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,…

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 [2024] NZHC 1056
Case: [2024] NZHC 1056
Decision Date: 2 May 2024

CaseChat Overview and Summary

Christopher George Carter appealed against the two-year imprisonment sentence imposed by the District Court, which stemmed from his convictions for four counts of theft by a person in a special relationship. The appeal centred on an alleged error in the calculation of the sentence, specifically the failure to account for the period of time the appellant had already served on home detention prior to his resentencing. The appellant argued that the sentence should reflect the Judge's intention to reduce the term of imprisonment by the time already served, resulting in his release on 15 August 2024.

The court considered the legal principles governing appeals against sentence, particularly the requirement to correct any error in the sentence imposed and to ensure that the sentencing judge's intentions are carried out. The court also examined the relevant provisions of the Sentencing Act 2002, which dictate that when substituting a sentence of home detention with imprisonment, the court must take into account the portion of the original sentence that remains unserved.

The appellant's counsel submitted that the sentence should be adjusted to reflect the Judge's intended sentence by taking into account the period of home detention served. The Crown agreed with the appellant's submissions, acknowledging that the Judge had intended to reduce the sentence by the time already served but had failed to incorporate this into the resentencing decision. The court found that the Judge's intention was for the imprisonment term to be calculated from the imposition of the original home detention sentence, leading to a release date of 15 August 2024. This would result in an 18-month imprisonment term, rather than the 24 months imposed.

The court allowed the appeal and substituted the two-year imprisonment sentence for an 18-month term of imprisonment. The court ordered that the appellant be released on 15 August 2024, aligning with the Judge's intended sentence.

Orders