COKER v R [2005] NZCA 71 (21 April 2005)

Last Updated: 9 May 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA421/04

THE QUEEN



v



WAYNE TE AWA COKER

Hearing: 14 April 2005

Court: McGrath, Williams and Panckhurst JJ

Counsel: G Boot for Appellant
H D M Lawry for Crown

Judgment: 21 April 2005

JUDGMENT OF THE COURT

The appeal is allowed. The sentence of 18 months imprisonment on the count of arson and the sentence of two years imprisonment on the count of attempting to pervert the course of justice, are each reduced to 12 months imprisonment. They will each be served cumulatively with the sentence of 18 months imprisonment for the male assaults female charges which will stand. This makes an effective total term of three and a half years imprisonment.

REASONS

(Given by McGrath J)

[1]	The appellant was convicted by a jury in the District Court on one charge of arson, five charges of male assaults female and one count of attempting to pervert the course of justice. He was sentenced by Judge O’Driscoll to 18 months imprisonment on the arson charge, 18 months imprisonment to be served concurrently on each of the male assaults female charges and two years imprisonment on the charge of attempting to pervert the course of justice. The three terms were made cumulative making a total effective term of five years imprisonment. The appellant appeals against that sentence.
[2]	The appellant set fire to his former partner’s motor vehicle, which had been involved in an accident while he was driving, in order to make a fraudulent insurance claim. His plan had involved making a false complaint to the police and taking the damaged vehicle outside of the Hamilton urban area, where the appellant set it on fire using petrol as an accelerant. The plan was organised by the appellant who instructed his former partner as to what she should say to the police when reporting the vehicle as stolen and to the insurance company when making a claim. His involvement gave rise to the count of arson with intent to obtain a benefit.
[3]	In relation to the convictions on five counts of male assaults female, each assault took place on a different day during April 2004. There was a common pattern. Following a difference of opinion, or in one instance over her failure to meet with him at an agreed time, during an outburst of temper, the appellant would punch or slap the complainant to the head, variously causing cuts to her face, or bleeding of her nose or lip. On one occasion he punched her twice on the leg and also slapped her face. On another he made the complainant slap her own face with her hands telling her that "you can’t accuse me now you’re giving yourself those bruises."
[4]	The evidence concerning the count of wilfully attempting to pervert the course of justice was that the appellant had gone to the complainant’s home after he had been charged with the other offences and told her that he would return to live with her if she did not cause him to be put in jail, and they would start their life again. But if he was to go to jail she would be taken out. The complainant also said in evidence that the appellant had told her she would be the subject of blackmail in relation to her involvement in the arson of the motor vehicle.
[5]	In his submissions in support of the appeal Mr Boot argued that although a prison sentence was inevitable, the overall effective sentence imposed was manifestly excessive. He was critical of the component sentences, especially those imposed on the male assaults female charges.
[6]	Counsel said that the violence concerned could not be categorised as severe, pointing out that the complainant did not seek any medical help as a result of the assaults. He accepted the Judge’s description of this offending as acts of domination of the complainant.
[7]	As well, Mr Boot pointed out that the appellant had been imprisoned for six months in July 2004 for offences of assault on the complainant committed during March 2004. That offending was of a similar nature to and occurred the month before the present offending. He said that the Judge did not impose a sentence which had regard to the existing sentence and which reflected the overall totality of the assault offending during the two months concerned.
[8]	Mr Boot also argued that the charge of attempting to pervert the course of justice was closely entwined with the violence charges and should have been the subject of a penalty that reflected this.
[9]	His overall submission was that the sentence of five years imprisonment was excessive having regard to the totality of the appellant’s offending. He said that an effective term of three years imprisonment would have been an appropriate punishment.
[10]	Mr Lawry for the Crown submitted that the arson conviction was for an offence of a different kind to the other convictions, being separate and unrelated to them. It clearly warranted a cumulative sentence. He also accepted that it was arguable that the offence of perverting the course of justice should be seen as part of a general course of conduct by the appellant aimed at subjecting the complainant to his will, and linked to the assault offending.
[11]	Overall Mr Lawry submitted that Judge O’Driscoll had correctly identified the sentencing principles to be applied. He said that the overall sentence of five years imprisonment was at the high end of the available range but was within it given the number and range of offences that had to be addressed.
[12]	Judge O’Driscoll treated the arson offending as requiring a separate sentence of imprisonment which should be cumulative with the sentences imposed for the other offending. We agree the arson was offending of a different kind, and that this factor made a cumulative sentence on the arson conviction appropriate, in terms of the principle stated in s 84(1) of the Sentencing Act.
[13]	We also agree that a term of 18 months imprisonment was appropriate for the offending involved in this offence, when viewed separately from the other offending. The appellant was the central figure in a scheme to mislead the police as to who was responsible for the damage to the car and to defraud the insurers of the vehicle.
[14]	The five convictions on male assaults female charges were also correctly treated as involving offending of a similar kind and a connected series of offences. Given the proximity of offending for which the appellant was currently serving a term of imprisonment when he was sentenced in July 2004, that term then imposed would normally have been factored into the penalty imposed for the domestic violence. It does not appear from the sentencing notes that this happened. We suspect however this might be because the sentence imposed for domestic violence in April 2004 was made concurrent with sentences of other offending. The Judge was certainly aware of the earlier convictions concerned including that for assault and male assaults female during 2004. He treated it as an aggravating factor. We are of the view that, if considered as separate offending, the term of 18 months imprisonment for the domestic violence involved was not excessive.
[15]	The sentence of two years imprisonment, also cumulative, for the attempt to pervert the course of justice, had some links with the domestic violence offending. These charges did however involve offending of a different kind which was correctly marked by a separate cumulative term of imprisonment. Again if considered separately a two year term of imprisonment was not excessive.
[16]	We are however concerned with the overall cumulative effect of the sentences imposed in relation to the totality of the criminal behaviour involved in the offending. While they reflect the seriousness of each offence considered discretely, in total a term of five years imprisonment is a very long sentence for the conduct involved which took place over a brief period. We have concluded that it is disproportionately long and should be reduced. The seriousness of the total offending will be sufficiently marked by a term of three and a half years imprisonment.
[17]	To give effect to that sentence it is expedient to make adjustments to the individual cumulative component sentences although, as we have said, we accept each would be appropriate, but for their collective total impact.
[18]	The appeal is accordingly allowed. The sentences of eighteen months imprisonment on the count of arson and the sentence of two years imprisonment on the count of attempting to pervert the course of justice, are each reduced to 12 months imprisonment. They will each be served cumulatively with the sentence of 18 months imprisonment for the male assaults female charges which will stand. This makes an effective total term of three and a half years imprisonment.

Solicitors:
Gavin Boot Law, Hamilton, for Appellant
Crown Law Office, Wellington