Carpenter v R - [2010] NZCA 560

IN THE COURT OF APPEAL OF NEW ZEALAND
CA594/2010
[2010] NZCA 560

BETWEENGRANT BRENDON CARPENTER

Appellant

ANDTHE QUEEN

Respondent

Hearing:22 November 2010

Court:Harrison, Ronald Young and Keane JJ
Counsel:P Jensen for Appellant

K Laurenson for Respondent

Judgment:22 November 2010

ORAL JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by Harrison J)
Introduction
[1]        Grant Carpenter appeals against a sentence of two years and six months’ imprisonment imposed upon him in the District Court at Napier following a plea of guilty to one count of attempted aggravated robbery.[1]
[1]      R v Carpenter DC Napier CRI-2009-041-83, 16 July 2010.
[2]        Mr Carpenter’s appeal is advanced on the ground that the sentence was manifestly excessive and that it should have been one of 18 months’ imprisonment.
[3]        As this appeal is fact specific and does not raise any important issue of principle, it is appropriate to deliver judgment orally.
District Court
[4]        One afternoon in November 2008 Mr Carpenter parked his car near a Four Square shop in Napier. He had earlier changed the vehicle registration plates. He disguised himself with a beanie together with a scarf and sunglasses. He carried a tomahawk.
[5]        Mr Carpenter then entered the shop. He demanded that the two shop owners, who were the only occupants, open the till. When they refused, Mr Carpenter threatened them with the tomahawk by holding it above his head. The owners escaped. Mr Carpenter ran from the premises and escaped in his vehicle but was identified by members of the public.
[6]        It was common ground that Mr Carpenter did not steal any items from the shop.
[7]        Mr Carpenter was then aged 29 years. He was apparently suffering from an addiction to a range of drugs including methamphetamine. He had previous convictions. The most recent, for dealing in methamphetamine in September 2007, had resulted in a sentence of two years’ imprisonment.
[8]        The sentencing Judge, Judge Moore, fixed a starting point of three years’ imprisonment. He came to that figure by adopting an appropriate starting point of four years’ imprisonment for the substantive offence of aggravated robbery. He applied the sentencing tariff decision in R v Mako.[2]He reduced the starting point by a year because the offence was inchoate or incomplete. He allowed discounts of four months for a late guilty plea and two months for Mr Carpenter’s payment of $1,000 for emotional harm reparation. The end sentence was two and half years.
Appeal
[2]            R v Mako [2000] 2 NZLR 170.
[9]        Mr Jensen’s principal submission on appeal, as it was apparently in the District Court, is to the effect that, because the Crimes Act 1961 sets a maximum penalty for an attempt to commit a crime at one half of the maximum punishment for the substantive offence, by parity of reasoning the Judge should have reduced the starting point for Mr Carpenter’s sentence on the same basis from four years to two years.[3] Thus, he says, the Judge was wrong in…

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 [2010] NZCA 560
Case: [2010] NZCA 560
Decision Date: 22 November 2010

CaseChat Overview and Summary

Grant Brendon Carpenter appeals against the sentence of two years and six months’ imprisonment imposed on him in the District Court at Napier, following a guilty plea to one count of attempted aggravated robbery. The appeal is grounded in the argument that the sentence was manifestly excessive and should have been one of 18 months’ imprisonment. The court held that the appeal was fact-specific and did not raise any important issues of principle, deeming it appropriate to deliver the judgment orally. The sentencing Judge had fixed a starting point of three years’ imprisonment, reduced by one year for the incomplete nature of the offence and further reduced by six months for mitigating factors. Carpenter’s counsel argued that the sentence should have been scaled down by 50% from the starting point for the completed offence due to the attempted nature of the crime, and that the discount for emotional harm reparation was insufficient. The Court of Appeal rejected these arguments, finding no sentencing principle requiring a rigid 50% scale for attempted crimes, and that the Judge’s approach to sentencing was appropriate given the proximity of the offence to completion. The court held that the sentence was not manifestly excessive, and dismissed the appeal.

Orders