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

OWEN-COOPER v NZ POLICE AND DEPARTMENT OF CORRECTIONS [2016] NZHC 1999 [26 August 2016]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYCRI-2016-425-2[2016] NZHC 1999BETWEEN DWAYNE ALEXANDEROWEN-COOPERAppellantAND NEW ZEALAND POLICE ANDDEPARTMENT OF CORRECTIONSRespondentsHearing: 22 August 2016Appearances: K M Barker for the AppellantM G McClenaghan for the RespondentJudgment: 26 August 2016JUDGMENT OF NICHOLAS DAVIDSON JIntroduction[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).(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).7Sentence 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 months3 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 - totalitySubmissions for the appellant[7] On the charge of injuring with intent to injure, the Judge adopted a startingpoint of 20 months before making deductions for the appellant's guilty plea. Counselhas made reference to prior case law which indicates that the starting point was"on the high side".8 However, counsel also recognises that the appellant has previous violence convictions and that an uplift to take those into account was not mentioned by the Judge.[8] For driving while disqualified, counsel corrects Judge Callaghan's remarks which stated that it was the appellant's tenth conviction, when it was the ninth. This does not make any difference in the sentencing approach. Counsel concedes that in light of prior case law, a starting point of 15 months before taking into account theappellant's guilty plea was reasonable.9 I agree.[9] For breaching the non-association order, counsel concedes that given theappellant's fifth conviction for breaching release orders, a starting point of fivemonths is appropriate.[10] Ms Barker acknowledged that the appellant's offending was repeated andserious, beginning on 7 September 2015 when he drove while disqualified for the third or subsequent time. On 29 October 2015 he breached release conditions, then on 30 October 2015 he again breached release conditions and committed the offence of injuring with intent to injure.[11] The appellant pleaded guilty on 4 November 2015 to the two charges of breach of release conditions, and injuring with intent to injure, and was remanded in8 See for example: Ransfield v Police [2014] NZHC 1046; Kojeunikov v Police [2013] NZHC 551; Kohu v Police [2013] NZHC 944; Tiplady-Koroheke v R [2012] NZCA 477.9 Osikai v Police [2015] NZHC 2952; Finch v R [2012] NZCA 446; R v Butterfield CA100/97, 23 July 1997.custody until 13 January 2016 for sentence, the same sentence day scheduled for driving while disqualified for the third or subsequent time.Discussion[12] The primary ground of appeal relates to the imposition of cumulative sentences, where the offences are different in kind and the submitted need to adopt the totality principle, where the end sentence must not be out of all proportion to the gravity of the offending. The relevant sections of the Act are set out as follows:84 Guidance on use of cumulative and concurrent sentences of imprisonment(1) Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.(2) Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.(3) In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—(a) the time at which they occurred; or(b) the overall nature of the offending; or(c) any other relationship between the offences that the court considers relevant.[13] The principle of totality, as provided in s 85 states:85 Court to consider totality of offending(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.(3) If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, thenlonger concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.(4) If only concurrent sentences are to be imposed,—(a) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and(b) each of the lesser offences must receive the penalty appropriate to that offence.[14] As a general rule, where each offence is a separate transaction and unrelated to the others in time, subject matter or modus operandi, a cumulative sentence will be appropriate unless there is some reason otherwise.10 However, when imposing cumulative sentences, the Court must consider the total term of imprisonment is not excessive, and that there is no double counting of any aggravating factor.11[15] In bringing an appeal under the totality principle, counsel refers to the direction under s 85(2) of the Sentencing Act 2002 that cumulative sentences of imprisonment must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. This is where the Judge will"step back" and look at the appropriateness of the end sentence.[16] On this basis, Ms Barker submitted that a sentence of two years three months would have been appropriate.[17] Mr McClenaghan's submission is that while the Judge did not specifically consider totality, the crucial issue is whether the end sentence was excessive, so that a different sentence should have been imposed, and therefore whether the two years six months was wholly out of proportion to the gravity of the whole offending.[18] While Judge Callaghan did not expressly mention the principle of totality, it is, I consider, implicit in his sentencing remarks that he did consider whether the end sentence reflected the totality of the offending or he reached that result by his adoption of the relatively short sentences for each conviction so that the final sentence was not out of proportion to the gravity of the overall offending.10 Sentencing Act 2002, s 84(1).11 Section 85(1)-(2).[19] Because the three types of offending were separate, distinct in kind, with no cross-over, the Judge was entitled to take a cumulative approach, and the end sentence was neither manifestly excessive nor wholly out of proportion to the gravity of the overall offending.[20] The totality principle was, I infer, likely considered by his Honour, even if not expressly recorded as such, and indirectly his Honour has reached the same result as would have applied had he done so, by the adoption of what I consider moderate individual sentences.[21] The ground of appeal based on the Judge's failure to consider the end sentence in totality is dismissed.Second ground of appeal - personal circumstancesSubmissions for the appellant[22] There is another element to this appeal. The appellant was referred to a clinical psychologist, Ms Graham, who saw him well prior to his sentencing date andwho assessed him as "severely depressed" with a likely diagnosis of post traumaticstress disorder.[23] Secondly, the opportunity was not given the appellant to participate in a restorative justice programme and no allowance was given for remorse.[24] Ms Barker submits that these factors may have indicated a lower level of culpability and a discrete credit would otherwise have been appropriate.Discussion[25] There was no referral to restorative justice with regard to the charge of injuring with intent to injure. The appellant telephoned his counsel for this purpose, but nothing eventuated. At sentencing he wanted his counsel to advise the Court that he wanted to participate in restorative justice but he did not think that occurred. There is no reference to restorative justice in the sentencing notes. Had a conference occurred, this would have been a discrete mitigating factor that the Court could havetaken into account. The Judge noted that a letter written by the appellant to thevictim displayed "some modicum of remorse". The intent of the appellant to takepart in restorative justice would have reinforced that. A discrete credit for remorse would have resulted.[26] The Crown does acknowledge that some discount is available for the mental health issues raised. The sentencing Judge did not have this material put before himand this was not the appellant's fault. The report from the clinical psychologist of29 July 2016 identifies very clearly that the appellant suffers from post traumatic stress and depression, and at a rather severe level, which goes some way to explain his repeated and very troubling offending.[27] On appeal, this Court therefore has the benefit of evidence that was not before the sentencing Court. The Crown accepts a discount of 10 per cent would be appropriate to account for his mental health issues.[28] As to restorative justice, one cannot speculate that a meeting would have taken place, but there is no doubt that the appellant seeks it. A discount is not automatic when a defendant elects to participate in such a programme. But the Court is required to adjourn proceedings to make enquiries as to the suitability of the restorative justice process.12[29] The appellant was not given the opportunity to meet with the victim and talkabout the offending and that, in this case, constitutes the "loss of a chance" but itbears on the question of remorse. Mr McClenaghan submits a five per cent discount for willingness to attend restorative justice, and implicit remorse, is appropriate.[30] Thus, based on issues which were not before the Judge, a total discount of 15 per cent is agreed to be appropriate. Having reviewed the evidence of the psychologist, Ms Graham, it is clear that the appellant labours under some very significant mental health disabilities which should be addressed.12 Sentencing Act 2002, s 24A.Disposition[31] In all the circumstances and entirely based on matters that were not before the sentencing Judge, the appeal is allowed so that a total discount of 15 per cent applies and the end sentence of two years six months imprisonment is reduced and rounded to two years and one month..Nicholas Davidson JSolicitors:Eagles Eagles & Redpath (Invercargill)Preston Russell Law (Crown Solicitors), Invercargill