Carnell v The the Queen - [2022] NZHC 630

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2022-463-0020 [2022] NZHC 630

BETWEEN
MARK KHALEB TIPENE CARNELL

Appellant

AND

THE QUEEN

Respondent

Hearing: 29 March 2022

Appearances:

R E Webby and R M G Duncan for Appellant A J Pollett for Respondent

Judgment:

30 March 2022

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 30 March 2022 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors: Webby & Associates, Tauranga
Pollett Legal Ltd, Crown Solicitor, Tauranga

CARNELL v R [2022] NZHC 630 [30 March 2022]

Introduction

[1] The appellant, Mr Carnell, appeals against sentence on one charge each of driving whilst disqualified1 and driving whilst under the influence of drugs, causing death.2

[2] Mr Carnell pleaded guilty to the offending. He was sentenced to two years’ imprisonment on the driving whilst under the influence charge and to one month’s imprisonment on the driving whilst disqualified charge. Mr Carnell was also disqualified from driving for two years, together with standard and special release conditions. These sentences were imposed by Judge Bidois in the District Court at Whakatane on 21 January 2022.

[3] Mr Carnell appeals against sentence on the basis that the Judge erred in declining to impose a sentence of home detention, as the least restrictive outcome and most appropriate sentence under s 8(g) of the Sentencing Act 2003 (“Act”).

[4] The Crown opposes the appeal on the basis that an end sentence of imprisonment was the least restrictive outcome appropriate in the circumstances.

Background

[5] Around 5:45 pm on 14 May 2021, Mr Carnell was driving west on Bridge Street, Opotiki.

[6] Mr Carnell cut the corner as he turned right onto Goring Street, drove on the wrong side of the road, and collided with the victim, being a 14-year-old boy riding a mini chopper motorcycle who was approaching the same intersection from the south. The victim sustained serious head and chest injuries and died at the scene.

[7] Subsequent testing of Mr Carnell’s blood revealed the presence of methamphetamine (at a low reading of 0.01 milligrams per litre of blood) and cannabis. Mr Carnell told the Police that he had smoked two “cones” prior to driving

1 Land Transport Act 1998, ss 32(1)(a) and 32(3): maximum penalty 3 years’ imprisonment or
$4500 fine.
2 Sections 61(2) and (3AA): maximum penalty 10 years’ imprisonment or $20,000 fine.

but denied ever using methamphetamine. He attributed the methamphetamine found in his system to the cannabis he had consumed, which he said may have been laced with methamphetamine. However, even if the methamphetamine is put to one side, Mr Carnell was clearly under the influence.

[8] At the time of the offending, Mr Carnell was aged 29 and disqualified from driving.

[9]This brings me to Mr Carnell’s history of driving-related offending.

[10] On 9 October 2020, Mr Carnell was apprehended for driving with excess breath alcohol, returning a reading of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carnell v The the Queen

Details

AGLC: Carnell v The the Queen [2022] NZHC 630
Case: [2022] NZHC 630
Decision Date: 30 March 2022

CaseChat Overview and Summary

The appellant, Mark Khaleb Tipene Carnell, appealed against his sentence for charges of driving while disqualified and driving while under the influence of drugs, causing death. Carnell had pleaded guilty to both charges and was sentenced to two years' imprisonment for the former and one month for the latter, in addition to being disqualified from driving for two years. The appeal focused on the judge's decision not to impose a sentence of home detention, which Carnell's counsel argued was the least restrictive and most appropriate sentence under the Sentencing Act 2002. The Crown opposed the appeal, maintaining that imprisonment was the appropriate sentence given the circumstances. The court considered the history of Carnell's driving-related offenses, including three prior convictions for driving with excess breath alcohol, and concluded that a term of imprisonment was appropriate. The appeal was dismissed as the judge's decision to impose imprisonment was within his discretion and there was insufficient evidence to confidently rely on home detention to prevent further offending.

Orders