Carpenter v Police

[2021] NZHC 3545

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2021-441-27

[2021] NZHC 3545

BETWEEN

GRANT BRENDON CARPENTER

Appellant

AND

NEW ZEALAND POLICE

Respondent

CRI-2021-441-28

BETWEEN

CATHERINE ELIZABETH TEMPLE
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

15 December 2021

Appearances:

A McPherson for Appellant

J D Bridgman for Respondent

Judgment:

17 December 2021

JUDGMENT OF ISAC J

[Sentence appeal]

Introduction

[1]                 Ms Temple and Mr Carpenter are partners in, and out, of crime. They appeal sentences imposed by Judge Collins on 31 August 2021.1

[2]Mr Carpenter was sentenced to 12 months’ imprisonment on six charges:

1      New Zealand Police v Carpenter [2021] NZDC 17439; New Zealand Police v Temple [2021] NZDC 17429.

CARPENTER and TEMPLE v NEW ZEALAND POLICE [2021] NZHC 3545 [17 December 2021]

(a)the lead charge of receiving a Toyota Hilux valued at $15,000;

(b)two charges of failing to answer bail;

(c)a second charge of receiving items worth less than $500;

(d)possession of methamphetamine; and

(e)a further charge of possession of codeine.

[3]Ms Temple was sentenced to six months’ home detention on five charges:

(a)a charge of receiving the Toyota Hilux, on which Mr Carpenter was a co-defendant;

(b)possession of methamphetamine

(c)failing to answer bail;

(d)a further charge of receiving;

(e)theft.

[4]                 Ms Temple received home detention while Mr Carpenter was imprisoned because at the time Mr Carpenter did not have a suitable address. He was granted leave to apply for home detention, however, and was resentenced on 10 November 2021 to two months’ home detention. That sentence took into account the time he had spent in custody since 31 August.

[5]The grounds of appeal advanced by both appellants are broadly the same:

(a)while the starting point for the lead offence was within range, the additional uplift for the balance offending was too high, and the end point sentence manifestly excessive; and

(b)a sentence of intensive supervision and community detention, as recommended by Corrections, were the least restrictive outcome called for in the circumstances.

The offending

[6]                 On 27 January 2021, Ms Temple stole five items from the Waipukurau hospice shop. The total value was $60. Later that day, both appellants were located in a vehicle. Mr Carpenter was in possession of a “large number” of codeine pills not prescribed to him. Both appellants were in possession of 0.16 grams of methamphetamine, and various licenses and credit cards stolen from eight victims between 31 March 2019 and 5 January 2021.

[7]                 The lead charge of receiving related to a Toyota Hilux valued at $15,000. The vehicle was stolen from its owner on 9 May 2021. On 27 June 2021, the appellants were found in possession of the vehicle.

[8]                 Both appellants were charged jointly and appeared for sentence together on the same day in respect of the two charges of receiving, possession of methamphetamine, and failure to answer bail on 28 April 2021. I adopt the helpful table provided by counsel for the respondent, Mr Bridgman, in submissions which identifies the charges that were joint and several:

Charge	Appellant	Maximum penalty
Receiving (over $1,000	Both	7 years’ imprisonment
Receiving (under $500) (representative	Both	3 months’ imprisonment
Possession of methamphetamine	Both	6 months’ imprisonment
Possession of codeine	Mr Carpenter only	3 months’ imprisonment
Theft (under $500)	Ms Temple only	3 months’ imprisonment
Failure to answer bail	23 March 2021 – Carpenter only 28 April 2021 - both	1 year’s imprisonment

Sentencing decision

Mr Carpenter

[9]                 Judge Collins identified the charge of receiving the motor vehicle as the lead offence. Having outlined the relevant facts the Judge observed that Mr Carpenter had a significant number of previous convictions, although found that they did not warrant a discrete uplift from the starting point.2

[10]              The Judge adopted a starting point on the receiving charge of 12 months.3 He then applied an uplift for the balance of Mr Carpenter’s five other charges of four months. That lead to an adjusted starting point of 16 months’ imprisonment.4

[11]              A four month discount was then applied to reflect the appellant’s guilty plea, arriving at an end sentence of 12 months’ imprisonment. As noted, home detention was not available due to the lack of a suitable address. Nevertheless, leave was reserved under s 80(I) of the Sentencing Act 2002 to substitute a sentence of imprisonment for one of home detention should a suitable address become available.5 And, as I have noted, that came to pass; in November 2021 Mr Carpenter was resentenced to two months’ home detention.

Ms Temple

[12]              Once again Judge Collins identified the lead charge of receiving the Toyota Hilux and adopted a starting point of 12 months’ imprisonment.6 He then applied an uplift of three months’ imprisonment to reflect the balance of Ms Temple’s remaining four charges bringing up an adjusted starting point of 15 months imprisonment.7 The Judge then allowed a three month credit for the appellant’s guilty pleas bringing up an end sentence of 12 months’ imprisonment.8 As Ms Temple had a suitable address at

2      New Zealand Police v Carpenter, above n 1, at [6].

3      At [9], citing Drake v P [2015] NZHC 2252; Proctor v P [2018] NZHC 763; Ellis v R [2012] NZCA 513.

4 At [10].

5 At [12].

6      New Zealand Police v Temple, above n 1.

7 At [5].

8 At [6].

which to serve a sentence of home detention, she was sentenced to six months’ home detention accordingly.9

[13]              In something of a twist, while it seems clear the Judge intended to ensure that there was complete parity between the two defendants in terms of both starting and end point sentences, the result of Mr Carpenter’s re-sentencing in November means he will be released from his sentence of home detention in January 2022, while     Ms Temple will remain subject to her sentence for an additional month.

Discussion

Uplift for balance offending too high?

[14]              On behalf of the appellants, Ms McPherson argued that the four month uplift applied by the Judge to reflect the balance of Mr Carpenter’s five convictions was excessive. She argued that the second receiving charge could warrant one month, and that the remaining three charges would only warrant a further month. Ms McPherson argued that anything above a three month uplift to the starting point would result in a manifestly excessive sentence. A similar argument, with less force, was advanced on behalf of Ms Temple, who received a three month uplift.

[15]              The difficulty with the appellants’ submission is that it starts from an acceptance that at least a two-month uplift was warranted. Standing back, an overall adjusted starting point one or, at most, two months above the appellants’ accepted range could not in my view result in a manifestly excessive end-point sentence. Any interference based on such a small margin would only ever be tinkering on appeal.

[16]              More fundamentally, however, the uplift of four months was, in my view, lenient. The maximum penalties for the remaining charges Mr Carpenter faced total 3 years’ imprisonment. Against the collective maximum, a sentence of four months could not be described as unwarranted or excessive. The receiving charge in particular was representative, involving eight separate thefts and victims.

9 At [6].

[17]              The same basic difficulty confronts Ms Temple’s appeal on this ground as well. It is probable the judge adopted a lower uplift of three months given Ms Temple did not face a second charge of breach of bail.

Should a community base sentence be imposed?

[18]              Ms McPherson submitted that the pre-sentence report writer’s recommendation of intensive supervision and community work were sufficient to meet the need for denunciation and deterrence, while providing a genuine prospect of rehabilitation. It was the least restrictive outcome called for in counsel’s submission.

[19]              But having accepted that a 12-month sentence of imprisonment was appropriate on the lead charge, the foundation for this ground of appeal falls away. A community-based sentence was never realistic despite the recommendation. And while imprisonment was the appropriate sentence type, both appellants have been admitted to home detention. So, there is nothing in this ground of appeal.

Credit for time spent in custody?

[20]              A final ground of appeal advanced on behalf of Ms Temple relates to the time she spent on remand before sentence.

[21]              Ms Temple spent 22 days in custody. Ms McPherson submits that the Judge failed to give her any credit when setting her sentence of home detention to reflect time served.

[22]              While any discount for pre-sentence detention is a matter of discretion and not a one-for-one calculation,10 I accept that Ms Temple ought to receive a credit reflecting her time in custody. It is clear the Judge intended to treat the two defendants alike for sentencing purposes. But as Ms McPherson pointed out, the effect of Mr Carpenter’s re-sentencing in November, which took into account the time he spent in custody, has resulted in a disparity in the duration of the sentence imposed on both appellants;  Ms Temple will remain subject to a sentence of home detention for over a month longer than Mr Carpenter.

10     Kidman v R [2011] NZCA 62 at [15].

[23]              For this reason only, I consider there has been an error of approach, and that the impact of it is manifestly excessive when weighed against the six month home detention sentence imposed. I accept Ms McPherson’s submission that the 22 days spent in custody could be equated with six weeks of home detention. Accordingly, I quash Ms Temple’s sentence of six months’ home detention and impose one of four and a half months. The standard and special release conditions imposed by the District Court, for six months following the sentence expiry date, will remain.

Result

[24] Mr Carpenter’s appeal is dismissed. Ms Temple’s appeal is allowed in terms set out at [23] above. The standard and special release conditions imposed by the District Court, for six months following the sentence expiry date, will remain.

Isac J

Solicitors:

Crown Solicitor, Napier for Respondent