Couper v R
[2017] NZCA 588
•13 December 2017 at 10.15 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA530/2017 [2017] NZCA 588 |
| BETWEEN | NATHAN JAMES COUPER |
| AND | THE QUEEN |
| Hearing: | 30 November 2017 |
Court: | Clifford, Simon France and Collins JJ |
Counsel: | E A Hall and P J Ross for Appellant |
Judgment: | 13 December 2017 at 10.15 am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Collins J)
Introduction
Mr Couper appeals a sentence of seven years’ imprisonment imposed upon him by Judge Hobbs on 14 September 2017 in relation to charges of wounding with intent to cause grievous bodily harm and kidnapping.[1]
[1]R v Couper [2017] NZDC 20720 at [21].
Two grounds of appeal are advanced:
(a)the starting point of nine years’ imprisonment was too high; and
(b)insufficient credit was given for Mr Couper’s personal mitigating factors, namely remorse and rehabilitation.
Background
In the early hours of 1 February 2016, the complainant received a request to go to the address of a Ms Smith in Upper Hutt. The complainant was driven to that address by a friend. After arriving at Ms Smith’s address, the complainant sensed something was wrong and told his friend to drive off. As his friend attempted to do so, two men intervened. One of those men was Mr Couper, who dragged the complainant from the front passenger seat of the car by his neck. Mr Couper was holding a tyre iron. At this stage Ms Smith was yelling “smash him”. Another vehicle then pulled up beside them. Mr Couper then dragged the complainant into the back seat of that vehicle. Mr Couper proceeded to hit the complainant about the head and upper body. The vehicle with the complainant inside was then driven off to another address in Upper Hutt.
At the second address, another male appeared, who the complainant recognised as Mr Cassidy. Mr Couper and Mr Cassidy proceeded to hit the complainant about the head and upper body. Mr Couper used the tyre iron and Mr Cassidy a metal pole. The complainant’s teeth were damaged, his lips were split, he received cuts and abrasions to his head, arms and upper body, and his jaw bone was cracked. The complainant also lost consciousness during this beating.
After the beating stopped, Mr Couper got a large knife and cut off most of the complainant’s dreadlocks, which he stuffed into the complainant’s mouth. Mr Couper then taped the complainant’s mouth shut using duct tape. Mr Couper also taped the complainant’s wrists together and cut off most of his clothing, leaving him naked apart from a t-shirt. He was then taken back to the car which he had arrived in. He was placed in the boot of the car and driven around the Upper Hutt area for some time. Eventually the car stopped and Mr Couper opened the boot and started to again hit the complainant. The complainant was then driven off again to another address in Upper Hutt, where he was left bloodied and effectively naked on the side of the road.
In addition to his physical injuries, the complainant suffered post-traumatic stress disorder.
Mr Cassidy pleaded guilty and was sentenced on 9 August 2016 to five years and six months’ imprisonment in relation to one charge of wounding with intent to cause grievous bodily harm, based upon a starting point of eight years’ imprisonment.[2] He was afforded a 25 per cent discount for his guilty plea and a five per cent discount for remorse.[3]
[2]R v Cassidy [2016] NZDC 15176 at [18].
[3]At [17].
Approximately two weeks before his trial was scheduled to commence, Mr Couper sought a sentence indication. A sentence indication was provided by Judge Hobbs that involved a starting point of nine and a half years’ imprisonment.[4] Judge Hobbs also indicated a 20 per cent discount if Mr Couper pleaded guilty.[5] Mr Couper declined the sentence indication but, in any event, he pleaded guilty a few days before trial on 11 August 2017 to amended charges and a new summary of facts that deleted references to specific incidents of violence.
Sentencing decision
[4]R v Couper DC Wellington CRI-2016-096-773, 3 August 2017 at [19].
[5]At [22].
In sentencing Mr Couper, Judge Hobbs identified the wounding with intent to cause grievous bodily harm as being the lead offence.[6] The Judge referred to five aggravating factors, namely: planning and premeditation; use of a weapon; attacks to the head; the vulnerability of the complainant; and, the fact that two attackers were involved.[7]
[6]R v Couper, above n 1, at [8].
[7]At [9]–[10], citing R v Taueki [2005] 3 NZLR 372 (CA).
The Judge noted there was “an issue of parity”,[8] and adopted the eight year starting point that was used when Mr Cassidy was sentenced in relation to the wounding charge.[9]
[8]R v Couper, above n 1, at [9].
[9]At [15].
Judge Hobbs determined, however, Mr Couper played a greater role than Mr Cassidy, as reflected in the fact that he faced the additional charge of kidnapping.[10] On that basis, Judge Hobbs imposed a starting point of nine years’ imprisonment for both charges.[11]
[10]At [15].
[11]At [16].
The Judge followed his indicated credit of 20 per cent for Mr Couper’s guilty plea.[12] Judge Hobbs said that discount was adequate to cover all things that had been referred to by Mr Couper’s counsel, Ms Hall, when she addressed the court in relation to Mr Couper’s remorse and the fact he had taken responsibility for his offending.[13]
[12]At [20].
[13]At [20].
The Judge rounded out the sentence he imposed by deducting a further two months to reach the final sentence of seven years’ imprisonment.[14]
Starting point
[14]At [21].
Ms Hall, who argued this aspect of Mr Couper’s appeal, submitted the starting point adopted was manifestly excessive. She maintained the Judge failed to take into account the general desirability of consistency with appropriate sentencing levels and placed too much reliance on the starting point adopted for Mr Cassidy. It was suggested the appropriate starting point would have been “in the five to six year category”, and should not have been any more than seven years’ imprisonment.
The Judge placed Mr Couper’s offending within band two of R v Taueki (five to 10 years’ imprisonment), which is considered appropriate for grievous bodily harm offending when two or three aggravating features are present.[15] Premeditation, attacking the head, use of a weapon and multiple attackers were clearly aggravating features in this case.
[15]R v Taueki, above n 7, at [34] and [38].
In our assessment, the Judge did not err in taking vulnerability into account as a separate factor in the circumstances of this case. The complainant was stripped almost naked and confined in the boot of a car. This Court has confirmed previously that vulnerability is not limited to any inherent characteristic of the complainant, but may include a person being rendered defenceless by an attack.[16]
[16]King v R [2015] NZCA 436 at [22].
We accept Ms Hall’s submission that starting points must reflect the overall culpability, rather than a mathematical calculation of aggravating factors.[17] The overall culpability of Mr Couper in relation to both charges, however, clearly justified a starting point of nine years. In reaching that conclusion, we note:
(a)Mr Couper’s participation in relation to the wounding charge was more serious than Mr Cassidy. His separate violent acts included cutting the complainant’s dreadlocks and forcing them into his mouth, as well as hitting the complainant while he was in the boot of the car.
(b)Two of the three cases referred to by Ms Hall to justify her proposed starting point involved charges of injuring with intent to injure and one involved injuring with intent to cause grievous bodily harm.[18] The present case involves the more serious charge of wounding with intent to cause grievous bodily harm.[19]
(c)An uplift of 12 months for the kidnapping charge was generous to Mr Couper, particularly when that charge involved additional features of violence. Kidnapping is a serious charge that attracts a maximum penalty of 14 years’ imprisonment.[20]
[17]R v Taueki, above n 7, at [30] and [42].
[18]R v Mehana HC Auckland CRI-2007-004-23676, 11 December 2009; R v Haere DC Palmerston North CRI-2010-054-1861, 17 December 2010; and R v Tidd DC Rotorua CRI‑2008-0063-2503, 26 March 2009.
[19]Section 189(1) of the Crimes Act 1961 (injuring with intent to cause GBH) attracts a maximum penalty of 10 years’ imprisonment. Section 189(2) (injuring with intent to injure) attracts a maximum penalty of five years’ imprisonment. Section 188(1) (wounding with intent to cause GBH) attracts a maximum penalty of 14 years’ imprisonment.
[20]Crimes Act, s 209.
The present case is therefore more closely aligned with this Court’s decision in Lake v R,[21] where an eight and a half year starting point was upheld on appeal for one charge of wounding with intent to cause grievous bodily harm, in similar circumstances. The aggravating features in that case were: extreme violence; the premeditated nature of the attack; multiple attackers; vulnerability of the complainant; and, that the offending was gang-related.[22] There was no weapon involved in that case.
[21]Lake v R [2017] NZCA 39 at [5]–[6].
[22]At [4].
For these reasons, we see no error in the starting point adopted by Judge Hobbs. There is therefore no merit in the first ground of appeal.
Personal mitigating factors
The second ground of appeal is against the Judge’s decision to not afford Mr Couper discrete discounts for mitigating factors. This aspect of the appeal was argued by Mr Ross.
In terms of remorse, the pre-sentence report writer noted that Mr Couper:
… appeared to minimise his actions by saying that it “looks worse than it needed to be” and reportedly did not use a weapon in his offending. Mr Couper explained that there was no intent to harm the victim and that he “only” wanted to give the victim a “fright” so that he paid his debt.
A letter written by Mr Couper that was made available to the Judge conveys regret, but not in relation to the harm caused to the complainant. Mr Couper expressed his regret in relation to his personal circumstances and the impact of his offending on his family and friends. In these circumstances the Judge did not need to give a discount for Mr Couper’s so-called remorse.[23] Compared with Mr Cassidy, Mr Couper showed little sign of genuine remorse.
[23]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
Mr Couper’s efforts to reintegrate into society were conveyed in the same letter made available to Judge Hobbs, and a letter from two associates of Mr Couper who described his voluntary work in their church. Those efforts, however, had to be considered alongside the stark facts of Mr Couper’s criminal history. In 2012, he was sentenced to eight months’ imprisonment for assault with intent to injure. In 2013, he was sentenced to five years and five months’ imprisonment for serious drug offending. His current offending occurred only months after he had completed the prison sentence imposed in 2013.
The Judge also had before him comments from the pre-sentence report writer indicating Mr Couper had low prospects of rehabilitation. In those circumstances, the Judge did not err in failing to specifically provide a discount for Mr Couper’s alleged efforts at rehabilitation.
In any event, the Judge awarded a two month discount on top of the generous 20 per cent discount for a guilty plea in the weeks leading up to trial.
In these circumstances, we also see no merit in the second ground of appeal.
Result
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
8