlap and there is a risk that some statutory purposes of sentencing can be lost sight of when they are treated separately and simply tallied up. …
[58] While the discount could have been more than three percent, nevertheless the Judge’s discount for the guilty plea was generous in the context of Mr Cooper’s attempt to mislead the Court and the disruption to the hearing caused by Mr Cooper disputing the facts. In the circumstances, the Judge made no error.
[59] Looking at the reductions applied and the sentence as a whole, the overall sentence was not manifestly excessive. Any adjustments would amount to tinkering.
Home detention
[60] Finally, Mr Harrison submits that the possibility of home detention would arise if the Court accepted that the sentence should be reduced on appeal. Given my conclusions above, that does not arise due the end sentence remaining at three years and six months imprisonment.
Conclusion
[61] The Judge made no error. The sentence of three years and six months imprisonment was not manifestly excessive.
[62]The appeal is dismissed.
Grice J
NOTE:
·Since the delivery of this judgment to counsel only, counsel have confirmed that [51] of the judgment should be redacted. Accordingly, I make an order under s 205 of the Criminal Procedure Act 2011 to redact [51] to protect the safety of any person.
Solicitors:
Inangahua Chambers, Blenheim for Appellant O'Donoghue Webber, Nelson for Respondent
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