R v Cooper

[2013] NZHC 2713

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-004-11453 [2013] NZHC 2713

THE QUEEN

v

JAMES GRANT COOPER

Hearing:                   18 October 2013

Appearances:           A J Pollett for Crown

A M Wharepouri, I M Brookie and K McCoy for Cooper

Sentence:                 18 October 2013

SENTENCING REMARKS OF ALLAN J

Solicitors:

Crown Solicitor Auckland

A M Wharepouri Auckland

R v COOPER [2013] NZHC 2713 [18 October 2013]

[1]      Mr Cooper, you appear for sentence this morning following your conviction on one count of manslaughter, for which the maximum penalty is life imprisonment, and one of attempting to pervert the course of justice, for which the maximum sentence is seven years imprisonment.

[2]      The manslaughter conviction was entered at the conclusion of your trial, when the jury found you not guilty of murder but guilty of manslaughter.   You pleaded guilty to attempting to pervert the course of justice at the first callover in this Court in October 2012.

Factual background

[3]      These  charges  arose  out  of  the  death  of  Javed  Mills  at  your  home  one morning in late July 2009.   Javed and you were friends.   For some time you had mixed in the same social group.   He was a talented musician who loved nothing more than playing his guitar, either in company or on his own, but he had his personal problems associated largely with his drug habit.  In the early part of 2009 he was left without accommodation and seems to have spent time in the homes of several  people,  including  for  a  time  with  you  at  your  parents’  home  in  Mt Wellington.  Later he went to Rotorua where he stayed at two separate flats, but he got  into  difficulties  there,  partly  because  of  his  somewhat  erratic  behaviour. Although he was non-confrontational and not at all violent, some of his flat-mates took issue with some aspects of his behaviour, and his position in Rotorua became untenable.

[4]      At that point you and a friend brought him back from Rotorua to Auckland, where he was installed in what was known as the den, a small shed in the grounds of your parents’ residence.  He could not stay inside with you as he had done formerly, because your father did not want him in the house.  It appears he was staying in the den without your parents’ knowledge.

[5]      On the morning concerned you went out to see Javed in the den, apparently for the purpose of talking to him about his plans for the future.  That generated a disagreement which turned into a physical fight.  Your explanation to the police, and it stands unchallenged, was that Javed suddenly attacked you physically, and that in

the course of defending yourself you punched him twice to the head.  But you also told the police that, having become angry at the attack and at a time when Javed posed no immediate threat, you deliberately struck him in the temple region with your right elbow.  That was a manoeuvre that you understood was likely to be more effective that a simple blow with a fist.

[6]      In this case the blow was very effective indeed.  You saw Javed’s eyes roll upwards immediately he was struck.  He fell to the ground, striking his head on the skirting board or floor of the den.  Thereafter, he lay completely still.  You checked his condition and concluded that he had died.

[7]      At that point you left the den and went over to the house where you had a cigarette before returning to check Javed’s condition once more.  It had not changed. From that point you undertook a series of steps which I will describe in a moment.

[8]      In the meantime I want to say something about the cause of death.  At your trial the Crown suggested to the jury that it was open to them to conclude beyond reasonable doubt that there must have been a fourth blow, possibly with a weapon such as a piece of wood, that caused Javed’s death.   There was no evidence to support that contention, save for a claim by a fellow prisoner of yours, who had told the police that you had confessed to him having hit Javed on the head with a piece of wood after he had fallen to the ground.

[9]      Had the jury accepted that evidence then you would undoubtedly have been convicted of murder.  The jury’s manslaughter verdict is consistent with the rejection of that Crown contention, which I accordingly propose to put to one side.

[10]     There was expert evidence to the effect that in rare cases, a blow to the side of the head can produce instance death as the result of a sub-arachnoid haemorrhage. The symptoms described in the course of that expert evidence were consistent with your account of what happened to Javed.  I consider it highly likely that that is what happened here, and propose to proceed on that basis.  In doing so, I note however that during the course of your own account to the police, you accepted that your

purpose in using your elbow to strike Javed was to knock him out, so that he would be incapable of presenting any further threat to you.  I will come back to that later.

[11]     In the meantime, I move on to what occurred following Javed’s death.  The usual and proper course to follow would, of course, have been to call emergency services and the police as soon as it appeared that Javed was, or might be, dead.  But you did not do that.  Instead you took the first of a great many steps which together have given rise to the charge of attempting to pervert the course of justice.

[12]     You wrapped Javed in a duvet or bed covering, took him outside the den and placed him in a crawl space underneath the den just big enough to accommodate his body.  There he remained for several days until, when the opportunity arose, you dug a relatively shallow grave in front of the den and buried his body in it.  You must have completed that task quickly and neatly, because no-one even noticed or suspected what you had done. Your stepmother, whose bedroom overlooked the den, gave evidence that she noticed no change to the lawn area immediately outside the den.

[13]     There Javed lay for up to a year.   In the meantime, you took several steps aimed at persuading his family and friends that he was still alive and making a new life in Wellington.  You used Javed’s bankcard to withdraw his WINZ benefit each week, between July and October 2009, when WINZ withdrew the benefit.

[14]     Importantly, you created a fictitious BEBO account which to a considerable extent mirrored Javed’s legitimate profile, and you communicated with friends and family members on his behalf, to create the impression that he was alive and had relocated to Wellington. You sold his guitar.

[15]     After about 12 months you decided that Javed’s body should be exhumed. By then there were just skeletal remains which you placed in a wheelie bin beside the den for a further period of about six to eight months.  But you did not place his skull in the wheelie bin.  Instead, you smashed it into small pieces with a hammer. Later you told the police that you did so because you knew that it would be forensically important to them to have his skull in the light of your explanation of the

manner in which Javed had died.  So that was a deliberate step to render the police task more difficult.

[16]     I should mention that there was a dispute at the trial about what happened to the skull fragments.   Police witnesses gave evidence of a search of a neighbour’s back lawn, and of finding numerous human skull fragments there.  They had been led to conduct the search following receipt of information from another source.  It was  not  possible  to  obtain  a  DNA match  for  the  skull  fragments,  but  it  is  an irresistible inference, in my opinion, that the fragments were Javed’s, and that you had simply disposed of the skull fragments by throwing them over the fence, where at the time, a residence was being constructed and the property was in a state of general re-organisation.  The alternative explanation, advanced by your counsel, that the skull fragments were placed in the wheelie bin, is not consistent with the fact that no fragments were found when the rest of the remains were ultimately discovered.

[17]     After  about  six-eight  months  in  the  wheelie  bin  alongside  the  den,  the remains were taken by you along the road to a derelict house awaiting demolition about 100 metres from your parents’ residence.  You wheeled the bin up the drive and placed it in the open garage of the unoccupied property.  There it remained for many more months until, in preparation for demolition, a demolition company employee discovered a pile of debris in the garage, which appeared to contain human bones.   The police were called and it was eventually established that these were Javed’s remains. The wheelie bin itself was never recovered.

[18]     Ultimately, careful forensic work was able to re-assemble virtually the whole of Javed’s skeleton, save of course for the skull. All of that careful work has enabled his family to give him a decent funeral, but of course that ought to have occurred years earlier.  These events following Javed’ death support the charge of attempting to pervert the course of justice to which you have pleaded guilty.

Pre-sentence report

[19]     You are now 25 years of age.  When Javed died you were 21.  You were born and raised in Rotorua, mostly by your mother, your parents having separated when you were just two years old.  You have indicated that you had a loving upbringing.

One particular problem you encountered at school was consistent bullying arising from you having been short for your age at that time.  It is worth noting at this point that  as  an  adult  you  are  of  relatively  average  physique  and  stature,  while  the evidence about Javed suggests he was both short and slight, and physically retiring.

[20]     When you were 16 years old you came to Auckland to live with your father and complete high school studies.  Then you took up work as a baker, where you seem to have been in relatively steady employment, working your way up to the position of head baker.

[21]     There is no suggestion of any health problem, either mental or physical; however there has been a pattern of both drug and alcohol abuse, which has no doubt played some part in these offences.   You accept that over some years, you have consistently been under the influence of cannabis, which you used on a daily basis, often both morning and night.   That has been coupled with a harmful drinking pattern, involving regular episodes of drinking to excess.

[22]     You have just one prior conviction for a minor driving offence which I put to one side for present purposes.

[23]     You told the probation officer that your violent behaviour towards Javed was reactive, and that you were emotionally heightened, as it was put in the report, because you were hung over and still under the influence of cannabis.   Your subsequent behaviour over a period of two to three years is harder to explain.  You say that you acted out of paranoia and fear, generated in some part by your on-going use of illicit drugs.

[24]     You have expressed your remorse for what occurred,  as recorded by the probation officer and in a letter written to me, which I have carefully studied.  In it you indicate that you wish to express your full apologies and remorse to all of the Mills  family and  Javed’s  friends. You  say  you  take full  responsibility for what occurred, knowing however that nothing can take away the hurt and pain you have caused Javed’s family, or bring him back.  I do not know whether you have made any separate, private apology to the family.   But Mr Wharepouri has told me that an

informal indication has been made to the Crown to the effect that if the family considers it appropriate, you would like to meet them in order to express in person your remorse for what has occurred.

Victim impact statements

[25]     The Court  has  been  provided with  three statements  from  Lichelle Mills, Javed’s mother, Tarek Rahman, his brother, and Brent Mills, Lichelle’s brother and Javed’s uncle.  I do not intend going into the detail of those statements.  They have been read out very well this morning by the victim support officer.  As is often the case they make heart-rending reading.  They have each suffered losses at two levels. The first is the loss of Javed himself.   That is bad enough.   But they have also endured the agony of discovering after a period when Javed was  thought to be happily making a fresh start in Wellington, that they had been misled for more than two years.  Instead of living in Wellington, Javed had suffered a violent death, and then the indignities that you inflicted on his remains over a long period.

[26]     Each of them was close to Javed;   each has suffered greatly in his or her personal life.   For example, each has had a great deal of difficulty in sleeping at times and in coming to terms at an emotional level with what has happened.  They have all been badly affected in various ways, and there have been elements of depression for some of them at times.

[27]     I do not intend to describe the detail of their statements any further, but note that the Court is obliged to take the harm they have suffered into account in determining the ultimate penalty.

Manslaughter

[28]     I propose to deal with the manslaughter and perverting charges separately, and then to discuss them in their totality.  In the course of doing so I will take into account as appropriate all of the provisions of ss 7, 8 and 9 of the Sentencing Act

2002.

[29]     It  might  be  helpful  for  me  to  explain  the  way  in  which  the  sentencing exercise must be undertaken.   First it is necessary to select an appropriate starting point sentence for each offence.  Then the Court must consider aggravating factors, which make the offence worse, and mitigating factors which make it less serious, in respect of first, the offending, and second  you, the offender.   That produces an ultimate end sentence for the particular offence.

[30]    This morning, I have discussed with counsel the appropriate sentencing technique for this case.  There are two broad approaches;  one is to deal with each offence separately, and then to add the results together to form an overall sentence that produces cumulative sentences, and that is what I propose to do.  The alternative is to select the worst offence, and that is the manslaughter, and then to make an adjustment upwards to account for the extra offending inherent in the perverting charge.  But we do not have to worry about that because I am not going to adopt that course.

[31]     First I deal with the manslaughter charge.  There is no tariff or guideline case for manslaughter sentences.  Instead, culpability must be assessed in the light of the individual circumstances of each case.1

[32]     The conventional approach in manslaughter cases is to review comparable authorities or cases, for the purpose of identifying similar sentencing factors or groups of factors.   An alternative approach is to refer to R v Taueki,2  which lays down guidelines for sentencing in cases of serious violence where no death has occurred.

[33]     In R v Tai,3  the Court of Appeal suggested that the Taueki approach may be appropriate when sentencing for manslaughter, with an adjustment for the fact there has been a death.  However, as noted in Murray v R,4 the Taueki guidelines will not always be appropriate.   There can be some awkwardness in translating them  in

manslaughter cases.   In the present instance I propose to consider some previous

1 R v Wickliffe [1987] 1 NZLR 55 (CA) at 62.

2 R v Taueki [2005] 3 NZLR 372 (CA).
3 R v Tai [2010] NZCA 598 at [11].

4 Murray v R [2013] NZCA 177 at [27].

cases, and to reach a conclusion based on them, using the Taueki approach as a method of checking the outcome.

[34]     In Kepu v R,5  the Court of Appeal indicated that so-called “single punch”

manslaughter cases warranted a starting point of three to four years imprisonment.

[35]     It might be helpful for me to indicate at this point what I mean by the term single punch, because it has been the subject of discussion in Court this morning.  I take  the  single  punch  cases  to  comprise  that  category  in  which  irrespective  of whether there has been aggression or violence between the parties prior to the punch concerned, the punch itself can be identified as the single cause of death.  Such cases can vary widely in culpability from the case in which the assault is simply a push which has caused the victim to lose his or her balance, and (usually) to strike his/her head with fatal results, right through to the case in which the blow itself carries with it a significant risk that death might ensue, and which has itself caused the death.

[36]     In cases where earlier violence might be thought to have played some role in the ultimate death of the victim, it would not be right to term the case a single punch case.

[37]     Mr   Wharepouri   submits   that   a   starting   point   of   about   three   years imprisonment,  is  appropriate.    He  bases  that  submission  on  the  starting  points selected in R v Paku and R v Savage.6    But each of those cases and in particular Savage, which dates from 1999, is of considerable antiquity.  There are numerous more recent authorities which reflect the contemporary approach and which tend to take a somewhat harder line than those two cases.  Of particular assistance are R v Ioata,7 and Murray v R. These are each appellate judgments.

[38]     In Ioata, the victim and an associate of the prisoner, got into a fight on the street, after which the prisoner approached the victim from an angle that was outside

the victim’s field of vision, and punched the victim deliberately and forcefully on the

5 Kepu v R [2011] NZCA 104.

6 R v Paku HC Hamilton CRI-2005-019-6408 7 September 2006, and R v Savage T982/142 12 March

1999.

7 R v Ioata [2013] NZCA 235

side of the head.  The victim fell and hit his head on the road.  His death was caused either by the punch or hitting the ground, or both.  The Court of Appeal upheld a starting point of five years imprisonment.

[39]     In Murray v R, the victim had been assaulted by some of the prisoner’s associates, but that had come to an end when the prisoner went up to the victim and pushed him.  The victim broke away, but the prisoner suddenly punched him on the left side of his face, causing him to fall backwards and to strike his head on the pavement, where he lay bleeding from his nose and mouth.  The prisoner did not try to help the victim and left immediately with his associates.   The selected starting point of five years imprisonment was upheld on appeal.  The Court of Appeal noted that the single punch cases usually warranted a starting point of three to four years. However, as the Court had noted in R v Tai, the starting point for manslaughter will need to be increased where culpability is higher as the result of an intention to cause really serious harm to the victim and the nature of the serious violence actually used.

[40]     I consider this present case to be broadly comparable with Ioata and Murray. As in those cases, this was a deliberate blow struck with the elbow, using all the force you could muster Mr Cooper, for the express purpose of knocking Javed out. In other words, you intended to cause really serious harm.   That brings you both within the comparable Taueki authorities, and with the class of case referred to by the

Court of Appeal in Ioata as justifying a higher starting point.8

[41]     Reference to the Taueki guidelines by way of cross check is only marginally helpful. As the Court of Appeal observes there is a certain awkwardness in endeavouring to meld the two approaches.  I would place this case at the bottom of band  2  of  Taueki,  so  attracting  a  starting  point  of  five  years,  but  it  would  be necessary to impose an uplift to reflect the fact that there has been a death in this case.   However, in all the circumstances,  I am not persuaded that my tentative conclusion that five years imprisonment is the appropriate starting point should be

altered by reference to the Taueki factors.

8 At [31].

[42]     I will come back to other discounts and to the eventual outcome a little later, but in the meantime I turn to the second count of attempting to pervert the course of justice.

Attempting to pervert the course of justice

[43]     I outlined earlier the various steps you took over a period of two years or more, aimed at persuading all concerned that Javed was still alive and living in Wellington.   No doubt you hoped that eventually his continuing non-appearance would be put down to his having permanently lost touch. A second obvious purpose was to make the police task much more difficult, and here I am referring in particular to your destruction of Javed’s skull.

[44]     An aggravating feature of this offending is that it took place over such a long period.   While it might be possible to understand, although with difficulty, your explanation that you simply panicked following Javed’s death, that cannot possibly be valid in respect of your later activities which extended over months and years.  By then   panic   must   have   subsided   and   you   were   driven   simply  by   practical considerations aimed at ensuring that you would escape responsibility altogether.

[45]     Mr Wharepouri submitted that your failure to come to your senses must have been the result of confusion, but that of itself could not possibly be a valid explanation;   neither could your continued consumption of cannabis have ever provided an excuse.

[46]     Having said that, I accept that to some degree you were simply putting your head in the sand.  Had Javed’s body remained undisturbed in front of the den, the grave may never have been discovered, at least for many years.  But having exhumed him, you placed him in a wheelie bin beside the den.  Later you left his remains open to public access in the derelict house along the road.   In doing all of this  you substantially increased the risk of eventual discovery, and so it proved.

[47]     This is not one of those cases in which elaborate arrangements were made by an offender to hide a body deep in the country, and so at very limited risk of discovery.   But having said that, it makes very little difference to the sentencing

outcome that your arrangements were somewhat amateurish, to use that term.  It is what you did and your underlying purpose that must be considered.

[48]     Against that background, I note what was said in R v Hillman,9  the leading case in this area.   There, the offender had attempted to dissuade a witness from giving  evidence.    The  Court  of Appeal  said  that  such  behaviour  struck  at  the administration of justice, and must be met by the Courts with a stern response.  In all cases of that kind, a condign and deterrent sentence is required because of the nature of the offending, striking as it does at the proper administration of justice.  Those principles apply equally to a case like this, in which an offender has interfered with evidence for the purpose of rendering more difficult the task of investigating authorities.

[49]     In Hillman the Court of Appeal said that it was clearly established that a benchmark of three years imprisonment was required for relatively serious cases. More recently, the Court of Appeal has observed in M v R that Hillman predated the Sentencing Act 2002, and that given the maximum penalty for attempting to pervert the course of justice is seven years imprisonment, there is no apparent justification for continuing to view a starting point of three years imprisonment for serious cases

as properly reflecting the requirements of s 8 of the Sentencing Act.10

[50]     In R v Vaux-Phillips,11 Ms Vaux-Phillips pleaded guilty to being an accessory after the fact to culpable homicide.  The victim died following a prolonged violent assault on him by Ms Vaux-Phillips’ partner, who dismembered the victim’s body and disposed of it in different graveyards.  Ms Vaux-Phillips helped clean the scene, assisted in concealing the body and told a number of lies to the victim’s mother, so instilling false hopes that her son was still alive.  The Court adopted a starting point of three years imprisonment.  In my view that case was much less serious than this. You took a number of more elaborate steps and the offending continued over a very

significant period.

9 R v Hillman [2005] 2 NZLR 681 (CA).

10 M (CA469/2013) v R [2013] NZCA 385 at [11].

11 R v Vaux-Phillips [2012] NZHC 1119.

[51]     A much more serious  case than this  was  R  v Callaghan,12   which  I will summarise only briefly.  Mr Callaghan had pleaded guilty to the murder of his ex- wife.   He then lied to his neighbour about why he was covered in bloodstains, purchased materials for the disposal of the body, cleaned the scene of the murder to conceal evidence, removed the body from the address and dismembered it, used the victim’s mobile phone on occasions over several weeks, and responded to various text messages in order to make it appear she was still alive, purported to engage in text conversations with the victim following her death, purchased a sim card under an assumed name, obtained a false statement from an associate about having seen the victim following her death, buried the victim’s body in the Waitakere Ranges, took her car to Hamilton and abandoned it there, destroyed evidence of the victim’s blood in the vehicle, and told associates about what they should tell the police if inquiries were made.   Finally, the offender reported his wife missing two weeks after her death, and following her burial in the Waitakere Ranges.

[52]     Mr Callaghan was sentenced to life imprisonment for murder, but Venning J dealt separately with a charge of attempting to pervert the course of justice.   He considered it to be near the most serious case of its type and indicated that it would justify a sentence of six years imprisonment on that charge alone.

[53]     Ms Pollett has referred me to Callaghan, and submitted that this case is at, or very close to, the same level of culpability.   I do not accept that submission.   I consider a number of features of Callaghan place it in a yet more serious category than this case, but there is force in her submission, that this is a case which is considerably more serious than say Vaux-Phillips, and that it must be met with a sensible starting point, bearing some relationship to Venning J’s comments in Callaghan.

[54]     I consider that starting point to be five years imprisonment.  The case is less serious than Callaghan in my view, by reason in particular of the substantially greater degree of planning and implementation that occurred in Callaghan, although

the ultimate objectives were the same.

12 R v Callaghan [2012] NZHC 596.

Mitigating factors

[55]     I turn now to mitigating factors.   Mr Wharepouri has enumerated for the Court a number of factors personal to you, Mr Cooper, which he submits ought to be taken into account in mitigation, and by way of reduction of the sentence..

[56]     There are three personal factors in particular.  The first is your overall good record to date.   It is true you have an almost spotless record but it would be inappropriate to make an allowance for that, having regard to what has occurred here, and also to the fact that during the implementation of your arrangements to mislead the authorities, you stole from WINZ Javed’s benefit, and sold his guitar which belonged to his estate.  It would not be appropriate in those circumstances to consider a discount for your good record.

[57]     Secondly, there is the question of remorse, which has been the subject of considerable submission this morning.   Ms Pollett strongly submits that there is virtually no evidence of any remorse on your part, either at the time of the trial or before or after.

[58]     In that regard, I need to comment that I have received from you this morning a handwritten letter in which you express your remorse very clearly, not only to the Court but also to the Mills family and to all Javed’s friends.  It concludes with an assurance that you will benefit from whatever counselling and courses are available in prison, in an endeavour to turn your life around.

[59]     Ms Pollett suggests that this letter has come through late in the piece, and too late to affect any consideration of remorse.  She is also critical of you completing that letter with the assurance about how you will spend your time in prison.  I acquit you of any responsibility for the last paragraph.  That is the sort of thing it is good to hear from someone who is facing sentence. I accept that the letter expresses your genuine feelings and emotions.

[60]     Having said that, there were occasions up to the time of the trial when you could have done a great deal more than you did to express your regret for what occurred.

[61]     To sum all of that up, I consider your current state of mind is remorseful and you are genuine in what you said to the probation officer, but as the Supreme Court has said in Hessell,13  separate allowances in mitigation for remorse, will only be available where the expressions and evidence of remorse are truly remarkable and exceptional. That is not the case here.

[62]     The final factor is your youth.  You were 21 at the time of the manslaughter. That is towards the upper end of the level at which youth can be taken into account. But, the fight in the den might have turned out differently if you were an older and wiser  man,  so  it  is  appropriate  to  make  a  small  allowance  for  youth.   As  the

authorities indicate – the lead authority is of course Churchward,14  - any allowance

can only be small.  I will allow a discount of three months on account of your youth.

[63]     Now I turn to the question of whether a discount ought to be allowed for the fact that, some months prior to the trial, your counsel wrote to counsel for the Crown indicating that a plea of guilty to manslaughter was available.   The offer was not accepted by the Crown, and there can be no criticism of that.  It will often be in the public interest for the distinction between murder and manslaughter to be drawn by the jury in an individual case.

[64]     In R v Edwards,15 as Ms Pollett has mentioned, the Court of Appeal observed that where an accused person has tabled a definitive account of what happened, at the same time as indicating a preparedness to plead guilty to manslaughter and the trial Judge has concluded that that version of events was probably true, then there was no reason in principle why an appropriate credit could not be given.  It might also be appropriate to do so where a finding of self-defence was a genuine alternative to a finding of guilty of manslaughter.

[65]     Here, self-defence was only faintly available, but in my view the verdict of the jury is broadly consistent with the outline of events you provided during your lengthy videotaped interview with the police.  You and Javed were the only people

together in the den that morning.  Yours was the only eye-witness account.  The jury

13 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 (SC) [64].

14 R v Churchward [2011] NZCA 531, (2011) 25 CRNZ 446..

15 R v Edwards [2005] 2 NZLR 709 at [38]-[40]

plainly rejected the Crown argument that you intended to cause Javed’s death, or were reckless as to whether he died.   In doing so they must, in my opinion, have accepted that your account of having struck Javed on the temple with your elbow, was correct.  Indeed, it was really the only alternative explanation available in the light of the expert forensic evidence.

[66]     Ms Pollett has suggested that the jury may have regarded the whole of your account to the police and all of the evidence surrounding it, as being simply a tissue of lies.  In other words, the Crown position has been that it would be open to me as sentencing Judge to conclude that the fatal blow was struck by you without any involvement by Javed in any aggression prior to it at all.

[67]     I am not prepared to make that assumption, which is really nothing more than an exercise in speculation and based upon the proposition that you were shown to have  been  a  liar  in  a  number  of  important  respects  both  during  the  police investigation and during the video interview.  I prefer the more logical explanation to which I have referred.

[68]     In those circumstances I consider that it is relevant to take into account the offer to plead guilty to manslaughter.   I will allow a six month discount for that. There will be a further 12 months discount to recognise your guilty plea to the perverting charge at callover in October 2012.

Minimum period of imprisonment

[69]     The Crown seeks the imposition of a minimum term of imprisonment under s 86 of the Sentencing Act.  I am not prepared to impose a minimum period in this case.   The offending itself does not require it, neither does your past record and background.   Moreover, I accept Mr Wharepouri’s submission that to a degree it would be inconsistent in this case with the early guilty plea and the offer to plead guilty to manslaughter, along with the indications we now have that you are coming to terms with what you have done and the seriousness of your behaviour.

[70]     In my view, the sentences which I propose to impose will, of themselves, sufficiently take into account the s 86 factors.

Summary

[71]     In summary I have adopted a starting point of five years imprisonment on the manslaughter charge, reduced by three months for personal mitigating factors and a further six months for the offer to plead guilty, so producing a sentence of four years three months imprisonment.

[72]     On the charge of attempting to pervert the course of justice, I have adopted a starting point of five years imprisonment, reduced by 12 months for the guilty plea, so producing a sentence of four years imprisonment.

[73]     The result is that the sentence on the manslaughter charge will be four years three months imprisonment and on the perverting charge, four years imprisonment.

Sentence

[74]     Mr Cooper, on the manslaughter count you are sentenced to four years three months imprisonment.  On the count of attempting to pervert the course of justice you are sentenced to four years imprisonment.  The sentences are to be cumulative. The total sentence is therefore eight years three months imprisonment.  I draw the attention of the prison authorities to the various rehabilitative suggestions appearing in the pre-sentence report.

Suppression orders

[75]     There will be an order permanently suppressing the identity and evidence of

Messrs [redacted] who were witnesses at the trial.

Addendum

At the conclusion of the sentencing, and after Mr Cooper had left the courtroom, Mr Wharepouri raised with me the question of whether I had sufficiently considered

the need to adjust the sentencing conclusion to which I had come in order properly to take into account totality considerations.  I assured him that I had done so, but that I considered the seriousness of the perverting charge was such that totality did not call for a reduction in the overall sentences imposed upon Mr Cooper.

C J Allan J