Cooper v The Queen

[2005] NZCA 129

IN THE COURT OF APPEAL OF NEW ZEALAND

CA32/05

THE QUEEN

v

REUBEN DEAN COOPER

Hearing:23 May 2005

Court:William Young, Panckhurst and Doogue JJ

Counsel:T W Fournier for Appellant

P J Shamy and K T Dalziel for Crown

Judgment:27 May 2005 

JUDGMENT OF THE COURT

The appeal against both the sentence of three years six months imprisonment and the imposition of a minimum period of imprisonment of two years is dismissed.

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REASONS

(Given by Panckhurst J)

INTRODUCTION

[1]       The appellant was found guilty at trial upon charges that on 26 November 2003 he entered a building with intent and indecently assaulted a girl who was in bed in the house.  She was aged 15 years.  On 22 December 2004 the trial Judge, Judge Abbott, sentenced the appellant to three and a half years imprisonment with a minimum non-parole period of two years.  This appeal is against that sentence.

The facts

[2]       The appellant was a near neighbour of the complainant’s boyfriend.  On Wednesday, 26 November 2003 he noticed visitors at the address.  Although he did not know the occupants he went to the house and asked if he could join the group.  He was invited to do so.  Later in the evening the other visitors departed, leaving the complainant, her boyfriend and the appellant at the address.  The boyfriend was intoxicated. 

[3]       The appellant stayed at the address for some time, but then left.  However, the complainant noticed the appellant still outside a bedroom window a short time later as she endeavoured to get her boyfriend into bed.  The appellant then entered the house, uninvited, and went into the bedroom.  Subsequently, he again left. 

[4]       Later still, when the complainant and her boyfriend were in bed, the appellant again entered the house and made his way to the bedroom.  The complainant sensed a figure in the doorway and she was then “groped in the area of her right breast, not once but twice” to use the description of the Judge at sentencing.  At this point a cellphone light and a bedroom light were turned on, which enabled the complainant to view the intruder.  As a result the appellant was charged. 

[5]       He defended the charges on the basis of mistaken identification but, absent evidence from him, the jury accepted the complainant’s account and found the appellant guilty.

The sentence

[6]       The Judge noted in the course of his sentencing remarks that although the complainant was comparatively young, she was “somewhat worldly” but the impact of the incident on her was still significant.  This was because she was vulnerable, as she attempted to cope with a drunken and comatose boyfriend, while effectively alone in the house.

[7]       After accepting that the indecent assault was not of the most serious kind, the Judge compared the facts of this case to those in R v Ielemia CA405/01 14 March 2002, in which this Court reduced a sentence of three years imprisonment to two years three months.  That too was a case which involved entry into a house and the indecent touching of a teenage girl who was asleep in a bed.  The Judge noted that he was familiar with Ielemia because he was the trial Judge in that case as well.

[8]       Using Ielemia as a point of comparison the Judge commented that there were two significant points of difference in this case.  These were that Ielemia was a first offender whereas the appellant had a significant list of previous convictions, and, was on parole as at November 2003.  After bringing these features to account the Judge concluded that concurrent sentences of three years six months were appropriate for each of the offences.

[9]       He then accepted the submission of Crown counsel that a minimum non‑parole period was required.  The Judge remarked:

In addition to the factors which she (Crown counsel) has identified, i.e. accountability, denunciation and deterrence, the fact that the offending was committed while you were on parole is also in my view a relevant factor in that context.

Hence, a two year non-parole period was fixed.

Grounds of appeal

[10]     Mr Fournier (who was not trial counsel) submitted that the sentence was manifestly excessive.  In particular he argued that the Judge was wrong to adopt the sentence of two years and three months substituted by this Court in Ielemia and then add fifteen months (more than 50%) for the two aggravating features which were identified.  To do this was characterised as “wrong in principle, excessive and not in keeping with existing sentencing trends”.  Sight was lost, Mr Fournier argued, of the actual level of offending, which was essentially a drunken night time intrusion into a dwelling, accompanied by an indecent assault very much at the lower end of the scale of seriousness for that crime.

[11]     With reference to the minimum non-parole period counsel submitted the circumstance that the appellant was on parole was again brought to account in this context, and thereby double-counted.  Moreover, this circumstance was one relevant to the offender, rather than the offence, and should not have been relied upon anyway. 

[12]     Mr Shamy argued that the Judge, having presided at the trial, was best placed to assess the appellant’s culpability and that the end sentence, and non-parole period, were within the available sentencing range, albeit both were stern responses.

Discussion

[13]     There is no firmly established sentencing range for the crime of indecent assault, because the circumstances of such offences may vary greatly.  The present case is a good example.  While the assault itself was not of the most serious kind, the surrounding circumstances significantly aggravated the offence.  The appellant had been a visitor at the address.  After first leaving he returned on two occasions, removing a lounge window at one point in order to gain entry.

[14]     At the time of the offence itself, he knew that the complainant was in bed with her comatose partner.  In a darkened room he intentionally and indecently touched her, desisting when he was at risk of being identified.  These features indicated that the offending was characterised by persistence, opportunism and that it involved preying on a young woman who was in a vulnerable position at the relevant time.

[15]     The appellant is aged 33 years.  He was released on parole in September 2003 from a sentence of five years imprisonment imposed for wounding with intent to cause grievous bodily harm.  His earlier convictions included a number for burglary and assault, two being assaults against females.  The pre-sentence report contained little which could be described as positive.

[16]     In all the circumstances we are not persuaded that the sentence of three years six months was beyond the available range for offences of this nature.  Certainly, the sentence was at the top end of the range, indeed stern in nature.  But, with the case involving as it did a home invasion and an indecent assault upon a young woman, we do not consider the intervention of this Court to be justified.

[17]     With reference to the minimum term the extract from the sentencing remarks quoted in our [9] suggests that s 86(2) of the Sentencing Act 2002, as amended in July 2004, was applied rather than its predecessor.  That is, the Judge considered whether a minimum term was required in order to achieve accountability, denunciation, deterrence and protection of the community, rather than considering whether the offences were sufficiently serious on account of being out of the ordinary range of offending of the particular kind as to warrant that outcome.  Since the offences were committed in November 2003 the previous version of the section was to be applied: R v Chadderton CA345/04 6 December 2004.

[18]     The significance of this distinction is that whereas previously the primary focus was upon the circumstances of the offence, leaving protection of the community largely within the domain of the Parole Board (R v Brown [2002] 3 NZLR 670 (CA)), s 86(2)(d) now explicitly recognises “protecting the community from the offender” as one of the four purposes which may influence the fixing of a minimum term. Significantly, the Judge did not refer to protection when he mentioned the three other purposes, but he did then add that the commission of the offences while the appellant was on parole was in his view “a relevant factor”. That remark indicates that community protection was certainly in mind.

[19]     We think the real question in this case is whether the offending met the sufficiently serious test under s 86(2).  As noted by this Court very recently in R v Pue and Ors CA78/04, CA118/04, CA119/04, CA137/04 and CA186/04 19 May 2005, the imposition of a minimum period of imprisonment should not be a routine response and must be justified.  In this instance it is by resort to the home invasion and parole elements a basis for the imposition of a minimum term of imprisonment may emerge.  The indecent assault of itself was not out of the ordinary range of offending of that kind.  But it is artificial to isolate the indecent assault in this way.  It must be assessed in its immediate context, in particular that a home was invaded to that end.  Viewed in this light we are not persuaded that the s 86(2) test was not met.  To the extent that the Judge necessarily paid regard to factors which influenced the head sentence itself, that was unobjectionable.  Commonly the same factors govern both the sentence imposed and whether a minimum term is required.

Conclusion

[20]     The appeal against both the sentence of three years six months and the minimum term of two years imprisonment is dismissed.

Solicitors:
Crown Solicitor, Christchurch