COOKE v NEW ZEALAND POLICE [2021] NZHC 1661

COOKE v NEW ZEALAND POLICE [2021] NZHC 1661 [6 July 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-000283[2021] NZHC 1661BETWEEN JOSHUA-JAMES LACELLES COOKEAppellantAND NEW ZEALAND POLICERespondentHearing: 5 July 2021Appearances: Appellant in personD Becker for RespondentJudgment: 6 July 2021JUDGMENT OF VENNING JAppeal against sentenceThis judgment was delivered by me on 6 July 2021 at 12.15 pm.Registrar/Deputy RegistrarDateSolicitors: Meredith Connell, AucklandHBC Legal, Christopher FransIntroduction[1] Joshua-James Cooke pleaded guilty to two charges of money laundering andone of obtaining by deception on 16 April 2021. Judge E M Thomas sentenced himto three months' home detention.1 Mr Cooke appeals against that sentence.[2] Mr Cooke represents himself.Background facts[3] On 18 November 2019 an unknown person took control over a cell phonebelonging to a Mr Singh. They did so by a process that is known as SIM-swapping.That is effectively the illegal co-opting of a cell phone number onto a separate SIMcard. Using that process someone transferred $62,000 out of Mr Singh's bankaccounts into various other bank accounts. Mr Cooke withdrew $5,000 of those fundsfrom one of the accounts.[4] A week later there was a further SIM-swap transaction belonging to anothermember of the public. Seventeen thousand, five hundred was withdrawn into twoother accounts. Again, Mr Cooke withdrew $5,000 from one of them.[5] In fixing the sentence the Judge noted the offences showed planning andpremeditation and noted the offending was repeated. The Judge took into account thathe had previously sentenced Mr Cooke to five months' home detention in August 2020for similar offending.2 Judge Thomas then addressed the issue of totality andconsidered that if Mr Cooke had been before him on all charges at the one time theend sentence would still have been one of home detention. However, having regardto totality he considered that eight months' home detention would have beenappropriate to take account of all the offending. Given that the sentence of fivemonths' home detention had expired, the Judge imposed the sentence of three months'home detention.1 New Zealand Police v Cooke [2021] NZDC 7018.2 The offending included a number of dishonesty offences and other miscellaneous minor drugoffending.Practical issues[6] At the time he was sentenced Mr Cooke had other active charges for which hewas on bail. Mr Cooke was sentenced to home detention on 16 April 2021 but shortlyafterwards, on 21 April 2021 he was arrested for a breach of bail and remanded incustody. On 6 May 2021 Mr Cooke was released temporarily from custody oncompassionate grounds but did not return to custody as required and whenapprehended on 11 May 2021 he was remanded in custody. Mr Cooke was onlyreadmitted to bail on the morning of 5 July which enabled him to appear in personbefore the Court in support of his appeal.Appeal points[7] Mr Cooke submitted that the Judge was in error in referring to himwithdrawing $17,500. He says he did not complete that transaction. His position isthat he was simply a mule used to withdraw $5,000. Mr Cooke also submitted theJudge failed to acknowledge his personal circumstances and did not take into accounthis relatively early guilty pleas. As to his personal circumstances Mr Cooke advisedthe Court that he has an intermittent history of depression and anxiety along withADHD leading to impulsivity and an inability to control his actions. That much wasconfirmed in a s 27 report of 16 July 2020.Discussion[8] While Mr Cooke's personal circumstances were a relevant consideration andhis condition may lessen his culpability somewhat, the offending was sufficientlyserious to support a starting point of imprisonment.[9] In R v Dawick and R v Simanu for instance, a starting point of imprisonmentfor the sentence with an end point of home detention or community work dependingon the personal circumstances of the offender, were confirmed as appropriate.3 WhileMr Cooke's offending in this case was less serious, it still supported a starting pointof imprisonment. In the circumstances of the offending, and given Mr Cooke's3 R v Dawick HC Hamilton CRI-2005-419-122, 2 May 2006; and R v Simanu HC Auckland CRI-2008-004-020453, 16 December 2010.previous history, the sentence of three months' home detention was available to theJudge.[10] The appeal against sentence must be dismissed.Further practical implications of the sentence[11] Initially Mr Becker understood that as Mr Cooke's sentence of home detentionhad not been cancelled it would have been running even though he was in custody.4However, during the course of the hearing Mr Cooke advised the Court that MsDougan, his probation officer, had applied to cancel and substitute his sentence ofhome detention under s 80F of the Sentencing Act 2002. That application has beenfiled in the District Court at North Shore. It has not yet been determined. Time ceasesto run on the sentence until it is determined.5 The District Court rather than this Courtwill have to deal with that application.[12] However, this Court notes that when the District Court comes to deal with thematter, s 80ZB(b) of the Sentencing Act may be relevant and the District Court could,if it thinks appropriate in the circumstances, regard as time served the amount of timeMr Cooke has spent in custody if the substituted sentence is to be one of less thanimprisonment.6 That however must be a matter for the District Court.[13] For those reasons the formal order of this Court is that the appeal against thesentence of three months' home detention is dismissed.__________________________Venning J4 Sentencing Act 2002, s 80ZA.5 Sentencing Act 2002, s 80ZB(a).6 Chief Executive of the Department of Corrections v Sutherland [2018] NZCA 623 at [51].