| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA113/2023 [2023] NZCA 454 |
| BETWEEN | MATTHEW ALEXANDER CARTER |
| AND | THE KING |
| Hearing: | 23 August 2023 |
Court: | Wylie, Ellis and van Bohemen JJ |
Counsel: | S D Withers and V I Tava for Appellant |
Judgment: | 18 September 2023 at 12 pm |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by van Bohemen J)
Mr Carter appeals the sentence of 23 months’ imprisonment imposed by Judge Lummis in the District Court,[1] after he was found guilty on a representative charge of blackmail,[2] and pleaded guilty to cannabis cultivation,[3] and to possession of the Class B drug, gamma-butyrolactone (fantasy).[4]
Relevant background
[1]R v Carter [2023] NZDC 3580 [judgment under appeal].
[2]Crimes Act 1961, ss 237 and 238 (maximum penalty 14 years’ imprisonment).
[3]Misuse of Drugs Act 1975, s 9(1) (maximum penalty seven years’ imprisonment).
[4]Section s 7(1)(a) and (2) (maximum penalty three months’ imprisonment and/or a fine not exceeding $500).
In 2020, Mr Carter had an intimate relationship with a woman, NH. During the relationship, Mr Carter recorded two videos of NH and himself engaged in sexual activity.[5] NH consented to the recordings in the belief they would be kept private between the two of them.
[5]It appears the District Court automatically suppressed the name of the complainant. The District Court has been unable to locate this order. Presumably, this order was made under s 203 of the Criminal Procedure Act 2011. It is arguable this was an error. However, the point was not argued before us and we take it no further.
After the relationship ended, Mr Carter demanded that NH pay him sums of money for debts he claimed he was owed. His position at trial was that these were legitimate debts, comprised of legal fees, for which Mr Carter had borrowed money from his mother, and money owed for cannabis. Mr Carter considered that NH was responsible for the legal fees because she had introduced him to the lawyer. NH denied owing any money to Mr Carter.
Over a period of three to four months Mr Carter made demands of NH and her new partner to pay the alleged debts. He also sent NH a text message alluding to the possibility that compromising photographs might be emailed to her employer. NH’s partner paid Mr Carter $1,000 in the hope that would end the matter. It did not.
On four occasions in January and February 2021, Mr Carter sent explicit images of NH to her, her partner, and some of her work colleagues. The images, which were taken from the videos, showed NH naked. Some showed NH engaged in explicit sexual activity with Mr Carter. The images were accompanied with messages demanding that NH pay her bills and warned that things would get worse if she did not. One message threatened to place life-sized images…
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- AGLC
- Carter v The King [2023] NZCA 454
- Case
- [2023] NZCA 454
- Decision Date
CaseChat Overview and Summary
The key legal issues involved whether the District Court correctly identified the starting point for sentencing, the appropriate uplift for the drug-related charges, and whether a discount for time spent on electronically monitored bail was adequate. Additionally, the court had to assess whether the District Court erred in not imposing a sentence of home detention instead of imprisonment.
The Court of Appeal found no material error in the District Court's starting point for sentencing, which was two and a half years for the blackmail charge. It considered the high degree of premeditation, the breach of trust, the persistence of demands, the emotional distress caused, and the distribution of explicit images as significant aggravating factors. The court also upheld the two-month uplift for the drug-related charges, noting the significant number of cannabis plants found. The court found the 36% discount for the time spent on electronically monitored bail to be appropriate, given Carter's multiple breaches. The court further concluded that sentencing Carter to home detention would not have been appropriate, considering his history of non-compliance with bail conditions and the risk of breaching future community-based sentences.
The appeal against sentence was dismissed, affirming the District Court's decision.
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