Coupe v Police

[2013] NZHC 717

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2013-425-000001 [2013] NZHC 717

SAMUEL GORDON COUPE

Appellant

v

POLICE

Respondent

Hearing:         8 April 2013

Counsel:         F Guy-Kidd for Appellant

R W Donnelly for Respondent

Judgment:      8 April 2013

JUDGMENT OF WHATA J

[1]      Friends of Mr Samuel Coupe entered into an agreement with the victim, Mr Maynard, to purchase drugs from him.   Mr Maynard was then paid $740 in exchange for a plastic bag containing white powder that Mr Coupe’s friends believed to be illegal drugs.   It turned out that it was not drugs.   They felt that they were “ripped off” and later in the day pursued the victim, Mr Maynard, and assaulted him. Some of them tried to take him to an ATM so that he could “pay the $740 back”. Mr Coupe pleaded  guilty to a charge of assault with intent to commit a crime,

namely theft by violent means rendering Mr Maynard incapable of resistance.[1]

COUPE V POLICE HC INV CRI 2013-425-000001 [8 April 2013]

[1] A charge laid under s 191(1)(a) Crimes Act 1961.

[2]      Mr Coupe was sentenced to an end sentence of two years and nine months imprisonment and required to make reparation of $2,000 to the male victim and

$1,000 to a female victim, the latter in relation to a charge of male assaults female. He was discharged on a charge of kidnapping.

[3]      Mr Coupe now appeals both conviction and sentence.   He claims that he objected to a last minute amendment to the charge from a lesser aggravating wounding charge to a charge involving wounding with intent to commit theft.  He says that he held a claim of right and that he was pursuing the return of his friends’ money.   He also says that a substitute sentence of just under two years should be imposed in light of the proper charge.

[4]      As Mr Coupe has already served one year and one week of his sentence, it is necessary to resolve this appeal with some urgency because if he is successful on his appeal he could be entitled to release relatively soon.

Background

[5]      In order to understand the appeal, it is necessary to detail the background upon which conviction and sentencing was based.

[6]      Mr Coupe pleaded guilty to a summary of facts that was not contested so this forms the proper narrative for the purposes of the appeal.

[7]      A group of friends, Rachel Maree Faul, Brooke Sylvia Carpenter, Charlotte Amelia Spencer Dickson, Daniel John Kissell, and the appellant, Mr Coupe, Brodie O’Rourke and Jonathon Charles Burke were out one evening in Queenstown.  While they  were  out  at  a  nightclub  they  purchased  Ecstasy  and  then  later  that  night Mr Kissell, Mr O’Rourke and Mr Burke paid money to Ms Faul for the purpose of obtaining drugs for the group.   Ms Faul had arranged by text message to meet Mr Maynard.   By this stage she had $740 cash comprised of $240 from Messrs Kissell,  O’Rourke  and  Burke,  $30  from  Ms  Dickson  and  the  remainder  from Ms Faul herself.   On meeting Mr Maynard he pulled out a bag he said contained controlled drugs.  She paid him the money for the drugs.   Later that night Messrs

Kissell, O’Rourke and Burke tried the white substance provided to them and they felt that they had been sold flour mixed with brown sugar.  They felt that they had been “ripped off.”

[8]      Ms Faul was contacted and she in turn tried to reach Mr Maynard without success.     Mr  O’Rourke  then  tried  to  contact  Mr  Maynard  and  he  too  was unsuccessful.

[9]      Mr O’Rourke, Mr Kissell and Mr Coupe met up again and they decided they would confront Mr Maynard.  They then met up with Ms Faul and Ms Dickson, and Mr Kissell and Mr Coupe got into a vehicle driven by Ms Dickson.

[10]     They then travelled to a place known as “the shed”. While there:

They agreed they were going to travel to [Mr Maynard’s] house and were going to give him a “scare” by roughing him up and making him give the

$740 back.

[11]     Mr  Coupe  changed  into  some  dark  coloured  clothing.    He  found  a  red balaclava and a large hunting knife, later described by a victim, Ms Caig, as a machete.

[12]     They all then left the shed and later in the early hours of the next morning Ms Faul sent a text to Mr Maynard asking him to meet and Mr Maynard agreed to meet at the junction of State Highway 6 and the Crown Range Road.  Once there, Mr Kissell approached the victim, Maynard, from behind taking him by surprise and grabbed hold of Mr Maynard’s shirt.  He pushed him up against Ms Faul’s vehicle telling Maynard he ripped them off and demanding that he pay the money back. Before Mr Maynard had an opportunity to reply Mr Coupe raced in and struck Mr Maynard in the face with a closed fist punch.

[13]     This time the second victim, Ms Caig, seeing what had happened got out of her vehicle and ran towards the defendants.  She ran into the back of Mr Coupe who turned and struck her with a closed fist on the left side of her face.  He told her to “fuck off slut” and then used one of his hands to grab her around the throat applying pressure.  All male defendants were then involved in what quickly became a chaotic

scene with all of the male defendants striking Mr Maynard with closed fists to the face and upper body.

[14]     Brandishing  a  meat  cleaver,  Mr  O’Rourke  threatened  Mr  Maynard  and pushed him into the back seat of Ms Faul’s vehicle.  Mr Coupe punched Mr Maynard while Mr O’Rourke head butted Mr Maynard a second time causing him to crumple to the ground dazed.  Mr O’Rourke assisted by one or more of the other male friends forced Mr Maynard into the back of Ms Faul’s car.  Ms Faul then drove off and was followed by the female victim, Ms Caig, in her car.  When it became apparent that Ms Caig was not going to give up her pursuit Ms Faul pulled to the side of the road while Mr Maynard fell from the vehicle lying dazed on the roadway before Ms Faul drove off.   Ms Caig picked up Mr Maynard and they continued their chase of Ms Faul’s vehicle.

[15]     While this was happening the male defendants who had been left at the base of  the  Crown  Range  turnoff  ran  back  to  the  white  Lancer  vehicle  driven  by Ms Dickson.  They drove back to the shed and there Mr Coupe put his knife back into his room and changed his clothing.  He later doused the balaclava and the shirt he had worn in the attack in petrol and set them both alight in a bid to destroy the evidence linking him to the attack.

[16]     Mr Coupe later surrendered himself to the police and stated that he assisted attacking the man because the defendant, O’Rourke, had told him that they were sold bad drugs and asked him to help.  He admitted approaching the victim, Ms Caig, but denied punching her.

Application for discharge

[17]     Further relevant background includes rulings of Judge P A Moran on the applications for discharge.  In the result, charges against Ms Faul, Ms Dickson and Ms Carpenter under s 191, aggravated wounding or injuring with intent to commit or facilitate the commission of any crime by any violent means were discharged, Judge Moran noting:

[19]      There is no doubt that those whom Mr Maynard had defrauded were intent on getting their money back.  The fact that, as a matter of law, they had no remedy because their contract with Mr Maynard was illegal did not enter their heads.   They no doubt believed that they were entitled to their money back and that their act of demanding it (as distinct from the use of force) was lawful.  They were mistaken.  This was a mistake of law.  They may have intended to commit a crime of violence but they did not intend to commit the crime of theft.  If they cannot be convicted of the crime charged in Count 2 then neither can those charged as secondary parties.  They must be discharged.

[18]     The charge against Mr Coupe for unlawfully detaining Mr Maynard was also discharged, Judge Moran concluding:

[29]     Mr Coupe’s assault on Mr Maynard ended before he was rendered unconscious by a head butt from O’Rourke.   Whenever the car door was opened there is nothing to suggest that Mr Coupe did anything to assist in Maynard’s  being  bundled  into  the  car  through  that  door;  nor  is  there anything to suggest that he intended to assist or encourage that event.

[30]      Again, it is quite unrealistic to suggest that Mr Coupe encouraged the kidnappers by not voicing any dissent before they drove off.   Events were moving too fast.  He did join with others after the event in telephoning the occupants of the car to persuade them to let Maynard go, a fact that supports the contention that he wanted no part of the kidnapping.

Notes of sentencing

[19]   Judge Phillips narrates the essential facts and summary, refers to prior convictions  and  aggravating  features,  including  the  victim  being  punched  and Mr Coupe throwing the first punch.   He assessed the level of the injury and the overall violence.  He observes that it was Mr Coupe’s intention to cause injury to a level to ensure that Mr Maynard was incapable of resisting the demand for money. He says it may not have been long-lived violence but it had a major impact on the victims.

[20]     He assessed overall that Mr Maynard’s injury was serious, bruising to his body, face, black eyes, swollen eyes, a knee problem, aggravated cuts and abrasions throughout his body and that he has had trouble sleeping and incurred expenses, lost wages, lost holidays and that he has had to meet other extraneous costs.  The female victim was very angry and she has had losses and she is caring for herself and her daughter without funds.

[21]     The Judge then examines Mr Coupe’s background in more detail and then returns to the facts of the offending.  He observes that Mr Coupe was clearly part of the ongoing attack on Mr Maynard but not part of the chase that occurred after he had been bundled into the car.  He noted the offer to make amends and mitigating factors  such  as  remorse.    He  notes  that  he  did  not  uplift  sentence  for  prior convictions.

[22]     The Judge then set what he said to be an appropriate starting point of five years in relation to the aggravated wounding.  He treated the male assaults female as a discrete offending and carried a further term of nine months as a starting point. He refers to an earlier sentencing indication where he allowed 20% for co-operation, remorse and making amends and arrived at a figure of 38 months which he brought down to three years imprisonment.  He then revised that approach with the result that he allowed 25% reduction for co-operation, remorse and related matters and a further

25% for a guilty plea bringing the sentence down to 36 months.  He then stepped back from the analysis and observed that he considered Mr Coupe’s action overall to be an aberration with a final sentence of two years and nine months together with the reparation of $2,000 to Mr Maynard and $1,000 to Ms Caig.   By comparison he sentenced Mr Burke to a final term of imprisonment for two years and two months and with similar reparation figures.

Assessment

[23]     There is a preliminary issue, namely whether or not an extension should be granted for leave to appeal. As the Crown does not oppose, that extension is granted.

[24]     The primary points on appeal are as follows:

(a)      That Mr Coupe could not have been found guilty of a charge of aggravated wounding with intent to commit a crime, namely theft by violent means as he was acting with a claim of right (as per paragraph [19] of the decision of Judge Moran);

(b)       That with the proper charge, a sentence of less than two years would

be appropriate.

The key issue – claim of right

[25]     Ms Guy-Kidd contends that the facts were insufficient for the prosecution to establish that the appellant had an intention to dishonestly and “without claim of right” take property with intent to deprive the owner permanently of that property or any interest in the property.   The appellant relies on the view expressed by Judge Moran.

[26]     The appellant further contends that the prosecution must exclude a reasonable possibility of a claim of right, and then refers to the definition of claim of right as follows:

claim of right, in relation to any act, means a belief that the act is lawful, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.

[27]     Ms Guy-Kidd says that the appellant was not part of the arrangement to buy drugs and did not contribute to the money given to Ms Faul to purchase the drugs. She says his involvement was to assist his friends and the other co-accused to confront Mr Maynard to get their money back.

[28]     She submits the defendant’s belief regarding the lawfulness of getting the money back which is the focus of the claim of right.  She says the critical issue is whether the police have excluded that there was a reasonable possibility that the appellant believed that his friends were lawfully entitled to get their money back, citing the Court of Appeal decision in R v Bhaskaran.[2]   Ms Guy-Kidd submitted that the appellant did not have to believe that he was entitled to use the coercive method in order for the claim of right to exist.

[2] R v Bhaskaran CA185/98, 19 August 1998.

[29]     Ms Guy-Kidd further submitted that on the summary of facts, as a matter of law the Crown could not establish beyond reasonable doubt that the appellant was

acting without claim of right.  She says the evidence strongly suggests that he along with the other defendants believed that they were entitled to return of the money for a drug supply which apparently was not supplied.

[30]     As to the appeal against sentence, Ms Guy-Kidd submitted that the starting point of no more than three years imprisonment would be appropriate for Mr Coupe on the wounding with intent to injure charge and applying the same deductions used by the sentencing Judge in relation to the male assaults female charge but reduced by an additional six months to reflect totality, a starting point of no more than three years six months is reached.  Then applying the relevant discounts, it is submitted that a sentence of no more than 23 months of imprisonment is appropriate.

[31]     The Crown responds that claim of right does not apply in light of the strict definition of claim of right, and following the authority of Hayes v R[3]  the Crown says that an amendment subsequent to the case of R v Bhaskaran alters the focus of claim of right from what might be termed a moral right to property to a proper lawful claim to property.

[3] Hayes v R [2008] 2 NZLR 321 (SC).

[32]     In the present context that has significance because the Crown says there was never  a  proper  lawful  claim  to  money  relating  to  a  drug  deal  gone  wrong. Mr Donnelly for the Crown refers by analogy to the maxim ex turpi causa non oritur actio to the effect that offenders did not have a legal right to redress.

[33]     The  Crown  also  says  that  a  claim  of  right  is  a  subjective  belief.    It  is submitted that with the entry of a guilty plea the appellant has admitted the offence and all necessary elements of it.

Resolution

[34]     The threshold test for intervention by this Court where there has been a guilty plea is miscarriage of justice.  Most salient is the observation of the Court of Appeal in Wilson v R[4] as follows:

[4] Wilson v R [2012] NZCA 554.

[18]    As regards the merits, I accept that it is only in exceptional circumstances that this Court will entertain an appeal against conviction following a guilty plea.

[19]     However, the categories are not closed and it is in my assessment more than arguable that should Simon France J’s stay decision be upheld on appeal, it would be a miscarriage of justice for the appellant to be denied the benefit of that decision.  The situation is capable of being distinguished from that in Faulkner.[5]   In this case, the entire prosecution is affected, not just one aspect of the evidence.

[5] Faulkner v Crown Solicitor at Auckland HC Auckland T116-121/94, 27 July 1995.

[35]     The observations of the Court of Appeal in R v Le Page[6] also resonate here:

[18]      A further category is where on the admitted facts the appellant could not in law have been convicted of the offence charged.  Examples are where a charge required special leave and such was not obtained, a charge was out of time or where as a matter of law the facts are insufficient to establish an essential   ingredient   of   the   offence.      R   v   Mohammed   CA415/96,

13 November 1996, is a relevant example.  Following an unsuccessful s347 application, in which Mr Mohammed challenged whether the facts were capable of supporting charges of forgery, he entered pleas of guilty to the charges.   On appeal against conviction this Court was satisfied that as a matter of law forgery could not lie on the basis of the facts alleged. Accordingly, the Judge below was wrong to have refused the s347 application.  This Court intervened and quashed the convictions.  Again, the present case is not suggested to be in that category, although it is based upon a challenge to a pre-trial ruling which the appellant contends was wrongly decided.   That circumstance indicates that there may be scope for overlap between the categories to which we are referring.

[6] R v Le Page CA CA297/04, 28 April 2005.

[36]     Given its significance I return to the statutory definition of claim of right, which applied from 1 October 2003 to 18 march 2012, namely:

Claim of right, in relation to any act, means a belief that the act is lawful, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.

[37]     The focal point here of course is not the lawfulness of the intent to injure, but rather  the  lawfulness  of  the  claim  to  the  monies  owed  or  said  to  be  owed  by Mr Maynard.

[38]     Dealing first with the factual claim, the summary of facts records that the

defendants felt “ripped off” and:

Agreed they were going to travel to this house and were going to “give him a scare by roughing him up and making him give the $750 back”.

[39]     Plainly therefore, the underlying intention of the defendants as recorded in the summary was to retrieve the money they thought was owed to some of their number.   Putting aside for one moment the legality of a drug deal, the underlying transaction was very simple: a contract for the sale of goods and where the goods were not fit for purpose the purchasers wanted their money back.

[40]     The critical issue remains, however, whether or not on the summary of facts, the police excluded the  possibility that  Mr Coupe held  a belief that  the act  of retrieving the money was lawful.   Or, as the Crown contends, it was simply not plausible to find that retrieving money on a drug deal gone wrong was a lawful act or that a belief could be held that such an act is lawful.

[41]     The Supreme Court in Hayes[7]  approached the question of claim of right by accepting that a “Robin Hood” defence should not be available. That was in the context of charges of fraudulent use of a document.  The Supreme Court cited with approval the observations of the Crimes Consultative Committee as follows:

The term “dishonestly” remains but is confined by our proposed definition to conduct which is known or believed to be without proper authority.  While the Committee does not support the use of an objective standard to assess the defendant’s belief that the act in question was authorised, at the same time the Bill shall remove any doubt that an idiosyncratic moral view about what actually constitutes dishonest behaviour will excuse the defendant from liability.

[7] Hayes v R [2008] 2 NZLR 321 (SC).

[42]     I consider however that the present case is not a “Robin Hood” claim.  It is not a case about an honest belief that it is morally appropriate to reclaim the money. Rather, but for the underlying illegality, it is clear to me that the defendants believed that the money was theirs, because they did not receive goods fit for the purpose for which they were purchased. Again, but for the underlying illegality the claim is both a moral one and one that would ordinarily fall within the definition of a lawful claim.

[43]     The Crown nevertheless says that a claim premised on an unlawful drug deal is unenforceable at law and cannot be treated as a lawful act.  But with respect to the argument promoted by the Crown, there is a difference between asserting claim of right for the purpose of enforcing a contract and asserting a claim of right for the purposes of defending a criminal charge of aggravated wounding or injuring with intent to commit or facilitate the commission of any crime, in this case, the crime of theft.

[44]     The crime of theft is then defined by s 219 of the Crimes Act as follows:

219      Theft or stealing

(1)       Theft or stealing is the act of,-

(a)       dishonestly and without claim of right, taking any property with  intent  to  deprive  any  owner  permanently  of  that property or of any interest in that property; or

(b)       dishonestly and without claim of right, using or dealing with any property with intent to deprive any owner permanently of that property or of any interest in that property after obtaining possession of, or control over, the property in whatever manner.

[45]     Dishonesty is then defined as:

Dishonestly" is defined in s 217 of the Crimes Act as "in relation to an act or omission, means done or omitted without a belief that there was express or implied  consent to,  or  authority for,  the  act  or  omission  from a  person entitled to give such consent or authority."

[46]     These  definitions  coincide  with  our  understanding  of  theft  in  everyday language.  It involves an element of dishonesty and without claim of right, that is, without any lawful claim to that property.  Claim of right in this context cannot be understood without juxtaposing the claim with a concept of dishonesty.  When that is

done, it can be seen that the underlying intention of the charge is to deter dishonest claims to property.  Hence in Hayes the Crown did not have to prove the accused did not have an entitlement to some monies.  The focus remained squarely on whether the accused dishonestly sought a pecuniary advantage.  And there is nothing in the summary of facts to suggest that Mr Coupe’s claim to reimbursement had a dishonest component and moreover the defendants plainly believed that they had a valid claim to the property.

[47]     Mr Donnelly contends however, with some force, that Mr Coupe must have known that he had no express or implied consent from Mr Maynard, so he must have been acting dishonestly.  But with respect, I have little doubt that Mr Coupe and his friends believed that Mr Maynard had no right to the monies at all, that there was no consent necessary, and that the monies were their money and that they had the right to retrieve it. That latter “rights” may not have been enforceable in civil law, but the intention to take must be dishonest, and it was not.

[48]     I also note for completeness that if the Crown is right, and the law does not recognise an unlawful transaction in criminal law (and I see the obvious merit in that contention), then Mr Maynard’s claim to protection against an adverse claim would likely fall on deaf ears.  But I do not resolve the appeal on that basis. Any such claim would need to be examined on the full merits.  For present purposes it is enough that the summary of facts do not make out a dishonest claim by Mr Coupe to the payment of money.

[49]    A residual policy issue remains. The Court does not condone criminal transactions. To  the extent that the offending formed part of a wider matrix of illegality, the Court is entitled, subject to settled principles, to take that into account

in sentencing as an aggravating factor.[8]

[8] R v Newton [2013] NZHC 641; R v Teremoana (1990) 54 SASR 30,36; Lane v Auckland City

Council [1975] 1 NZLR 353 at 355.

[50]     In those circumstances, I am of the view that the charge was inappropriate and the summary of facts do not make out the charge.

[51]     The subsidiary submission by the Crown, namely that the plea of guilty was entered is not without substance.   There must be an issue of whether or not the defendant is estopped from now asserting a lack of dishonest intention.  But the plea was to a summary of facts.  Questions of culpability at law remain the domain of the Court, and where the facts to not establish the elements, the guilty plea ought not to stand.

Sentence

[52]     As to sentence, the only significant consequence of the change to the charge for which Mr Coupe must be found guilty is that the starting point is reduced.  The Crown makes no substantive submissions on this point, and I consider that Ms Guy- Kidd has helpfully and sensibly identified an appropriate starting point.  But I do not want to sentence in a piecemeal way and the parties have agreed to  confer on sentence and file memoranda.  I will look to deal with this as soon as the memoranda are received.  It can be anticipated that sentence will be reduced.

[53]     In the interim, I do not quash conviction for practical reasons outlined by counsel and will await final sentencing for that purpose.  I also record that Ms Guy- Kidd may wish to be heard orally but it may be that some agreement can be reached between defence and Crown on an appropriate sentence.

Addendum

[54]     I have now had the benefit of a joint memorandum from counsel.  It is now agreed that a sentence of 23 months should be substituted.  I accept that this is an appropriate outcome.

[55]     Accordingly, the appeal is successful.  The sentence of two years nine months is quashed and a substitute sentence of 23 months is imposed.

Solicitors:

AWS Legal, Invercargill
Preston Russell Law, Invercargill