Owen-Cooper v Police - [2016] NZHC 1999

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2016-425-2 [2016] NZHC 1999

BETWEEN
DWAYNE ALEXANDER

OWEN-COOPER Appellant

AND

NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS Respondents

Hearing: 22 August 2016

Appearances:

K M Barker for the Appellant
M G McClenaghan for the Respondent

Judgment:

26 August 2016

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1] Mr Owen-Cooper appeals against a sentence of two years and six months imprisonment imposed following conviction on three separate and unrelated charges.1

[2] He was convicted of the following offences, for which the sentences were cumulative:

(a) injuring with intent to injure, carrying a maximum penalty of five years imprisonment,2 for which he was sentenced to 15 months
imprisonment;

1 Police v Owen-Cooper [2015] NZDC 25816.
2 Crimes Act 1961, s 189(2).

OWEN-COOPER v NZ POLICE AND DEPARTMENT OF CORRECTIONS [2016] NZHC 1999 [26 August 2016]

(b)driving while disqualified (third or subsequent), carrying a maximum penalty of two years imprisonment,3 for which he was sentenced to
12 months imprisonment;

(c) breaching a non-association order, carrying a maximum penalty of one year imprisonment or a fine not exceeding $2000,4 for which he was sentenced to three months imprisonment.

[3] The first ground of appeal is that the Judge failed to take into account the principle of totality, leading to a sentence that is manifestly excessive. That is not upheld for reasons which follow.

[4] A second ground is that there were personal circumstances not put to the sentencing Judge which the Crown now accepts warrant reflection on appeal.

Jurisdiction

[5] Mr Owen-Cooper can appeal the sentence imposed as of right.5 This Court will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence imposed and that a different sentence should be imposed.6 The Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 (the CPA) was not intended to signify departure from the position under the predecessor regimes in the Crimes Act 1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).7

Sentence under appeal

[6] The Judge reached his end sentence by adopting the starting point of

20 months imprisonment for injuring with intent to injure, 15 months for driving while disqualified for a third or subsequent time, and five months imprisonment for
the two charges of breach of release conditions. That totalled 40 months

3      Land Transport Act 1998, s 32(1)(a) and 32(4).
4      Sentencing Act 2002, s 96(1).
5      Criminal Procedure Act 2011, s 244.
6      Sections 247 and 250.
7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

imprisonment and a 25 per cent discount resulted in an end sentence of two years and six months.

First ground of appeal - totality

Submissions for the appellant

[7] On the charge of injuring with intent to injure, the Judge adopted a starting point of 20 months before making deductions for the appellant’s guilty plea. Counsel has made reference to prior case law which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZHC 1999
Decision Date: 26 August 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Dwayne Alexander Owen-Cooper appealed against a sentence of two years and six months imprisonment imposed following his conviction on three separate and unrelated charges. The respondents were New Zealand Police and the Department of Corrections. The appellant was convicted of injuring with intent to injure, driving while disqualified, and breaching a non-association order. He appealed on the basis that the sentencing judge failed to consider the principle of totality, leading to a manifestly excessive sentence, and that personal circumstances were not taken into account. The court found that the sentencing judge did consider the principle of totality, even if not expressly stated, and that the sentence was not excessive. However, the court did find that there were personal circumstances not before the sentencing judge which warranted a discount of 15%, reducing the sentence to two years and one month imprisonment.

The legal issues before the court were whether the sentencing judge failed to consider the principle of totality and whether there were personal circumstances not taken into account. The court found that the principle of totality was considered by the sentencing judge and that the sentence was not excessive. However, the court did find that there were personal circumstances not before the sentencing judge, and a discount of 15% was appropriate. The court found that the appellant suffered from significant mental health issues, which should be addressed. The court also found that the appellant had shown remorse and a willingness to participate in restorative justice, which warranted a discount. The court found that the appeal was allowed, and the sentence was reduced to two years and one month imprisonment.

Orders