Cowell v Police
[2022] NZHC 3088
•24 November 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-409-000147
[2022] NZHC 3088
BETWEEN KINGSTON TAHARUA COWELL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 9 November 2022 Appearances:
K J Gray for the Appellant
L Fiennes for the Respondent
Judgment:
24 November 2022
JUDGMENT OF NATION J
Introduction
[1] Kingston Taharua Cowell pleaded guilty to charges of demanding with menaces,1 unlawful possession of ammunition,2 possession of a knife in a public place,3 and driving whilst forbidden.4 On 24 August 2022, Mr Cowell was sentenced by Judge Farish in the District Court to 21 months’ imprisonment on those charges with leave to apply for home detention.5 Mr Cowell appealed that sentence on the basis it was manifestly excessive.
1 Crimes Act 1961, s 239(2) – maximum penalty of seven years’ imprisonment.
2 Arms Act 1983, s 45(1) – maximum penalty of four years’ imprisonment and/or a fine of $5,000.
3 Summary Offences Act 1981, s 13A – maximum penalty of three months’ imprisonment or a fine of $2,000.
4 Land Transport Act 1998, s 52(1)(c) and (2) – maximum penalty of a $10,000 fine.
5 R v Cowell [2022] NZDC 16237.
COWELL v POLICE [2022] NZHC 3088 [24 November 2022]
Facts
[2] On 20 September 2021, Mr Cowell was served a Road Safety Directive Notice and forbidden from driving until he obtained an appropriate licence.
[3] At approximately 11.20 am on 5 March 2022, Mr Cowell arrived at a flat on Breens Road, Bishopdale, Christchurch, with two associates. The victim was visiting the address at the time. Mr Cowell entered a bedroom at the address where the victim was. Mr Cowell saw the victim’s keys on an Audi lanyard beside the victim and said “are those your keys?” The victim confirmed they were. Mr Cowell took the keys, knowing they belonged to the victim and without permission from him.
[4] Approximately five minutes later, Mr Cowell made the victim leave the bedroom and come into the lounge room where Mr Cowell’s two associates were. One of the associates was wearing a gang patch. Mr Cowell took the victim’s cell phone from him and gave him an ultimatum that he could let him take his phone or he could keep his phone and take a hiding. The victim did not want to be beaten up and yielded in duress to Mr Cowell’s threat of violence.
[5] Mr Cowell and his associates left the address in the victim’s Audi. He had no permission to take the vehicle. In the vehicle was a pair of Nike running shoes belonging to the victim.
[6]These events gave rise to a charge of demanding with menaces.
[7] At approximately 2.57 pm that day, Mr Cowell was driving the stolen Audi vehicle south on Leacroft Street, Christchurch. The vehicle was subsequently stopped by Police on Clotilda Place. This gave rise to a charge of driving while forbidden.
[8] Mr Cowell was placed under arrest and searched. He was wearing a small black bag around his body that contained a wooden-handled folding pocketknife and four rounds of .22 calibre ammunition. Mr Cowell does not hold a firearms licence. For this, he was charged with possession of a knife in a public place and unlawful possession of ammunition. In explanation, he stated he was driving the victim’s car and was on his way to give it back.
[9]The victim’s property was returned to him without any damage.
District Court decision
[10] On the lead charge of demanding with menaces, the Judge adopted a starting point of two years’ imprisonment. She noted most sentences for demanding with menaces are around the range of two years to two years and 10 months’ imprisonment. She considered the offending was aggravated by the actual threats made, which were enhanced by the presence of his two associates and the fact one of them was wearing a gang patch. Although she lacked an updated victim impact report, the Judge also observed the offending was distressing for the victim and had a significant effect on him.
[11] The Judge uplifted the sentence by three months for the possession of a knife and unlawful possession of ammunition charges. She said the possession of ammunition was not serious and comprised only four small bullets without a gun. She imposed a further uplift of four months to take into account Mr Cowell’s history of violent offending. She said this history was very concerning and indicated he had been likely institutionalised in the prison environment.
[12] The Judge then allowed a discount of 17 per cent for guilty pleas. She said those pleas were not entered at the earliest opportunity but as soon as the charge was reduced from aggravated robbery to demanding with menaces.
[13] The Judge then referred to the matters raised in Mr Cowell’s s 27 report. The Judge noted Mr Cowell’s s 27 report disclosed that he is a Māori man with a somewhat troubled upbringing, having been sent to live away from his parents for a period of time. She noted this had a significant traumatic effect upon him and, like many young Māori men, left him feeling disenfranchised. She acknowledged Mr Cowell was diagnosed with attention deficit hyperactivity disorder (ADHD) at a relatively young age, which affected his schooling, and that he gravitated towards anti-social peers. The Judge identified Mr Cowell’s biggest problem, in terms of his cycle of offending, was his reliance on illicit substances, particularly methamphetamine. She considered his deprivation, lack of ability to engage in meaningful education, and alcohol and drug issues had led him to choose a harmful lifestyle. However, the Judge recognised that it is only now, after harming a considerable number of people and rejecting opportunities to change, that he is willing to change. For these matters, the Judge allowed a further 10 per cent discount.
[14] The Judge then allowed a further two months’ discount for the difficulties Mr Cowell faced in accessing rehabilitation. This resulted in an end sentence of 21 months’ imprisonment, with release conditions to run for six months following the expiry of his sentence.
[15] The Judge said what Mr Cowell really needed was a residential treatment programme and, if one were available, she would have imposed a sentence of home detention. However, she acknowledged no such programme was currently available due to resourcing issues and a rehabilitative programme was unlikely to be offered under a short-term sentence of imprisonment. In these circumstances, the Judge gave Mr Cowell leave to apply for home detention and observed the He Waka Tapu programme would be an appropriate residence for such a sentence. She remarked that it was “demoralising” to send Mr Cowell to prison as it was not realistically going to help his position but regretted that this appeared to be an instance of “post code justice”.
[16]On the driving whilst forbidden charge he was convicted and discharged.
Principles on appeal
[17] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.6 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7
6 Criminal Procedure Act 2011, ss 250(2) and 250(3).
7 Ripia v R [2011] NZCA 101 at [15]; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
Submissions
Appellant’s submissions
[18] Ms Gray, counsel for Mr Cowell, submitted there are a combination of factors that rendered the end sentence imposed in this case manifestly excessive, namely that:
(a) the starting point was excessive;
(b) the Judge did not consider the totality of the offending;
(c) the uplift for previous convictions was too high;
(d) the discount for guilty pleas was inadequate; and
(e) the discount for mitigating factors was inadequate.
Respondent’s submissions
[19] For the Crown, Ms Fiennes submitted there was no error in the end sentence adopted for the offending, which involved significant intimidation and the threat of violence, as well as the removal of the victim’s car and phone (albeit for a short time only). She submitted, given the aggravating features present, a starting point of two years’ imprisonment was within range. She submitted the uplifts applied were appropriate and the discounts provided were within range.
Analysis
Starting point
[20] On the demanding with menaces charge, Ms Gray identified cases where a lower starting point of 18 months was adopted, in contrast to the two years to two years and 10 month range referred to by the Judge.8 Ms Gray submitted, in light of the limited aggravating factors present, the offending does not justify the starting point adopted of two years’ imprisonment. While she acknowledged the offending involved threats of violence, she said it did not involve actual violence, premeditation or a home invasion (as the victim was not at his own home), and the stolen property was returned.
8 Webster v Police [2017] NZHC 2685; Regan v R [2012] NZCA 227.
She also noted the victim did not provide an updated victim impact statement and advised that Mr Cowell does not accept he is involved in a gang himself.
[21] For the Crown, Ms Fiennes submitted a starting point of two years for the demanding with menaces charge was available to the Judge and within range. She submitted that starting point was supported by Emery v Police, R v Whaanga and Opetaia v R.9 Ms Fiennes argued the cases referred to by the appellant do not suggest the starting point of two years was manifestly excessive. While she acknowledged that cases involving demanding with menaces can attract starting points below two years, she submitted all the cases cited where such a starting point was adopted involved fewer aggravating features than the present offending.
[22] There is no guideline case for demanding with menaces. However, counsel for the Crown helpfully referred to the following cases that are of assistance in determining the appropriate starting point, having regard to the particular aggravating factors involved:
(a) In Regan v R, the appellant walked into a bank premises in central Auckland while heavily intoxicated.10 He demanded the money in the till, telling the teller to move to it. He spoke in a commanding voice that left the 18-year-old teller intimidated and shocked. The teller handed him
$905. The Court of Appeal considered the offending involved no actual violence or explicit threat of violence. He acted alone, without the support of an associate and without the added menace of gang affiliations. The victim was also physically separated from the appellant and had the benefit of the bank’s security systems. The Court considered a starting point of 18 months’ imprisonment was appropriate.
(b) In Webster v Police, the appellant, with two associates either nearby or with him, approached two others in the central city.11 He grabbed an iPhone worth $1,400 from one of the victims. He then threatened to “hook” the other victim if he did not hand over his phone. He had his fist
9 Emery v Police [2014] NZHC 430; R v Whaanga [2019] NZHC 2427; Opetaia v R [2011] NZCA 621.
10 Regan v R, above n 8.
11 Webster v Police, above n 8.
clenched and gave the appearance of intending to strike. The High Court considered a starting point of 18 months’ imprisonment was within range but an uplift of one month was also required to reflect the theft of the phone.
(c) In R v Whaanga, the offender was attending a social gathering when the victim arrived in his vehicle with three friends.12 With a female friend, the offender walked up to the driver’s door, removed the keys from the ignition and said “Sieg fucking heil, get the fuck out of the car”. Fearing for his and his friends’ safety, the victim got out of the car. The offender then got into the car and, in the company of his friend, drove off. He was arrested three days later. Although the car was eventually returned, it needed repair work that the victim could not afford, leaving him without a car for months and requiring him to leave his job. The Judge reviewed a range of sentencing judgments for demanding with menaces, and considered the range lies between 14 months and two years’ imprisonment. Given the offending did not involve actual violence and he essentially acted alone (although the language used brought with it an implicit gang threat), the Judge adopted a starting point of 21 months’ imprisonment.
(d) In Emery v Police, the appellant and three other patched gang members were invited into the victim’s address.13 They were seeking money the victim was said to have owed and demanded “where’s your money”. They ordered the victim to pack up and hand them his PlayStation and give them his EFTPOS card and its PIN. The appellant told the victim he would return the PlayStation when the victim gave him $1,500 (although this was later reduced to $100 due to the victim’s father’s interventions). The offenders took the property to Cash Converters and received $200 for it. The Judge noted that, while the offending did not involve a home invasion, the appellant was unlawfully present in the victim’s home once he demanded the victim hand over his property. A starting point of two years’
12 R v Whaanga, above n 9.
13 Emery v Police, above n 9.
imprisonment was upheld on appeal for what was described as a “serious stand-over event … with force of numbers”, also taking into account the appellant’s extensive list of similar criminal convictions.
(e) In Opetaia v R, the offender and an associate, dressed in gang regalia, confronted a bartender.14 They demanded protection money of $1,200 per month by saying “we are masters of this land, we own this territory”. The offender’s associate grabbed the victim by the shirt and threatened to damage the store and later return if their demands were not met. The victim handed over approximately $5 in coins to the offender, who spent it in gambling machines as he left the premises. The Court of Appeal considered the offending involved an extortion racket by gang members in which there was an increased level of intimidation by two persons being present when the appellant delivered the threats, and noted they were both dressed in gang regalia and demanding considerable money on an ongoing basis. The starting point of two years’ imprisonment was upheld on appeal.
(f) In R v Thomas, the defendant and an associate went to the victim’s house in the early hours of the morning.15 They were both wearing gang patches. They claimed the victim had stolen money from them and said they would not be leaving without taking some “stuff”. Items were stolen from the house to a value of around $1,500 and the occupant was threatened that she would be stabbed by the associate who was holding a knife. The defendant then put his hands around the victim’s neck and started to choke her in view of her son to the point she thought she was going to pass out. The defendant told the victim to give him her phone and she could go to her son, which she did. The victim did not receive any injuries and the property was returned voluntarily. The Judge identified the aggravating factors were unlawful presence in the victim’s home, violence used, the number of items stolen, two people involved in the offence, and the premeditation and intimidation involved (including wearing gang
14 Opetaia v R, above n 9.
15 R v Thomas [2016] NZHC 3083.
patches). A starting point of two years and eight months’ imprisonment was adopted.
[23] The offending in this case involved threats of violence, implicitly to be inflicted by a group, and the presence of multiple offenders, one of whom was wearing a gang patch. While there was no actual violence or a home invasion (as it was not the victim’s address), the victim was coerced into moving into a different room where he was met by the associates. The whole scene would have been seriously intimidating for the victim. The events occurred in a sequence, consistent with Mr Cowell’s confidence that he would benefit from having the support of others and that he could bully and intimidate the victim into handing over property to him.
[24] The property was returned without damage once Mr Cowell was apprehended. However, there was significant value in the items taken (namely the Audi vehicle and cell phone) and the victim was left very distressed. The cell phone would also have been of considerable personal value to the victim.
[25] In his victim impact statement written on the day of the offending, the victim stated he felt “traumatised” and “terrified” as a result of the offending. There was no reason to consider the distress caused to the victim would have been less simply because there had been no updated victim impact statement available at sentencing.
[26] In the circumstances, I consider the starting point adopted by the Judge of two years’ imprisonment was within the available range.
Totality
[27] Ms Gray submitted, after adopting a two-year starting point and applying an uplift for the weapons offending, the Judge failed to consider the principle of totality and thereby adopted a starting point out of proportion to the gravity of the offending.
[28] Ms Fiennes submitted an uplift of three months for the additional charges of possession of ammunition and possession of a knife was well within range and did not require a further adjustment for totality. She submitted a greater increase could have been warranted.
[29] Pursuant to s 85 of the Sentencing Act 2002, when cumulative sentences of imprisonment are imposed, they must not result in a total period of imprisonment that is wholly out of proportion to the gravity of the overall offending.
[30] Here, the Judge uplifted the starting point by three months for the additional charges of possession of four rounds of .22 calibre ammunition and possession of a pocketknife. These items were located in a black bag Mr Cowell was wearing around his body when he was arrested later that day. I accept the Judge did not have explicit regard to the totality principle. However, the failure of a Judge to mention the totality principle is of no moment if the sentence imposed is not out of proportion to the gravity of the offending.16
[31] The Judge treated the possession of four rounds of ammunition as being less serious because, at the time, Mr Cowell did not have a gun. Although he was located with a pocketknife on the same day as the demanding with menaces offending, there was no evidence that he intended to use it in connection with that offending. But, unlawful possession of ammunition in these circumstances is not a trivial matter because of the way it demonstrates a disregard for the legal restrictions as to when and in what circumstances a person can be in possession of ammunition. The possession of a knife was also potentially dangerous in circumstances where an offender did not have the knife for a lawful purpose and was found in possession of it not long after being involved in an incident where possession of a knife increased the risk of it being used in a way that could have led to injury.
[32] I do not consider the total starting point of 27 months’ imprisonment was wholly out of proportion to the gravity of the overall offending.
Uplift for previous convictions
[33] Ms Gray submitted the four-month (or 15 per cent) uplift imposed for Mr Cowell’s previous convictions was disproportionate to the starting point and should not have exceeded three months. She submitted it does not appropriately reflect that Mr Cowell’s last relevant conviction (for aggravated robbery) was almost a decade
16 Kite v R [2018] NZCA 485 at [21]; and Herlund v R [2021] NZCA 71 at [58].
ago in September 2013 when he was aged only 20, and such an uplift is akin to sentencing him again for an offence he has already expiated.
[34] Ms Fiennes acknowledged the aggravated robbery conviction was relatively historical but submitted, given Mr Cowell’s history of relevant dishonesty and violence-related offending, an uplift of four months was within range.
[35] The Sentencing Act specifies the Court must take into account the number, seriousness, date, relevance and nature of any previous convictions of the offender.17 In Reedy v Police, this Court considered the function of applying an uplift for previous convictions.18 The Court observed that a criminal history does not, in itself, justify an uplift, it must have some relevance to the current sentencing and remain proportionate to the starting point.19 It explained that convictions may be taken into account as an indicator of character and culpability, because they show the need for a greater deterrent response, and as an indicator of the risk of reoffending.20
[36] Mr Cowell is aged 29 and has 28 previous convictions for offending committed between 2010 and 2020. As the Judge identified, despite his relatively young age, Mr Cowell has a history of violent offending for which he has received significant periods of imprisonment and more recent dishonesty-related offending. In 2012 he was sentenced to one year and two months’ imprisonment for injuring with intent to injure (family violence) (in 2011), male assaults female (2011) and assault with intent to injure (2010). Then in 2015 he was sentenced to four years and six months’ imprisonment for aggravated robbery (firearm) (committed in 2013), unlawful possession of a firearm (2013) and wilful damage (2014). At this time, he also received his first strike warning under the now repealed three strikes regime. He was released on parole in October 2018. In December 2019 Mr Cowell was sentenced to a total of 14 months’ imprisonment for burglary, possession of a knife in a public place, possession of methamphetamine utensils and other driving offences committed earlier that year. He was most recently disqualified from driving for a year on 20 August 2020.
17 Sentencing Act 2002, s 9(1)(j).
18 Reedy v Police [2015] NZHC 1069.
19 At [18]-[19].
20 At [19].
[37] Ms Fiennes referred to Opetaia v R, where the Court of Appeal considered whether a six-month (25 per cent) uplift for previous convictions was outside the available range.21 There, the appellant had a number of previous convictions for historical serious violent offences (not specified in the judgment), the last of which occurred in 1996, some 13 years before the index offending. The Court found that although the appellant had not received a prison sentence for any of the 10 offences he had committed since 1996, his present offending demonstrated he had continued to be involved in serious criminal offending. The Court found the uplift was not excessive.
[38] I also have regard to Te Hau v R, where the Court of Appeal quashed an uplift of six months (16.67 per cent) for an offender’s previous convictions.22 The offender was sentenced for aggravated robbery and had a previous conviction for that offence from 2002 (seven years earlier when he was 18 years old). The Court accepted this offending was similar in kind and therefore relevant, but that the need for particular individual deterrence and community protection was less given he had not reoffended in that way for a reasonably significant period of time. In the Court’s view, no uplift was warranted, although it observed a small uplift would not have been outside the sentencing discretion.
[39] Mr Cowell’s 2013 aggravated robbery was of relevance given the demanding with menaces charge involved threatened violence. That earlier offending was also committed through use of a firearm, increasing the concern relating to Mr Cowell having been found in possession of ammunition with this latest offending.
[40] As a general principle, the greater the period of time within which there is no relevant offending, the less weight the courts are likely to give to previous convictions.23 However, the period between that offending and the present offending is of less benefit to Mr Cowell given he was released on parole in October 2018, went on to commit a burglary in 2019 and, in December 2019, was sentenced for possession of a knife in a public place.
21 Opetaia v R, above n 9.
22 Te Hau v R [2013] NZCA 431.
23 Cashmore v Police [2017] NZCA 508 at [11].
[41] On the basis of his previous involvement in both dishonesty-related offending and violence, I agree the uplift of four months to meet the needs of community protection and deterrence was justified. As noted by his probation officer in the pre- sentence report, given the frequency with which Mr Cowell had offended, his apparent lack of responsiveness to previous rehabilitation interventions and limited progress in the community on successive releases, he was assessed to pose a moderate to high risk of offending
Discount for guilty pleas
[42] Ms Gray submitted Mr Cowell pleaded guilty as soon as the charge was amended from aggravated robbery and he was prepared to do so at an early opportunity. She highlighted that, by virtue of the aggravated robbery charge Mr Cowell initially faced, he was at that time potentially liable for his second strike under the previous three strikes regime. She advised there had not been an agreed resolution until the pre-trial callover stage but, given his motivation for resolution and the three strikes legislation that applied to him, a 17 per cent reduction for his guilty pleas could hardly have been considered generous.
[43] Ms Fiennes accepted Mr Cowell entered a guilty plea to an amended charge. However, she argued the matter had progressed significantly (indeed, to pre-trial callover) before resolution occurred. In circumstances where Mr Cowell received the benefit of the resolution on a lower charge, and referring to Hessell v R, she submitted a 17 per cent discount was available to the Judge.24
[44]In Hessell v R, the Supreme Court relevantly observed:
[62] Guilty pleas are often the result of understandings reached by accused and prosecutors on the charges faced and facts admitted. To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit. For example if the Crown agrees to accept a plea to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea can be a concession in itself. If the full credit for an early plea is then also given, the sentence may not properly reflect the offending. …
24 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[45]The Court later said:25
… the credit that is given must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case.
[46] It appears Mr Cowell entered a guilty plea to the demanding with menaces charge at the pre-trial callover stage, as soon as it was amended from aggravated robbery. However, in line with the observations in Hessell, Mr Cowell benefitted appreciably from the plea arrangement. In the absence of further information as to the circumstances surrounding the amendment to the charges, such as the extent of the material difference between the summaries of facts for the original versus the amended charge, I can see little difference between Mr Cowell’s offending and that which would justify a charge under s 235(b) of the Crimes Act 1961 (that is, aggravated robbery by robbing a person together with another person).26 I also note that it was open to him to enter pleas to the remaining charges at an earlier opportunity given the overwhelming evidence in relation to those.
[47] In these circumstances, I am satisfied the discount of 17 per cent was readily available to the Judge.
Discount for matters contained in the s 27 report
[48] Ms Gray submitted that a greater discount was warranted for the factors identified in Mr Cowell’s s 27 report, particularly given he faced mental health issues in addition to significant cultural issues. She said the report outlined Mr Cowell’s experiences of abuse, mental health and behavioural challenges (including a diagnosis of ADHD from a young age), perceived abandonment issues and dislocation from his whānau, educational under-achievement and truancy, and drug abuse.
[49] She also highlighted the fact that, in speaking to Dr Jarrod Gilbert and others, Mr Cowell had spoken only recently to others of abuse he suffered also at a health camp.
25 Hessell v R, above n 24, at [74].
26 See Knight v R [2021] NZHC 2372 at [17]-[18].
[50] The Judge had the benefit of a detailed and carefully written pre-sentence report, the s 27 report prepared by Dr Gilbert and an alcohol and other drug assessment and treatment service report prepared for He Waka Tapu and Odyssey House.
[51] There is evidence in the reports suggesting Mr Cowell suffered from mental health (including a diagnosis of ADHD) and behavioural challenges from a young age. That led, at times, to dislocation from his whānau, educational under-achievement and truancy, and drug abuse, which must have all been factors in his criminal offending. However, Mr Cowell was not brought up in a gang environment. Mr Cowell said he understood his father was in a gang. His mother told Dr Gilbert that was prior to their relationship and never while Mr Cowell’s parents were together. She said she would not have tolerated that.
[52] Although the pre-sentence report referred to Mr Cowell only recently being diagnosed as suffering from ADHD, his mother told Dr Gilbert it was staff at the kōhanga Mr Cowell attended who suggested he be assessed for ADHD. She had said it was a long, drawn out process before the diagnosis was reached and Ritalin prescribed.
[53] It would appear Mr Cowell’s parents did provide examples of how people in his family could live pro-socially. The s 27 report referred to his father working in a dairy factory, then as a welding tutor, and his mother as a cleaner, café assistant and, for the past 22 years, in a range of administrative roles.
[54] Mr Cowell’s parents arranged for him to go to [a Health Camp] when he was about seven because they thought this would be positive for him at a time when his behaviour at primary school was causing concern.
[55] His mother said they sent him to live with an aunt in Hamilton, away from where the family lived in Auckland, when he was 11 because they were desperate. Mr Cowell returned to Auckland to live with his family as a teenager but often truanted from school, associated with various neighbourhood gangs and became involved in criminal activity.
[56] In 2008, when he was 15 years old, Mr Cowell’s family again tried to do the best for him by deciding to move their whole whānau to Christchurch. Unfortunately, Mr Cowell as a teenager became increasingly involved in crime. He also began using methamphetamine, recreationally from the age of 16 and habitually since his early twenties. The family moved back to Auckland after Mr Cowell was remanded in custody for the aggravated robbery offending in 2013.
[57] Mr Cowell told Dr Gilbert he used to get a thrill from crime, that he was aware his poor decision-making leads him back to jail, and he does stupid things but says to himself “it doesn’t matter because this is the risk. Jail. So my decisions is, ‘Ah, fuck it. It’s only jail’.”
[58] To the probation officer, Mr Cowell acknowledged he had found reintegrating back into the community “really hard” and had in the past struggled to maintain motivation and compliance. Consistent with that, the probation officer noted this current offending occurred only two months from his previous release from custody in July 2021.
[59] On 18 March 2015, Mr Cowell was sentenced to four years and six months’ imprisonment for aggravated robbery with a firearm and was given a first strike warning. That was an experience he could have leant from. Instead, on 6 December 2019, he was sentenced to 14 months’ imprisonment for a range of offences committed between 7 March 2019 and 1 October 2019, including offences of dishonesty, breaching release conditions and bail conditions, and unlawfully taking a car.
[60] Mr Cowell acknowledges that much of his offending, including this most recent offending, has been committed in order to access methamphetamine.
[61] It is well-established that an offender’s personal background of trauma or deprivation can warrant a discount where there is a causal nexus with the offending — however that does not require the Court to be satisfied that those matters are a proximate cause of the offending.27 It has been frequently recognised that the existence of pervasive and persistent social disadvantage or systemic deprivation will
27 Carr v R [2020] NZCA 357 at [64].
result in impaired choice and diminished moral culpability so as to justify such a discount.28
[62] In the present case, the Judge carefully considered the s 27 report. She accepted it disclosed Mr Cowell had a somewhat troubled upbringing and exhibited the attributes shared by many disenfranchised young Māori men who are sent to live away from their whānau and are traumatised as a result. The Judge also had regard to the fact Mr Cowell was diagnosed with ADHD from a young age, struggled with his schooling, gravitated towards anti-social peers and developed a dependence on illicit substances, particularly methamphetamine. While the Judge did not explicitly refer to the pre-sentence report or drug and alcohol reports, her detailed discussion of the need for Mr Cowell to be placed in a residential treatment facility to address the underlying causes of his offending indicates she was well-acquainted with that material and any omission to consider it did not materially impact the ultimate outcome.
[63] The pre-sentence report identified that “[o]ffending supportive attitudes, violence proclivity and substance abuse are assessed to be key offending related factors [for Mr Cowell], along with his association with criminal associates”.
[64] I consider there was no error in the Judge’s allowance of 10 per cent for the background matters referred to in reports. It appropriately recognised the extent to which background circumstances were factors in his offending while also recognising that Mr Cowell had to be held responsible for the circumstances which put him at risk of the offending for which he had to be sentenced and put others in danger.
[65] The Judge provided an additional two months (or approximately 7.5 per cent) discount which she said was to reflect the difficulties Mr Cowell had faced in trying to engage in meaningful rehabilitation. She was referring to the difficulty he faced in obtaining a placement in a residential treatment programme which could help him to deal with his drug use, which was assessed as a significant factor in his offending.
28 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159]; Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.
[66] In providing for that discount, the Judge was recognising information in the reports which suggested Mr Cowell was now motivated to change and had the potential to do so. The pre-sentence report referred to Mr Cowell becoming “quite animated in expressing his interest in gaining support around employment”, with the belief it would help to keep him out of trouble. He is willing to engage in a re- diagnosis assessment as to his ADHD.
[67] Information from the pre-sentence report suggests Mr Cowell has some insight into why he offends. He recognised it would be difficult for him to undertake drug treatment in the community.
[68] Mr Cowell has the support of a partner who spoke of Mr Cowell’s attributes in a way that would indicate she would be likely to have a pro-social influence over him. The probation officer also spoke of the positive support which would be available from an aunt.
[69] With the additional two months’ discount, the total discount for matters relating to Mr Cowell personally, other than his guilty plea, was 17.5 per cent. That was adequate.
[70] What was missing in both the pre-sentence report and Dr Gilbert’s s 27 report was detailed information as to how Mr Cowell could be in the community in some situation where he would be able to engage successfully in a drug treatment programme and avoid all the circumstances and associations that would put him and others at the risk of further serious violent offending. The Judge recognised this was what he needed and optimistically reserved leave for Mr Cowell to apply for home detention if placement in a suitable residential facility became available.
[71] Section 27 of the Sentencing Act allows an offender to ask the court to hear how support from the family, whānau or community may be able to help prevent further offending by the offender. What might have helped Mr Cowell avoid a sentence of imprisonment was not so much a detailed account of his troubled past but detailed information as to how such support would be available to him, his willingness to accept that support and the responsibilities that go with it, and how, with that
support, the risk of further offending would be reduced. Unfortunately, the Judge had to sentence Mr Cowell without the benefit of such information.
Conclusion
[72] On an appeal, the focus must be on the end sentence. In the District Court, the Judge carefully considered all the relevant issues. She did that by engaging with all the information before her. I have not been persuaded there was any error in the conclusion she reached on particular issues or with the sentence that was ultimately imposed.
[73]For that reason, this appeal must be and is dismissed.
Solicitors:
K Gray, Barrister, Christchurch
Crown Solicitor’s Office / Raymond Donnelly & Co., Christchurch.
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