Carruth v R - [2013] NZCA 296

IN THE COURT OF APPEAL OF NEW ZEALAND

CA787/2012
[2013] NZCA 296

BETWEEN	NATHAN BRIAN CARRUTH Appellant
AND	THE QUEEN Respondent

Hearing:	10 June 2013
Court:	O'Regan, MacKenzie and Miller JJ
Counsel:	C J Tennet for Appellant M J Lillico for Respondent
Judgment:	10 July 2013 at 11 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
B The sentences imposed in the District Court are quashed. In their place, we impose a sentence of three years’ imprisonment on the charge of aggravated robbery, a concurrent sentence of one year’s imprisonment on the charge of demanding with menaces and a concurrent sentence of one month’s imprisonment in relation to the review of the sentence of community work. The total sentence is therefore one of imprisonment for three years.

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REASONS OF THE COURT

(Given by O’Regan P)

Introduction

Mr Carruth was convicted after a District Court jury trial on charges of demanding with intent to steal and aggravated robbery. He was sentenced by the trial Judge, Judge MacAskill to a term of imprisonment for three years and four months.[1] In addition he was sentenced to a cumulative sentence of two months’ imprisonment as a result of a review of a sentence of community work.

Grounds of appeal

[1]R v Kura DC Christchurch CRI-2011-009-14315, 2 November 2012.

Mr Carruth now appeals against sentence. The grounds are:
(a)Counsel error: Mr Carruth says his lawyer failed to advise him of the elements of the offence of aggravated robbery. He says that this deprived him of the opportunity to plead guilty to the offence he thereby lost the opportunity to obtain a credit for a guilty plea.
(b)Disparity: Mr Carruth says that his co-offender, his brother Teariki Kura, was given a lower sentence and the disparity between the sentence imposed on Mr Carruth and that imposed on his brother is such that there was a disparity justifying the intervention of this Court.
(c)The sentence was manifestly excessive: This ground is based on a number of factors, including the starting point being too high, an uplift for previous offending being wrong and excessive, no credit being given for remorse and the two month additional sentence arising from the review of community work, itself, manifestly excessive.

Facts

Judge MacAskill set out in his sentencing notes a detailed analysis of the facts. Although it is long, we reproduce it here because it helpfully sets out the Crown and defence cases, and describes the involvement of both Mr Carruth and his co-offender and brother, Mr Kura.[2] The Judge’s analysis was as follows:
[2]Mr Carruth has also used the surname Kura. His criminal history records his name as Kura and Carruth as an alias.
[7] The Crown’s case depended on the reliability of the complainant’s account, Mr Woodward’s account. The jury’s verdicts show in my opinion that it accepted that account. So I take the facts found by the jury to be these:
(a)As to the charge of demanding with menaces, on Monday 28 November…

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 Carruth v R

Details

AGLC: Carruth v R [2013] NZCA 296
Case: [2013] NZCA 296
Decision Date: 10 July 2013 at 11 am

CaseChat Overview and Summary

Nathan Brian Carruth appeals against his sentence for aggravated robbery and demanding with menaces, arguing that his lawyer failed to properly advise him of the elements of the offence, which deprived him of the opportunity to plead guilty and obtain a credit for a guilty plea. He further argues that the disparity between his sentence and that of his co-offender, his brother Teariki Kura, is so great that it justifies intervention by this Court. Finally, he contends that the sentence was manifestly excessive. The Court found that there was no evidential foundation for a conclusion that Mr Carruth would have pleaded guilty had he been properly advised of the elements of the offence. The Court also found that there was no disparity between the sentences imposed on Mr Carruth and Mr Kura that would justify intervention. Finally, the Court found that the sentence was manifestly excessive due to the imposition of an uplift for previous violent offending, which was not justified, and the addition of an additional two months to the sentence for the review of the community sentence, which was also not justified. The Court therefore allows the appeal and reduces the sentence to three years’ imprisonment.

Orders