Carrington v Police - [2016] NZHC 2351

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-063-3631 [2016] NZHC 2351

BETWEEN
STORM CARRINGTON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 October 2016

Appearances:

L Te Kani for Appellant
M S Jenkins for Respondent

Judgment:

4 October 2016

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

Solicitors:
Crown Solicitor, Rotorua

CARRINGTON v NEW ZEALAND POLICE [2016] NZHC 2351 [4 October 2016]

[1] Mr Carrington pleaded guilty in the District Court to charges of stealing a firearm, unlawfully being in possession of that firearm and discharging the firearm within a dwellinghouse so as to endanger persons or property. He faced an additional charge of intentionally damaging police property. This related to events after Mr Carrington was arrested on the other charges and proceeded to spread effluent around the cell in which he was housed at the police station.

[2] On 6 May 2016, Judge Roberts sentenced Mr Carrington to an effective term of 18 months imprisonment.1 He appeals against sentence on the basis that the Judge erred and ought to have imposed a community-based sentence.

The facts

[3] The firearms charges were laid as a result of an incident that occurred on

11 December 2015. At that time Mr Carrington was staying with an associate. He went through his associate’s house until he found the keys to a firearm cabinet. These were stored within another cupboard within the address. He then opened the firearms cabinet and removed a .243 Remington rifle together with some ammunition.

[4] Mr Carrington then proceeded to another address to visit a woman who was known to him. This person noticed he was carrying a bag that had the end of a chainsaw sticking out of it. When she enquired as to why he was carrying the chainsaw, he said words to the effect that “this is the real thing”. He then produced the rifle that he had taken from the address where he had been staying. His associate then turned around and the firearm discharged accidentally. The bullet passed through a refrigerator and exited into the exterior wall of the house where it was stopped by brickwork. Mr Carrington apologised to the person whose house he as visiting, and told her he had not known the rifle was loaded. He then left the address.

[5] The following day, the police stopped Mr Carrington whilst he was travelling in a motor vehicle. They found the stolen firearm in the boot of the vehicle. When

1 New Zealand Police v Carrington [2016] NZDC 7983.

they searched Mr Carrington, they found a magazine with one live round in it. They found a further spent cartridge in his pocket. As already observed, Mr Carrington subsequently spread effluent around the walls of the cell in which the police placed him at the police station.

The Judge’s decision

[6] The Judge took a starting point of two years imprisonment on all charges. He then allowed a discount of six months, or 25 per cent, to reflect early guilty…

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.

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Details

Case: [2016] NZHC 2351
Decision Date: 4 October 2016

CaseChat Overview and Summary

The High Court of New Zealand, Rotorua Registry, considered an appeal by Storm Carrington against his sentence imposed by Judge Roberts in the Rotorua District Court. Carrington had pleaded guilty to charges of stealing a firearm, unlawfully possessing it, discharging it within a dwelling to endanger persons or property, and intentionally damaging police property. The police property damage charge arose from Carrington's actions after his arrest when he spread effluent in his police cell. Judge Roberts sentenced Carrington to 18 months imprisonment, which Carrington now appeals. Carrington argues that the sentence should have been a community-based sentence.

The legal issues in this appeal revolve around whether the District Court Judge erred in imposing an 18-month imprisonment sentence instead of a community-based sentence. Carrington's counsel argues that the District Court should have imposed a sentence of home detention or intensive supervision, despite the absence of a home detention index in the pre-sentence report. The arguments also highlight Carrington's young age, his lack of prior convictions, and his head injury that may have affected his ability to comply with community sentences.

The High Court, in its judgment, found some merit in the appeal. Lang J acknowledged the significance of Carrington's failure to complete the community work sentence and his lack of engagement with the authorities. However, the Court considered Carrington's age, minimal prior convictions, and the potential benefits of engaging him through intensive supervision. Lang J concluded that the interests of the community would be better served by a sentence of intensive supervision, which would allow Carrington to engage with authorities and address his underlying issues. The Court quashed the 18-month imprisonment sentence and imposed a 12-month sentence of intensive supervision instead, with conditions that Carrington must engage with the programme or face potential breach charges and return to prison.

Orders