R v Couper

[2025] NZHC 855

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-044-002489

[2025] NZHC 855

THE KING

v

DARREN TROY COUPER

Hearing:	14 April 2025
Counsel:	M Djurich for Crown JN Olsen for Defendant
Judgment:	14 April 2025

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Auckland. JN Olsen, Auckland.

R v COUPER [2025] NZHC 855 [14 April 2025]

Introduction

[1]    Darren Couper, you are for sentence on one charge of injuring with intent to injure.1 The background is unusual in that the charge was originally wounding with intent to cause grievous bodily harm. You were found guilty of that charge. However, the Court of Appeal quashed your conviction and ordered a re-trial.2 On 28 March this year, the Crown filed this charge rather than that in relation to which you were found guilty. On 2 April this year, you pleaded guilty.

The facts

[2]    The facts are also unusual. On 16 August 2022, you and two other men were at home.  The  three  of  you  were  smoking  methamphetamine  in  the  basement. At approximately 9.16 that evening, Kevin Hay came to the home. You knew Mr Hay. He had experience in martial arts, as did you and one of the other two men present, Peter Greene.

[3]    Mr Hay fought you on his arrival. Initially, he had the upper hand. You then gained the advantage. You were straddling Mr Hay, who was lying prone on his back.

[4]    You repeatedly struck him to the head. By repeatedly, I mean not fewer than 35 times. However, the agreed summary of facts makes it clear that some of your violence was in self-defence. Indeed, the agreed summary confines your offending to 10 blows to Mr Hay’s head, that you twice stomped Mr Hay’s hand; and finally, that you kicked Mr Hay to the head. He was then barely able to move.

[5]    It follows I must sentence you on an unusual basis, but one to which the Crown has given its blessing. It is not for me to interfere with this arrangement, even though it presents as somewhat artificial. To compound matters, unknown to you, Mr Greene stabbed Mr Hay during your struggle with him. That wound caused Mr Hay’s death. But, Mr Greene was found not guilty of both murder and manslaughter at the trial at which you were found guilty of wounding with intent to cause grievous bodily harm.

1      Crimes Act 1961, s 189(2).

2      Couper v R [2024] NZCA 663.

[6]    Mr Hay sustained significant injuries to his face and head but, as the agreed summary records, it is not possible to determine which of these is attributable to your blows comprising the offence. It is sufficient to observe you injured Mr Hay (with intent to injure him) by striking him 10 times to the head, and also kicking him once to the head. You then went on to assault a police officer, but that conviction and sentence were not disturbed by the Court of Appeal.

Starting point

[7]    The Crown argues your case falls within band 2 of the Court of Appeal’s guideline judgment.3 It argues the appropriate starting point is two and a half years’ imprisonment.

[8]    On your behalf, Mr Olsen contends for a starting point of 25.5 months’ imprisonment. He argues this somewhat lesser figure is commensurate with the proposition you were earlier defending yourself from Mr Hay. Mr Olsen argues once your earlier legitimate violence is removed from the mix, your offending does not constitute serious violence.

[9]    I am unable to accept that submission. Mr Hay was beneath you. He was unable to resist your 10 blows to his head, or your kick to his head. All these blows were powerful. That your earlier violence was in self-defence does not make your gratuitous violence less serious. You knew Mr Hay was no longer a threat, but you continued to assault him. You could have stopped, but you did not. I, therefore, adopt the Crown’s starting point, which is about right.

Guilty plea

[10]   It is common ground you are entitled to discount for your guilty plea. Mr Olsen seeks the full 25 per cent on the basis you pleaded guilty quickly after the Crown amended the charge. That is true, but existing law requires an assessment of the value of the guilty plea, including by reference to the strength of the evidence and  whether

3      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39. See also Campbell v R [2017] NZCA 623; and

Brownlee v Police [2018] NZHC 215.

you benefited from a plea arrangement.4 Your offending was caught on closed circuit television. That footage was available at trial. You also benefited from the plea arrangement as the maximum penalty for the earlier offence is higher than that to which you have pleaded guilty. I, therefore, deduct 20 per cent.

Other mitigating features

[11]   You waived your right to a pre-sentence report so as to be dealt with swiftly. You have historical convictions, but nothing of relevance for today’s purposes.

[12]   You seek a discount for previous good character, noting your most recent conviction was in 1993 and you note that Andrew J, who was the Judge at the trial, gave you such a discount.5 I am unpersuaded to do likewise. A good character discount is most typically given when an offender has undertaken good works in the community or contributed meaningfully to society. You have put nothing before me to suggest you fall within this category.

[13]   You also argue your dependence on methamphetamine — rather than your use of that drug on the evening — is mitigating, at least as a background factor. Again, I respectfully disagree. There is no obvious connection between the offending and your background connection with methamphetamine. That you were using the drug that night is not mitigating.6

[14]   You  have  been  on  electronically  monitored  bail  for   approximately   eight months.  You  have also endured a trial, and an appeal to the Court of Appeal.   I deduct five months in recognition of that mix.

[15]   This produces a sentence of 19 months’ imprisonment. You have already served that time. It follows there will be no additional penalty today.

4      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

5      R v Couper [2024] NZHC 1454.

6      Sentencing Act 2002, s 9(3).

[16]   I acknowledge this outcome will greatly disappoint the victims, including   Ms Murray, Mr Hay’s partner, but I emphasise I am sentencing you for offending other than that which caused Mr Hay’s death.

[17]   This leaves one issue. Mr Olsen argues you should be convicted and discharged given the unusual circumstances of your case. That would not be an appropriate outcome given the serious  and gratuitous nature of your violence to    Mr Hay, which you directed at his head.

[18]   Mr Couper, please stand. For the offence of injuring with intent to injure, you are sentenced to 19 months’ imprisonment. I impose that sentence on the understanding you have already served that time and hence there will be no additional penalty for you today.

[19]You will stand down, thank you.

……………………………..

Downs J