Carpenter v R [2013] NZCA 395 (26 August 2013)

Last Updated: 4 September 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA96/2013 [2013] NZCA 395
BETWEEN	JAMES CARPENTER Appellant
AND	THE QUEEN Respondent

Hearing:	29 July 2013
Court:	French, Goddard and Simon France JJ
Counsel:	T W Fournier for Appellant S B Edwards and M L Wong for Respondent
Judgment:	26 August 2013 at 10.00 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal against sentence is allowed.

100. The minimum period of imprisonment of seven years is quashed and a minimum period of imprisonment of five years and six months is substituted. The sentence of 11 years’ imprisonment is confirmed.

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REASONS OF THE COURT

(Given by Goddard J)

Introduction

[1] The appellant pleaded guilty to charges of aggravated robbery, using a firearm against a law enforcement officer and unlawful possession of a firearm. He was sentenced in the District Court by Judge Farish to 11 years’ imprisonment on the charges of aggravated robbery and using a firearm, with a minimum non-parole period of seven years.^[1] On the charge of unlawful possession of a firearm he received a concurrent sentence of two years’ imprisonment. In addition, the appellant was given a first strike warning.

Issues on appeal

[2] Two grounds of appeal are advanced. The first is that the sentence of 11 years’ imprisonment is manifestly excessive. The second is that the minimum period of imprisonment is also manifestly excessive.

Background

[3] In the early hours of the morning of 2 October 2012, the appellant and an associate, who had both been drinking, went to a private home in suburban Christchurch. Their purpose was to recover money the appellant believed was owed to him from a drug deal that occurred a few days earlier. However, they mistakenly entered the wrong house. The appellant was armed with a shotgun loaded with five cartridges and his co-offender was armed with a knife. The two men entered the house by smashing the glass panes on the front door and then kicking the door open.
[4] The occupants of the house were a 26 year old woman and her two children, aged five and two. They had no knowledge of the appellant or his associate. The appellant took the woman’s cellphone and demanded $10,000 cash from her. She struggled with the appellant and during the course of their confrontation, the appellant deliberately discharged the shotgun twice, once into the floor of the hallway and once into the ceiling in the spare bedroom.
[5] The woman fled from the house to summon help and the appellant chased her into the street. His co-offender remained in the house, searching for items to steal. The appellant caught up with the woman and a further struggle ensued over the shotgun. The appellant threatened to kidnap the woman’s children if she did not return to the house. The woman managed to escape, and ran to nearby premises, where she called the police.
[6] The appellant, still armed with the shotgun, hid in a hedge a short distance from the property. His associate had departed the scene. When the police arrived, a constable and his dog tracked the appellant to his hiding place. The appellant emerged and pointed the shotgun at the constable, who deployed his dog which latched onto the appellant’s leg. This enabled the constable to take the appellant to the ground. Despite repeated demands that he release his weapon, the appellant continued to struggle for control of the weapon until he was subdued and handcuffed.
[7] At the time of the offending, the appellant had recently been released from a term of imprisonment and was subject to strict release conditions.

Victim impact

[8] The young woman victim sustained significant swelling and grazes to her feet and knees from running down the street to get help. However, as the Judge observed, the emotional harm she suffered is far more significant and long lasting. Her sleep has been badly disrupted and she suffers from nightmares and anxiety. It is likely to take a very long time for her to recover from the ordeal.
[9] There was also a significant impact on her two children, who were present while the appellant was struggling with their mother and discharging his shotgun inside the house. The entire episode must have been terrifying for the children.
[10] The police constable concerned has also been understandably affected by the violent and traumatic nature of his encounter with the appellant and there has been a flow-on effect for his family.

Sentencing decision

[11] The sentencing Judge adopted a starting point of 10 years’ imprisonment for the lead offence of aggravated robbery. No issue is taken with that. The Judge then conducted a separate assessment to determine the appropriate start point for the charge of using the firearm against a law enforcement officer. The Crown had submitted that, if the sentence were being calculated on a standalone basis, a sentence of four years’ imprisonment would be appropriate. The Judge took a different view however and determined that, on a standalone basis, a starting point of between six and seven years for presenting the firearm at the police officer would be appropriate and a sentence of four years’ imprisonment “entirely inadequate to denounce and deter”.^[2] Looking at the matter on a totality basis, the Judge considered an overall starting point of 14 years would appropriately reflect the seriousness of the offending as a whole, 10 years for the aggravated robbery and four years for presenting the firearm.
[12] The Judge then increased the sentence by six months to reflect the fact that the appellant was subject to release conditions at the time of this offending; and further increased the sentence by nine months on account of the appellant’s relevant prior convictions. This resulted in a sentence of 15 years and three months’ imprisonment. The Judge then deducted three months for remorse and 25 per cent for the appellant’s guilty pleas, arriving at an end sentence of 11 years’ imprisonment.^[3]
[13] The Judge then turned to consider what an appropriate minimum period of imprisonment would be. In relation to that the Judge found:^[4]

... I am satisfied that your eligibility for parole at one-third of that sentence is insufficient to denounce and deter and hold you accountable for the harm. There is also another issue and that is the protection of the public. You are seen at high risk of re-offending in a serious violent way and I think that is an appropriate assessment of your personality and your current risk factors. I am firmly of the view that your eligibility for parole at one-third is insufficient to denounce and deter and hold you accountable for the harm caused so I am imposing a minimum non-parole period of seven years.

[14] This amounted to a minimum period of imprisonment of 64 per cent of the total sentence imposed. Under s 86(4)(a) of the Sentencing Act 2002, the maximum minimum period of imprisonment that can be imposed must not exceed two thirds, or 66 per cent, of the full term of a sentence.

Was the sentence manifestly excessive?

[15] Mr Fournier did not dispute the starting point in relation to the lead charge of aggravated robbery. Rather, he argued that the start point of 14 years’ imprisonment was too high because the start point adopted for the separate offence of presenting a firearm was manifestly excessive. He suggested the appropriate starting point for that sentence was four years’ imprisonment, as the Crown had submitted, rather than a start point of between six and seven years as determined by the Judge. The overall result, he submitted, was a manifestly excessive end sentence.
[16] It is well established that, where sentences have been imposed for multiple offences, an appellate court will not “insist that the total sentence be arrived at in any particular way”.^[5] The sentence will be looked at in the round. The total sentence must represent the overall criminality of the offending and the offender. The ultimate enquiry is therefore whether the end sentence of 11 years was appropriate, rather than the means by which that end sentence was reached.^[6]
[17] In assessing overall culpability, regard must first be had to the number of aggravating features relevant to the charge of aggravated robbery that were present. These were:

• (a) The degree of planning and premeditation present. There was nothing spontaneous about the episode of offending, as reflected in the fact the appellant went to a separate address to obtain a shotgun and ammunition before travelling to the victim’s residence.
• (b) The targeted residence was a family home.
• (c) The weapon was a loaded shotgun, an intimidating and potentially very dangerous weapon, which the appellant brandished in a threatening way and fired twice inside the house.
• (d) The victims in the house were extremely vulnerable.
• (e) The offending has had a severe impact on all of the victims, including on the police officer, who tackled the appellant at great risk to his own personal safety.

[18] In relation to the separate charge of presenting a firearm at the police officer, we accept the Crown’s submission that the appellant’s willingness to engage with police on a suburban street rather than flee and his persistent struggle to retain control of his weapon despite repeated commands to release it are serious aggravating factors. As the Judge rightly noted, the appellant could easily have killed the police officer or his dog.
[19] In light of the overall seriousness of this offending, and considering the appellant’s personal circumstances, which were taken into account, the end sentence of 11 years’ imprisonment was within the acceptable range of sentences open to the Judge.

Was the minimum period of imprisonment excessive?

[20] Mr Fournier submitted that the minimum period of imprisonment imposed was not justified.
[21] A minimum period of imprisonment may be imposed under s 86 of the Sentencing Act (the Act) if the usual non-parole period would be insufficient for all or any of the four purposes in s 86(2). These are: to hold the offender accountable for the harm done to the victim and the community; to denounce the conduct in which the offender was engaged; to deter the offender or others from similar offending; and to protect the community from the offender.
[22] It is well established that a sentencing judge is required to employ a two–stage approach when imposing a minimum period of imprisonment.^[7] The first stage involves the setting of a nominal maximum period of imprisonment. The second stage requires the Judge to address two questions. The first is whether a minimum period of imprisonment should be imposed and if so, what length it should be. The second stage requires the Judge to reconsider all of the sentencing principles in ss 7, 8 and 9 of the Act. That involves a consideration of the circumstances of the offending as well as of the personal circumstances of the offender.
[23] In the present case, the Judge did not state a basis for imposing a nearly two–thirds minimum period of imprisonment. Nor did she conduct a separate exercise to determine whether a minimum period of imprisonment was required in the circumstances of the case and, if so, for what term. In particular, the Judge did not consider the personal circumstances of the appellant in the context of imposing the minimum period of imprisonment.
[24] However, when the necessary exercise is conducted, there is no question that a minimum period of imprisonment was merited in this case. The appellant discharged a firearm within a dwelling house and then, knowing the police were on their way, remained in the vicinity with the gun still loaded. Overlaying these serious features is the further factor that the offending occurred while the appellant was subject to strict release conditions.
[25] In relation to the appropriate length of the minimum period of imprisonment, however, we differ from the assessment of the appellant as being at high risk of reoffending in a serious violent way. The Judge’s view of this was based on an opinion expressed by the probation officer who wrote the pre-sentence report. The probation officer’s opinion was based on the appellant’s past offending and on a somewhat speculative view of his motivation for this offending. We note that the appellant’s prior record, while lengthy, involved offending on a far lesser scale and of a less serious nature than here. Accordingly, we do not place the same weight on this factor as the sentencing Judge.
[26] Turning to the appellant’s personal circumstances, which the sentencing Judge did not consider when imposing the minimum period of imprisonment, it is significant that the appellant pleaded guilty at an early stage and has expressed willingness to engage in a restorative justice programme.
[27] Given these circumstances, a minimum period of imprisonment just short of the maximum period allowable was not warranted.
[28] In conclusion, we are satisfied the minimum period of imprisonment imposed of 64 per cent should be adjusted downwards to a minimum period of imprisonment of 50 per cent.

Result

[29] The appeal is out of time by three days. Given our view on the merits and the short delay, the application for an extension of time is granted.
[30] The appeal against sentence is allowed.
[31] The minimum period of imprisonment of seven years is quashed and a minimum period of imprisonment of five years and six months is substituted. The sentence of 11 years’ imprisonment is confirmed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] New Zealand Police v Carpenter DC Christchurch CRI-2012-009-12369, 18 January 2013.

^[2] At [27].

^[3] This is a miscalculation. The correct sentence, based on the Judge’s reasoning, is 11 years and three months’ imprisonment. Fifteen years is 180 months. 180 months less 25 per cent for the early guilty plea is 135 months. 135 months / 12 = 11.25 years, or 11 years and three months.

^[4] At [29].

^[5] Hughes v R [2012] NZCA 388 at [27].

^[6] Skipper v R [2011] NZCA 250 at [28].

^[7] R v Gordon [2009] NZCA 145.