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Carpenter v Police

Carpenter v Police

Case [2021] NZHC 1634 2 July 2021

Appeal

Jurisdiction

Breach of Trust

Unconscionable Conduct

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-463-000027

[2021] NZHC 1634

BETWEEN
ALLAN CARPENTER

Appellant

AND

THE NEW ZEALAND POLICE

Respondent

Hearing: 21 June 2021

Counsel:

J Mather and L Herbke for applicant G Banuelos for respondent

Judgment:

2 July 2021

JUDGMENT OF KATZ J

[Appeal against conviction and sentence]

This judgment was delivered by me on 2 July 2021 at 3:00 pm

Registrar/Deputy Registrar

Solicitors:Gordon Pilditch, Office of the Crown Solicitor, Rotorua Barter Law, Auckland

Counsel: J Mather, Barrister, Vulcan Chambers, Auckland

CARPENTER v NEW ZEALAND POLICE [2021] NZHC 1634 [2 July 2021]

Introduction

[1] Allan Carpenter pleaded guilty in the Taupo District Court to one charge of intentionally making an intimate visual recording. At sentencing, he applied under s 106 of the Sentencing Act 2002 (“the Act”) for a discharge without conviction. Judge M A MacKenzie refused his application.1 Her Honour also made a protection order in favour of the victim.

[2] Mr Carpenter appeals against both the Judge’s refusal to grant a discharge without conviction and the making of the protection order. The issues on appeal are:

(a)whether the Judge erred by finding that the consequences of Mr Carpenter’s conviction were not out of all proportion to the gravity of his offending; and

(b)whether the Judge erred by making a protection order against Mr Carpenter in favour of the victim.

Facts

[3] Mr Carpenter and the victim had known each other for about two years prior to the offending. Their relationship became intimate approximately three months prior.

[4] On 27 April 2020, Mr Carpenter was at an outdoor education centre in Turangi. He and the victim had spent the night together. At around 7.15 am, the victim left the bed to use the bathroom. While she was in the bathroom, Mr Carpenter turned his camera on and set it to record video, intending to record sexual activity between himself and the victim when she returned. Mr Carpenter faced the camera towards the bed and concealed it with a hat.

[5] When the victim returned to the bed, the parties had sexual intercourse. Mr Carpenter removed the blankets from the bed, revealing the victim’s naked body

1 Police v Carpenter [2021] NZDC 2743.

to the camera. The camera captured footage of the parties engaging in sexual activity for approximately 15 minutes.

[6] When spoken to by police, Mr Carpenter said that this was the first time he had done such an act, and that he felt ashamed of himself.

Relevant law – discharge without conviction

[7] If a person has either been found guilty of, or has pleaded guilty to, an offence, the Court may discharge them without conviction.2 The Court must not do so, however, unless the Court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.3 There are three stages to the Court’s assessment:4

(a)First, the Court must identify the gravity…

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 Carpenter v Police

Details

AGLC: Carpenter v Police [2021] NZHC 1634
Case: [2021] NZHC 1634
Decision Date: 2 July 2021

CaseChat Overview and Summary

Allan Carpenter pleaded guilty in the Taupo District Court to intentionally making an intimate visual recording. He appealed against both the Judge’s refusal to grant a discharge without conviction and the making of a protection order in favour of the victim. The issues on appeal were whether the Judge erred by finding that the consequences of Mr Carpenter’s conviction were not out of all proportion to the gravity of his offending and whether the Judge erred by making a protection order against Mr Carpenter in favour of the victim. The court held that the appeal against the refusal to grant a discharge without conviction was dismissed because the court did not err in concluding that the consequences of a conviction were not out of all proportion to the gravity of the offending. The appeal against the making of a protection order was allowed because the court erred in making a protection order. The protection order was quashed.

Orders