Carter v Police

[2020] NZHC 1708

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2020-442-3

[2020] NZHC 1708

BETWEEN

TIMOTHY CARTER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	15 July 2020
Counsel:	S J Zindel and P A S Morrison for Appellant A R Goodison for Respondent
Judgment:	15 July 2020

JUDGMENT OF SIMON FRANCE J

[1]    On 4 February Mr Carter pleaded guilty to five charges, all stemming from a grievance over a workplace dispute. He has served his sentence but appeals one of the five convictions on the basis that he did not intend to plead guilty to it. Affidavits were filed by Mr Carter and by his former lawyer. Neither was required for cross- examination.

Facts

[2]    Mr Carter was annoyed with his employer. A meeting ended in a heated state. Mr Carter left the premises and  when  he  sought  to  return,  access  was  denied. Mr Carter headbutted the person blocking him. Thereafter, on different occasions, he sent abusive text messages, gestured to throw a rock at a vehicle owned by the business, and left threatening material at an employee’s home. The assault and the three subsequent acts were the subject of four separate charges all laid on 16 January

CARTER v NEW ZEALAND POLICE [2020] NZHC 1708 [15 July 2020]

2020. There was provided a single summary of facts covering all four charges. The events were said to have occurred between 13 and 15 January 2020.

[3]    The charges were called on 4 February 2020. On that day a fifth charge was laid. The charge was that Mr Carter:

threatened to shoot and stab the occupants at [his workplace].

[4]    The offence date was between 1 September 2019 and 31 October 2019, thereby placing it as occurring between three and five months before the batch of four charges. The charging document for this fifth offence alleged an offence against s 307 of the Crimes Act 1961.

[5]    There was evident confusion on the callover date of 4 February. Mr Carter’s lawyer said there were four charges (suggesting he was unaware of this latest charge), the Judge said correctly there were five, and the prosecutor said he had only one (presumably this latest extra charge). Eventually the five charges were identified and an accurate summary of what each involved was stated to the Court. Mr Carter’s lawyer indicated guilty pleas to all charges. The pre-sentence report correctly recorded five offences. The content does not specifically refer to the individual charges so provides no insight into what Mr Carter knew about the fifth charge.

[6]    The sentencing notes describe the contents of this charge in the terms contained in the relevant summary of facts.

The appeal

[7]    There are in effect two grounds of appeal. The first is that Mr Carter did not intend to plead guilty to the fifth charge, and has always disputed its correctness. The second concerns the nature of the charge.

[8]    I consider the latter resolves the appeal and address only that. The charge, as noted, alleged Mr Carter:

threatened to shoot and stab the occupants …

It is charged as a breach of s 307 of the Crimes Act 1961, and that is the conviction entered. Section 307 reads:

307 Threatening to destroy property

(1)Every one is liable to imprisonment for a term not exceeding 3 years who sends or causes to be received, knowing the contents thereof, any letter or writing threatening to destroy or damage any property, or to destroy or injure any animal.

(2)Nothing shall be an offence against subsection (1) unless it is done without lawful justification or excuse, and without claim of right.

[9]    It is plainly the wrong section. Mr Carter’s threats were against people, as the particulars state. The most obvious alternative, s 306 of the Act, has a much higher maximum penalty. The power of an appeal court to substitute a different conviction where the original conviction resulted from a guilty plea requires the consent of the defendant.1 Consent is not forthcoming here. There are much lesser charges which would fit the facts but the respondent has not sought to have them substituted, something which would again require the appellant’s consent.

[10]   The situation falls within the third of the R v Le Page categories – the defendant could not be guilty of the offence charged.2

[11]   The appeal against the conviction for an offence against s 307 of the Crimes Act 1961 is allowed and the conviction quashed. The sentence having been served, it is not appropriate to make any other orders.

Simon France J

Solicitors:

Zindels, Nelson for Appellant

Crown Solicitor’s Office, Nelson for Respondent

1      Criminal Procedure Act 2011, s 234(4).

2      R v Le Page [2005] 2 NZLR 245 at [18].