Carter v The King

[2024] NZHC 1056

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2024-443-12

[2024] NZHC 1056

BETWEEN

CHRISTOPHER GEORGE CARTER

Appellant

AND

THE KING

Respondent

Hearing:	2 May 2024
Appearances:	J C Hannam for Appellant H Bullock for Respondent
Judgment:	2 May 2024

JUDGMENT OF GRICE J

(Sentence Appeal)

Introduction

[1]        This is an appeal brought by Mr Christopher Carter against the sentence of two years imprisonment imposed by the District Court.1 Mr Carter was sentenced for convictions on four charges of theft by a person in a special relationship.2

[2]        The appeal is brought on the ground that an error occurred in the calculation of the sentence, as the term of imprisonment should be less the period of time that the appellant had already spent on home detention prior to resentencing, which was the express intention of the Court. The appellant submits that the sentence imposed should

1      R v Carter [2023] NZDC 28809 [the decision on appeal].

2      Crimes Act 1961, ss 220(1)(a), 220(2), and 223(a).

CARTER v R [2024] NZHC 1056 [2 May 2024]

be adjusted so that he is released on 15 August 2024.3 The starting point and discounts applied are not at issue.

Leave to appeal out of time

[3]        Mr Carter seeks leave to appeal out of time. Mr Carter initially sought to challenge the sentence by way of rehearing under the Criminal Procedure Act 2011. However, the Court could not hear the sentencing as a rehearing due to the maximum penalty for the offending. The appeal is therefore now out of time. The appellant submits that it is in the interests of justice to hear the matter given that the intention of the Judge was not correctly carried out by the sentence imposed.

[4]        The extension is not opposed by the Crown. I grant leave to hear the appeal out of time as both parties agree that the appeal should be allowed and it is in the interests of justice to ensure that the Judge’s intended sentence is imposed.

Background

[5]        On 15 August 2023, the appellant was sentenced to twelve months home detention with six months post detention conditions and reparation of $290,000.4

[6]        On 29 August 2023, the appellant applied for a rehearing as the home detention sentence was “not working out”.5

[7]On 7 September 2023, the Court suspended the reparation payments.6

[8]        On 9 November 2023, the sentencing Judge remanded the appellant in custody.7

3      I note that there is some variation in the appellant’s submissions and notice of appeal as to the release date sought – 15 August 2024 is referred to in the notice of appeal, but 14 August 2024 is referenced at the end of his written submissions. The appellant also references both 279 and 280 days as the correct length of sentence to be imposed.

4      R v Carter [2023] NZDC 17538.

5      The decision on appeal, above n 1, at [2].

6      R v Carter DC New Plymouth CRI-2020-043-1191, 7 September 2023.

7      Department of Corrections v Carter DC New Plymouth CRI-2020-043-1191, 9 November 2023.

[9]        On 19 December 2023, the appellant was resentenced to two years’ imprisonment with six months release conditions and reparation of $290,000.

[10]In the Judge’s sentencing notes, he stated:

[38]      I add a footnote, Mr Carter. I am advised by probation that the time you spent remanded in custody up until today, as well as the time you spent on home detention, will be included in the calculations that will see you serving less than the two years that I have imposed for the offending. Quite simply, they are calculations Corrections make.

[39]      Perhaps it is indicative of the nature of the interaction to date, but counsel has asked for leave to bring matters back if that submission from the probation officer is not correct. Leave is granted.

Approach on appeal and relevant law

[11]      Appeals against sentence are governed by s 250 of the Criminal Procedure Act, which relevantly provides:

…

(2)The first appeal court must allow the appeal if satisfied that —

(a)     for any reason, there is an error in the sentence imposed on conviction; and

(b)     a different sentence should be imposed.

(3)The first appeal court must dismiss the appeal in any other case.

[12]      An appeal against sentence is an appeal against the exercise of a discretion. The focus in a sentence appeal is generally on the correctness of the end result, rather than the process by which the sentence was reached.8 The Court of Appeal has noted that where an error is in the nature of an explicit arithmetical error, it is expected that “the appeal court will impose the corrected sentence, giving effect to the sentencing judge’s intentions”.9

[13]      Under s 80F(4)(d) of the Sentencing Act 2002, an offender subject to a sentence of home detention may apply for an order to cancel the sentence and substitute any other sentence that could have been imposed at the time of conviction. When

8      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

9      Tutakangahau, above n 8, at [36].

determining a substitute sentence in these circumstances, the Court must take into account the portion of the original sentence that remains unserved at the time of the order.10

[14]      Section 86 of the Parole Act 2002 specifies that the release date of a short-term sentence is the date on which the offender who is subject to the sentence has served half of it. A “short-term sentence” is defined as a sentence of imprisonment that is of 24 months or less.11

Submissions

For the appellant

[15]      Mr Hannam, for the appellant, submits that the sentence should be adjusted to reflect the sentence which the Judge intended to impose, by taking into account the period  of  home   detention   served   by   Mr   Carter   from   15  August   2023   to 9 November 2023. It is noted that the Probation Service at sentencing made assurances that the length of imprisonment would incorporate the time Mr Carter spent on remand and in home detention. However, no such accommodation was made in the calculations, and a release date of 9 November 2024 was arrived at.

[16]      Mr Hannam notes that given Mr Carter’s current sentence of imprisonment is a short-term sentence, he would serve 12 months of that sentence before being released without appearing before the New Zealand Parole Board.

[17]      Mr Hannam contends that it was common ground that the prison sentence was to be reduced by the period of home detention served (15 August 2023 to 9 November 2023) and the time on remand in custody (9 November 2023 to 21 December 2023).

[18]      It is submitted that the appropriate remedy for this error is that Mr Carter be re-sentenced to a term of  imprisonment  of  279  days,  so  that  he  is  released  on 14 August 2024, as the Judge intended.

10     Sentencing Act 2002, s 80G.

11     Parole Act 2002, s 4.

For the Crown

[19]      The Crown accepts the appellant’s submissions that the appeal should be allowed. Ms Bullock, for the Crown, submits that the Judge’s resentencing notes show that the Judge had clearly turned his mind to the portion of the home detention sentence the appellant had completed, but did not expressly turn his mind to what had not been completed as required under s 80G(2). The Judge relied on a submission from Corrections that it would take the portion of the time the appellant had served on home detention into account in determining the appellant’s release date. Leave was granted to bring the matter back to court if this was incorrect. Ms Bullock submits that the correct sentence is one of 18 months’ imprisonment, taking into account the time already served on home detention.

Analysis

[20]      Under s 80G(2) of the Sentencing Act, the Judge was required to take into account the portion of the original sentence that remained unserved at the time of the order. The commentary on s 80G in Adams on Criminal Law provides:12

Where a sentence is substituted for a sentence of home detention, the substituted sentence should take account of and be broadly equivalent to the portion of the home detention that remains unserved. … An adjustment to the length of the term of imprisonment imposed will be necessary to ensure the offender is released from prison at the time when he or she would have been released from the sentence of home detention.13 Taking into account the statutory release date of a short sentence of imprisonment, every month of home detention served is to be regarded as equivalent to two months’ imprisonment.14 A mathematical approach is not necessary, but the substituted sentence must have some proportionality with the time remaining to be served, though a modicum of increase may be appropriate.15

[21]       At the time of the resentencing, the appellant had served almost three months of the 12 month home detention sentence. A balance of nine months’ home detention remained to be served, which is the equivalent of 18 months’ imprisonment. Thus, an

12     Adams on Criminal Law – Sentencing (online looseleaf ed, Brookers) at [SA80G.01] (footnotes added).

13     See, for example, R v Piper HC Auckland CRI-2007-004-798, 27 February 2008.

14     R v Matthews [2013] NZHC 2674.

15     Hough v Police [2017] NZHC 93; R v Nelson-Bell [2023] NZHC 799; and Bartlett v Police [2023] NZHC 3624.

18 month sentence would have been appropriate, rather than the 24 months’ imposed by the Judge.

[22]      It is evident from the comments in his sentencing notes that the Judge intended the home detention period equivalent to be taken into account, but he did so relying on the Corrections information that this would occur. However, this ought to have been incorporated into the sentence given by the Judge. The Judge’s intention was for the two years of imprisonment to be counted from the time the original sentence of 12 months home detention was  imposed,  so  that  he  would  still  be  released  on 15 August 2024 (accounting for the fact that only half the term would be served given that it is a short-term sentence). This would equate to an 18 month sentence at the time of resentencing.

Conclusion

[23]      For the reasons above, I allow the appeal and the sentence of 24 months’ imprisonment is substituted for an 18 month term of imprisonment.

Grice J

Solicitors:

Hannam & Co Lawyers, New Plymouth C & M Legal, New Plymouth