Legal Research
Cases
Carter v The King

Carter v The King

Case [2023] NZCA 454 18 September 2023

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA113/2023
[2023] NZCA 454

BETWEEN	MATTHEW ALEXANDER CARTER Appellant
AND	THE KING Respondent

Hearing:	23 August 2023
Court:	Wylie, Ellis and van Bohemen JJ
Counsel:	S D Withers and V I Tava for Appellant R M A McCoubrey and R M Gibbs for Respondent
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…

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 Carter v The King

Details

AGLC: Carter v The King [2023] NZCA 454
Case: [2023] NZCA 454
Decision Date: 18 September 2023 at 12 pm

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Matthew Alexander Carter appealed against his sentence for blackmail and drug-related charges, imposed after his conviction in the District Court. Carter's appeal centered on the alleged errors in the starting point for sentencing, the discount for time spent on electronically monitored bail, and the refusal to commute his sentence to home detention. The court was tasked with determining whether the District Court's sentencing decision was appropriate, considering the aggravating and mitigating factors of Carter's case.

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.

Orders