Carpenter v R - [2013] NZCA 395

IN THE COURT OF APPEAL OF NEW ZEALAND

CA96/2013
[2013] NZCA 395

BETWEEN	JAMES CARPENTER Appellant
AND	THE QUEEN Respondent

Hearing:	29 July 2013
Court:	French, Goddard and Simon France JJ
Counsel:	T W Fournier for Appellant S B Edwards and M L Wong for Respondent
Judgment:	26 August 2013 at 10.00 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal against sentence is allowed.

CThe minimum period of imprisonment of seven years is quashed and a minimum period of imprisonment of five years and six months is substituted. The sentence of 11 years’ imprisonment is confirmed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

Introduction

The appellant pleaded guilty to charges of aggravated robbery, using a firearm against a law enforcement officer and unlawful possession of a firearm. He was sentenced in the District Court by Judge Farish to 11 years’ imprisonment on the charges of aggravated robbery and using a firearm, with a minimum non-parole period of seven years.[1] On the charge of unlawful possession of a firearm he received a concurrent sentence of two years’ imprisonment. In addition, the appellant was given a first strike warning.

Issues on appeal

[1]New Zealand Police v Carpenter DC Christchurch CRI-2012-009-12369, 18 January 2013.

Two grounds of appeal are advanced. The first is that the sentence of 11 years’ imprisonment is manifestly excessive. The second is that the minimum period of imprisonment is also manifestly excessive.

Background

In the early hours of the morning of 2 October 2012, the appellant and an associate, who had both been drinking, went to a private home in suburban Christchurch. Their purpose was to recover money the appellant believed was owed to him from a drug deal that occurred a few days earlier. However, they mistakenly entered the wrong house. The appellant was armed with a shotgun loaded with five cartridges and his co-offender was armed with a knife. The two men entered the house by smashing the glass panes on the front door and then kicking the door open.
The occupants of the house were a 26 year old woman and her two children, aged five and two. They had no knowledge of the appellant or his associate. The appellant took the woman’s cellphone and demanded $10,000 cash from her. She struggled with the appellant and during the course of their confrontation, the appellant deliberately discharged the shotgun twice, once into the floor of the hallway and once into the ceiling in the spare bedroom.
The woman fled from the house to summon help and the appellant chased her into the street. His co-offender remained in the house, searching for items to steal. The appellant caught up with the woman and a further struggle ensued over the shotgun. The appellant threatened to kidnap the woman’s children if she did not return to the house. The woman managed to escape, and ran to nearby premises, where she called the police.
The appellant,…

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 R

Details

AGLC: Carpenter v R [2013] NZCA 395
Case: [2013] NZCA 395
Decision Date: 26 August 2013 at 10.00 am

CaseChat Overview and Summary

The case of Carpenter v R involved an appeal by James Carpenter against his sentence, which was imposed by the District Court. The appellant was sentenced to 11 years' imprisonment for aggravated robbery, using a firearm against a law enforcement officer, and unlawful possession of a firearm, with a concurrent sentence of two years. The appellant was also issued a first-strike warning. The appellant's appeal was primarily focused on the severity of the sentence, arguing that the 11-year imprisonment term and the seven-year minimum non-parole period were excessively harsh.

The Court of Appeal addressed two primary legal issues. Firstly, whether the 11-year imprisonment sentence was manifestly excessive. The Court noted that while the appellant argued that the starting point for the firearm charge was incorrectly set, the appellate court would look at the sentence as a whole. Given the seriousness of the crimes, including the appellant's use of a loaded shotgun, targeting a family home, and the significant impact on the victims, the Court found that the 11-year sentence was within the acceptable range.

Secondly, the Court examined whether the seven-year minimum non-parole period was excessive. The Court highlighted that the Judge had not adequately considered the appellant's personal circumstances, such as his early guilty plea and willingness to engage in restorative justice. The Court concluded that a minimum period of imprisonment of 50 per cent of the total sentence, which equates to five years and six months, was more appropriate.

The Court of Appeal granted the appellant's application for an extension of time to appeal and allowed the appeal against sentence. The Court quashed the seven-year minimum non-parole period and substituted it with a five-year and six-month period. The 11-year imprisonment sentence was confirmed.

Orders