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Court of Appeal of New Zealand |
Last Updated: 4 July 2014
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
29 May 2014 |
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Court: |
Stevens, Courtney and Lang JJ |
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Counsel: |
I M Brookie for Appellant
M D Downs for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Introduction
[1] Following a jury trial in the High Court at Auckland James Grant Cooper was found not guilty of murder but guilty of the manslaughter of his friend, Javed Mills. He had previously pleaded guilty to one charge of attempting to pervert the course of justice. Mr Cooper had inflicted a fatal blow to the side of Mr Mills’ head during an argument and then took steps to conceal the fact of his death. Allan J imposed a sentence of four years, three months’ imprisonment on the manslaughter charge and four years’ imprisonment on the charge of attempting to pervert the course of justice, to be served cumulatively.[1]
[2] Mr Cooper appeals both sentences on the grounds that they were manifestly excessive as a result of the Judge:
- (a) taking starting points on both counts that were too high;
- (b) failing to give any or adequate discount for prior good character;
- (c) failing to give an adequate discount for remorse;[2] and
- (d) failing to make an adequate reduction to reflect the totality of the offending.
The offending
[3] At the time of Mr Mills’ death, he and Mr Cooper had been friends for some years.[3] Mr Mills seems to have been a talented but troubled young man, mainly due to his drug habit. In early 2009 he had nowhere to live and Mr Cooper arranged for him to stay in a small shed on his parents’ property. Mr Cooper’s father and stepmother did not know about this.
[4] Allan J sentenced on the basis of Mr Cooper’s unchallenged statement to the police.[4] Mr Cooper described going to the shed to talk to Mr Mills. Mr Mills became upset. There was a disagreement which turned physical. Mr Mills attacked Mr Cooper and, in self-defence, Mr Cooper punched Mr Mills twice in the head. He then administered a blow with his elbow to the side of Mr Mills’ head, intending to knock him out. Mr Mills fell to the floor and within a short time Mr Cooper realised that he was dead. The Judge accepted expert evidence that in rare cases a blow to the side of the head can produce instant death as the result of a sub-arachnoid haemorrhage.[5]
[5] Mr Cooper then embarked on the steps that led to the charge of attempting to pervert the course of justice. He wrapped Mr Mills in a bed covering of some kind and placed him in a crawl space underneath the shed. After several days he dug a shallow grave in front of the shed and buried Mr Mills. He used Mr Mills’ bankcard to withdraw a weekly WINZ benefit between July and October 2009. He created a fictitious social media account and purported to communicate with Mr Mills’ friends and family to create the impression that he was alive and had moved to Wellington. He sold Mr Mills’ guitar.
[6] A year passed. Mr Cooper exhumed the body and placed the skeletal remains except for the skull in a wheelie bin nearby. The skull he smashed into small pieces with a hammer. The rest of the skeleton remained in the wheelie bin for a further six to eight months, after which Mr Cooper took the wheelie bin to a nearby unoccupied property. Some months later the staff of a demolition company found what appeared to be human bones amongst debris in the garage of the property and the police began to investigate.
Sentencing in the High Court
[7] Allan J took a starting point of five years’ imprisonment on each charge.[6] In respect of the manslaughter charge he allowed a three month discount for youth and a six month discount to reflect Mr Cooper’s offer to plead guilty, which was rejected by the Crown.[7] Discounts for remorse and previous good character were held not to be appropriate.[8]
[8] On the charge of attempting to pervert the course of justice the Judge allowed a discount of 12 months (20 per cent) for the early guilty plea.[9] No other reductions were given on that charge.
Starting point for manslaughter
[9] There is no guideline case for manslaughter; culpability is to be assessed in light of the circumstances of each case.[10] The level of culpability can vary widely.
[10] The Judge treated the case as a “single punch” case, falling within the category of cases in which, irrespective of whether there has been aggression or violence prior to the punch, the punch itself can be identified as the single cause of death.[11] As the Judge observed, these cases can range from simple assaults which cause the victim to lose his or her balance, through to cases in which the blow itself carries the significant risk that death might ensue.
[11] The Judge identified previous similar cases to reach a provisional starting point and then used the approach in R v Taueki, which provides guidelines for sentencing on cases of serious violence, as a cross-check.[12] He rejected the submission made by Mr Wharepouri on behalf of Mr Cooper, that based on R v Paku and R v Savage a starting point of about three years’ imprisonment was appropriate.[13] He found the decisions of this Court in Ioata v R and Murray v R of greater assistance.[14]
[12] In Ioata, the offender was found to have approached the victim so that he would not see the punch coming and delivered a deliberate and forceful blow to the right side of the victim’s head.[15] The five year starting point was not disturbed on appeal.[16] In Murray, there had been a fight between the offender’s associates and the victim, after which the offender went up to the victim and pushed him.[17] The victim broke away but the offender suddenly punched him on the side of his face. He fell and struck his head on the pavement. The starting point of five years was upheld on appeal.[18]
[13] In Murray this Court observed that whilst a sentencing range of three to four years has often been adopted as a starting point in single punch cases,[19] that starting point may need to be increased where culpability is higher as a result of an intention to cause really serious harm, the nature of the serious harm actually used and the fact that death had resulted.[20]
[14] The Judge took a starting point of five years on the basis of Mr Cooper’s statement:[21]
Your explanation to the police, and it stands unchallenged, was that Javed suddenly attacked you physically, and that in the course of defending yourself you punched him twice in the head. But you also told the police that, having become angry at the attack and at a time when Javed posed no immediate threat, you deliberately struck him in the temple region with your right elbow. That was a manoeuvre that you understood was likely to be more effective than a simple blow with a fist.
[15] Mr Brookie, for Mr Cooper, submitted that the evidence did not support the Judge’s conclusion that the third blow was inflicted at a time when Mr Mills did not pose any immediate threat. We agree that Mr Cooper did not tell the police that he struck Mr Mills at a time when Mr Mills posed no immediate threat but, rather, at a point when he apprehended that Mr Mills was about to attack him again. In his statement Mr Cooper said:
A: ... I was still at the wall I never really moved the whole time. He’d gone back a few steps and then he came for me again. He went to curl his fist and that’s when I punched him again. He stepped back and he went to have another go and this time I elbowed him.
...
Q: Did he threaten you?
A: Did he threaten me? To be honest, no. He didn’t say anything aft – he was growling. He was just growling in anger.
Q: Did he physically threaten you I mean shaking his fists up and down did he raise them at all?
A: No the third one was I had attacked him then.
Q: So he didn’t raise his arms the third time?
A: Yeah. Oh he did raise his arms but he didn’t, he wasn’t balled them up to have a go at me.
Q: So he wasn’t he wasn’t trying to attack you? Is that what you’re saying?
A: He didn’t go to attack then but I thought that he was, if that makes any sense.
Q: So what he was doing.
A: He wasn’t attacking me or anything. But I thought because he was growling and angry and he was coming at – he was coming at me like walking at me and there was no sign from his arms what he was going to do next so I’d say he, he was going to attack me if I hadn’t done anything.
Q: Okay.
A: But at that point in time he wasn’t attacking me if that makes any sense at all.
Q: Alright so he wasn’t at that point attacking you, you what ...
A: I just got him, I just punched him twice you know to get him off me. This third time I thought he was coming back for more like he was – after I’d giving him a couple of hard whacks you know I thought he’s going to get me good if I let him touch me this time. He gonna so yeah nah I sort of – third time was more like nah fuck you man you’ve it was – that was my attitude the third time like nah fuck you man how dare you sort of thing when he was shaking his fists ...
[16] Mr Brookie also submitted that the Judge wrongly failed to give weight to the provocation by Mr Mills when fixing the starting point. This was a matter that was raised at the sentencing hearing. In his statement to the police, Mr Cooper gave a clear description of Mr Mills being the attacker. He described Mr Mills as “having a tantrum, breakdown”, that Mr Mills grabbed him by the collar:
And that’s when he was, he had me collared already and that’s when he put his other hand up to my throat, and that is when he – and that is when he asked me “are you threatening me” or anything like that. He pretty much said you know “what are you trying to say?” But he said it very angrily and very – not quite sure what the word is but intrusively like he was actually gonna do something so I didn’t take that very well, I’ve never been grabbed around the throat by someone before and I could see he was having a breakdown. So I turned around – well I didn’t turn around, that’s not the right word but I’d thought to myself well fuck you then and I gave him a punch. That’s when he released me. He went to go and have another go and I punched him again. He was quite dazed after that but he was still willing to have one more go like, he went to go kick me and the third time I elbowed him over the head.
[17] Where a fatal blow is inflicted in the course of a fight started by the victim it is open to the sentencing judge to recognise an element of provocation.[22] We accept Mr Brookie’s submission that in this case Mr Mills’ instigation of the physical fight between the two men did justify some recognition, though this might have been better treated as a factor lessening the overall culpability of the offending.
[18] On Mr Cooper’s statement, the third blow was delivered in the context of a fight instigated by Mr Mills and in anticipation of a further assault by him. Moreover, there can only have been a matter of seconds between the second and third blows. In these circumstances we agree that the Judge’s description of the circumstances in which the third blow was inflicted does not accurately reflect the unchallenged statement. For this reason, we consider that the case was wrongly characterised as a “single punch” case.
[19] The second of the Judge’s factual findings under challenge was that when Mr Cooper inflicted the blow, he intended to cause really serious harm to Mr Mills. Mr Brookie submitted that the evidence did not support this finding. Having identified this case as broadly comparable with Ioata and Murray, the Judge said:[23]
As in those cases, this was a deliberate blow struck with the elbow, using all the force you could muster Mr Cooper, for the express purpose of knocking Javed out. In other words, you intended to cause really serious harm. That brings you both within the comparable Taueki authorities, and with the class of case referred to by the Court of Appeal in Ioata justifying a higher starting point.
[20] Mr Brookie submitted that the Judge’s conclusion regarding Mr Cooper’s intent must have been based on Mr Cooper’s statement to the police that he had intended to knock Mr Mills out. In his video interview Mr Cooper had said:
My plan was to knock him out ... I just thought, right lights out, not as in lights out permanently but you know knock him out just to shut him up for a bit ...
My intent was just to knock him out, as the boys would all say oh go knock him out. When youse mentioned knock out like you know, give him one decent punch and you’re on the floor unconscious for a bit. So that’s what I mean by got fully angry.
[21] Mr Brookie submitted that the issue of intent was to be viewed in the context of friendship between Mr Mills and Mr Cooper, the fact that the elbow manoeuvre was something Mr Cooper had only ever used in self-defence in the past in his school days and that he had already punched Mr Mills twice in self-defence without any effect.
[22] We do not consider that the Judge can be criticised for concluding that an intention to knock a person out is an intention to cause really serious harm. A blow to the head and being rendered unconscious carry serious risks. The view of many young men that being rendered unconscious is not especially serious is quite wrong and sentencing on cases of this kind should not convey otherwise.
[23] We agree that the starting point of five years was too high as a result of the Judge treating the blow as having been inflicted without any immediate threat and not recognising an element of provocation from Mr Mills. Allowing for the circumstances as Mr Cooper described them, a starting point of four-and-a-half years was appropriate.
Starting point for attempting to pervert the course of justice
[24] On the charge of attempting to pervert the course of justice the Judge took a starting point of five years’ imprisonment by reference to the decisions in R v Vaux-Phillips and R v Callaghan.[24] He considered that Mr Cooper’s case fell between those two cases.
[25] In Vaux-Phillips, Ms Vaux-Phillips had pleaded guilty to being an accessory after the fact to culpable homicide. She had assisted her partner, who had assaulted the victim and dismembered his body and disposed of it in different graveyards.[25] Ms Vaux-Phillips had helped clean up the scene, conceal the body and lied to the victim’s mother. A starting point of three years’ imprisonment was taken.[26]
[26] In R v Callaghan, Mr Callaghan had murdered his ex-wife and then cleaned up the scene, removed the body and disposed of it by dismembering the body and burying it in the Waitakere Ranges.[27] As in this case, Mr Callaghan took steps to lead the victim’s friends to believe that she was still alive, including creating text conversations between him and her and taking her car to Hamilton where it was abandoned. The sentencing Judge considered the case to be near the most serious of its type and one that would have justified a sentence of six years.[28]
[27] Allan J considered the present case to be less serious than Callaghan because of the substantially greater degree of planning and implementation that occurred in Callaghan, even though the ultimate objectives were the same.
[28] Mr Brookie submitted that the offending was closer to the offending in Vaux-Phillips, pointing out that the offending in both Vaux-Phillips and Callaghan was more sophisticated and elaborate than that undertaken by Mr Cooper. He described the burial of Mr Mills on the premises and subsequent removal of his remains only a few doors along as lacking determined planning and sophistication. He submitted that the duration of the offending was, to some degree, the result of the transient lifestyle that Mr Cooper had led, which enabled the matter to drift on longer than it might otherwise have done. He also contrasted the intention of the offenders in both Vaux-Phillips and Callaghan, which was to provide long-term if not permanent obstacles to a police investigation and pointed out that they were concealing the more serious crime of murder.
[29] We agree that, serious though Mr Cooper’s offending was, it falls between the offending in Vaux-Phillips and Callaghan. It should also be viewed against the conclusion we have come to regarding the starting point on the manslaughter charge. In our view, the appropriate starting point would have been the same as that we consider to be appropriate for the manslaughter charge, four-and-a-half years’ imprisonment.
Discount for remorse
[30] The Crown opposed any reduction for remorse on the basis that there was virtually no evidence of remorse before, during or after the trial. The Judge accepted that Mr Cooper was genuinely remorseful, referring to a handwritten letter he received at the sentencing hearing.[29] Nevertheless, referring to the Supreme Court’s decision in Hessell v R, he proceeded on the basis that a separate allowance for remorse should only be available when the expression and evidence of remorse are truly remarkable and exceptional, which he did not consider to be the case.[30]
[31] Mr Brookie submitted that the Judge’s approach was incorrect. In Hessell the Supreme Court rejected the approach taken by the Court of Appeal that treating remorse separately from a discount given for a guilty plea is generally undesirable, and only exceptional remorse could attract its own credit.[31] Instead, the Supreme Court considered:
[64] This approach does not fit in well with the terms of the [Sentencing Act 2002], which treats “any remorse shown by the offender” as a mitigating factor that is separate from the guilty plea. The statutory requirement that remorse be “shown” adequately addresses the Court of Appeal’s concerns. Remorse is not necessarily shown simply by pleading guilty. Sentencing Judges are very much aware that remorse may well be no more than self pity of an accused for his or her predicament and will properly be sceptical about unsubstantiated claims than an offender is genuinely remorseful. But a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse. Where remorse is shown by the defendant in such a way, sentencing credit should properly be given separately from that for the plea.
[32] We agree that a small discount could have been given on the basis of Hessell. However, we are satisfied that the adjustment to the sentences that will result from our earlier conclusions will result in a sentence that fairly reflects the overall culpability without the need for a further discount.
No discount for previous good character
[33] Mr Brookie also submitted that a discount should have been given for Mr Cooper’s previous good character, at least in respect of the manslaughter sentence.
[34] The Judge described Mr Cooper’s record as “almost spotless” (he had a minor traffic conviction in 2009) but refused to give any discount because of Mr Cooper’s conduct following Mr Mills’ death.[32] However, Mr Brookie submitted that the application of a discount should have been assessed in relation to the manslaughter charge separately from the subsequent conduct. He noted that this is what the Judge had done in relation to the youth discount, allowing three months on account of Mr Cooper’s age at the time of the manslaughter.
[35] Once again, whilst we agree that it was open to the Judge to allow a small discount on this ground, it is unnecessary to make a separate adjustment now.
Totality
[36] In sentencing, Allan J did not refer to totality or a reduction to reflect the totality of the offending.[33] However, the sentencing notes contain the following addendum:
At the conclusion of the sentencing, and after Mr Cooper had left the courtroom, Mr Wharepouri raised with me the question of whether I had sufficiently considered the need to adjust the sentencing conclusion to which I had come in order properly to take into account totality considerations. I assured him that I had done so, but that I considered the seriousness of the perverting charge was such that totality did not call for a reduction in the overall sentences imposed upon Mr Cooper.
[37] Mr Brookie submitted that a careful assessment of totality should have been undertaken and a reduction made to reflect the fact that the two offences were closely linked, with the charge of attempting to pervert the course of justice essentially a result of failing to react properly to an accidental death.
[38] Whilst it is desirable for a sentencing judge to specifically refer to the issue of totality, it is unnecessary for us to make any adjustment on that basis having regard to the adjustments that will be made as a result of our decision regarding the appropriate starting points. Taken together as cumulative sentences they properly reflect the overall criminality for the offending.
Result
[39] We consider that the starting point taken for the manslaughter charge was too high. Four-and-a-half years was appropriate. The discounts given of six months for Mr Cooper’s indication that he would plead guilty to manslaughter and three months for his youth should remain. The appeal against sentence on the manslaughter charge is therefore allowed. The sentence of four years, three months’ imprisonment is quashed and substituted with a sentence of three years, nine months.
[40] The starting point taken on the charge of attempting to pervert the course of justice was also too high; four-and-a-half years was appropriate. The discount of 12 months allowed by the Judge for the guilty plea should remain. The appeal against sentence on this charge is therefore allowed. The sentence of four years’ imprisonment is quashed and substituted with a sentence of three years, six months to be served cumulatively on the sentence imposed for the manslaughter.
Solicitors:
Crown Law
Office, Wellington for Respondent
[1] R v Cooper [2013] NZHC 2713 at [74].
[2] This ground was added, without objection, at the appeal hearing. Another ground relating to the discount for youth was not pursued.
[3] R v Cooper, above n 1, at [3].
[4] At [5].
[5] At [10].
[6] At [45] and [54].
[7] At [62] and [68].
[8] At [61].
[9] At [68].
[10] R v Wickliffe [1987] 1 NZLR 55 (CA) at 62.
[11] R v Cooper, above n 1, at [35].
[12] At [33]; R v Taueki [ 2005] 3 NZLR 372 (CA).
[13] R v Paku HC Hamilton CRI-2005-019-6408, 7 September 2006; R v Savage T982/142, 12 March 1999.
[14] Ioata v R [2013] NZCA 235; Murray v R [2013] NZCA 177.
[15] Ioata v R, above n 14, at [6].
[16] At [32].
[17] Murray v R, above n 14, at [5].
[18] At [22].
[19] Referring to Kepu v R [2011] NZCA 104 at [9] and the authorities discussed therein.
[20] Murray v R, above n 14, at [21], referring to R v Tai [2010] NZCA 598 at [14]–[15].
[21] R v Cooper, above n 1, at [5].
[22] See R v Efeso HC Auckland CRI-2008-092-7925, 24 October 2008 at [31]; R v Orupe HC Wellington CRI-2009-035-1365, 3 December 2009 at [20]–[22].
[23] R v Cooper, above n 1, at [40] (footnote omitted).
[24] At [51]–[54]; R v Vaux-Phillips [2012] NZHC 1119; R v Callaghan [2012] NZHC 596.
[25] R v Vaux-Phillips, above n 24, at [46].
[26] At [33].
[27] At [6].
[28] At [54].
[29] At [58].
[30] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[31] See, for example, R v D (CA430/96) (1997) 14 CRNZ 645 (CA) at 647, referred to in Hessell, above n 30, at [61].
[32] At [56].
[33] Sentencing Act 2002, s 85.
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