The Queen v Cooper and Mihinui

[2007] NZCA 395

IN THE COURT OF APPEAL OF NEW ZEALAND

CA338/07
CA339/07
[2007] NZCA 395

THE QUEEN

v

DORIS PAULA COOPER
WHARERANGI MIHINUI

Hearing:29 August 2007

Court:Glazebrook, Wild and Fogarty JJ

Counsel:P Eastwood for Appellant

M D Downs for Crown

Judgment:7 September 2007 at 10am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Glazebrook J)

Introduction

[1]       On 16 May 2007, Ms Cooper and her partner, Mr Mihinui, were convicted of burglary following a jury trial in the District Court at Kaikohe.  The offending was described by the trial judge, Judge McElrea, as a “rather mean spirited burglary on a related family member”.

[2]       On 7 June 2007, Judge McElrea sentenced Ms Cooper to imprisonment for 12 months.  Mr Mihinui was sentenced to 15 months imprisonment.  In both cases, leave to apply for home detention was refused because “the denunciatory and deterrent aspects would override that”.  The Judge also did not want the appellants to be in a position to harass or intimidate the victims.

[3]       Appeals against conviction and sentence were filed by both appellants.  The appellants made no submissions on the conviction appeals. As to sentence, the only issue is the Judge’s refusal to grant leave to apply for home detention.  A complaint about the disparity between Ms Cooper’s and Mr Mihinui’s sentences was abandoned.

[4]       Mr Eastwood contends that the Judge erred in refusing leave.  His main argument was that the Judge failed to consider the appellants’ family circumstances and in particular the position of Ms Cooper’s 16 year old daughter. His secondary argument was that the Judge had overestimated the seriousness of the offending.

Did the Judge fail to consider the appellants’ family circumstances?

[5]       It is true that the Judge did not mention Ms Cooper’s daughter in his sentencing remarks. Mr Eastwood had, however, not addressed the daughter’s position in his submissions before the Judge. This is unsurprising.  The pre-sentence report on Ms Cooper did not raise any particular concerns about her children if Ms Cooper went to prison.  It said:

At present she lives at the given address with her children, nieces and nephew.  Her youngest child is presently in the 6^th form at school and she would like her to finish her schooling.  Her son was contacted and he confirmed that they continue to live at the address.  His cousin has moved down from the North and has arranged a benefit so that she can maintain the home while her aunt is in custody.  [The son] advised that finances are “tight” as there was an overdue electricity account but the children are managing.

[6]       The Judge did in any event consider the personal circumstances of the couple and in particular the issues with drugs and alcohol faced by Ms Cooper and her emotional trauma caused by deaths in the family.  A very generous six month reduction in sentence was given to Ms Cooper on this account.

Did the Judge overestimate the seriousness of the offending?

[7]       Mr Eastwood’s secondary argument was that the Judge overestimated the seriousness of the offending.  We consider that the Judge was entitled to consider that the offence called for a denunciatory approach.  It was burglary by night of a dwelling where the couple took advantage of what they knew about the occupiers and their movements through family connections.  Personal items and jewellery were among the items stolen.

[8]       A denunciatory approach was particularly appropriate in light of the couple’s previous convictions.  Ms Cooper has 112 prior convictions and Mr Mihinui 135 prior convictions (mostly for various types of dishonesty).  Both were on “final warnings”.  The Judge did take into account the rehabilitative needs of the couple but considered that these could be met by the special conditions of release he imposed. 

Conclusion and result

[9]       The decision whether or not to grant leave to apply for home detention is a discretionary one.  Mr Eastwood has not been able to point to any errors of principle in the Judge’s approach.  The sentence appeals are without any merit and are dismissed accordingly.

[10]     As indicated above, no submissions were made in relation to the conviction appeals. They are also dismissed.

Solicitors:
Crown Law Office, Wellington