Carrington v Police [2016] NZHC 2351 (4 October 2016)

Last Updated: 27 October 2016

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-063-3631 [2016] NZHC 2351

BETWEEN	STORM CARRINGTON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	4 October 2016
Appearances:	L Te Kani for Appellant M S Jenkins for Respondent
Judgment:	4 October 2016

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

Solicitors:

Crown Solicitor, Rotorua

CARRINGTON v NEW ZEALAND POLICE [2016] NZHC 2351 [4 October 2016]

[1] Mr Carrington pleaded guilty in the District Court to charges of stealing a firearm, unlawfully being in possession of that firearm and discharging the firearm within a dwellinghouse so as to endanger persons or property. He faced an additional charge of intentionally damaging police property. This related to events after Mr Carrington was arrested on the other charges and proceeded to spread effluent around the cell in which he was housed at the police station.

[2] On 6 May 2016, Judge Roberts sentenced Mr Carrington to an effective term of 18 months imprisonment.¹ He appeals against sentence on the basis that the Judge erred and ought to have imposed a community-based sentence.

The facts

[3] The firearms charges were laid as a result of an incident that occurred on

11 December 2015. At that time Mr Carrington was staying with an associate. He went through his associate’s house until he found the keys to a firearm cabinet. These were stored within another cupboard within the address. He then opened the firearms cabinet and removed a .243 Remington rifle together with some ammunition.

[4] Mr Carrington then proceeded to another address to visit a woman who was known to him. This person noticed he was carrying a bag that had the end of a chainsaw sticking out of it. When she enquired as to why he was carrying the chainsaw, he said words to the effect that “this is the real thing”. He then produced the rifle that he had taken from the address where he had been staying. His associate then turned around and the firearm discharged accidentally. The bullet passed through a refrigerator and exited into the exterior wall of the house where it was stopped by brickwork. Mr Carrington apologised to the person whose house he as visiting, and told her he had not known the rifle was loaded. He then left the address.

[5] The following day, the police stopped Mr Carrington whilst he was travelling in a motor vehicle. They found the stolen firearm in the boot of the vehicle. When

¹ New Zealand Police v Carrington [2016] NZDC 7983.

they searched Mr Carrington, they found a magazine with one live round in it. They found a further spent cartridge in his pocket. As already observed, Mr Carrington subsequently spread effluent around the walls of the cell in which the police placed him at the police station.

The Judge’s decision

[6] The Judge took a starting point of two years imprisonment on all charges. He then allowed a discount of six months, or 25 per cent, to reflect early guilty pleas. This produced the end sentence of 18 months imprisonment.

[7] In selecting that sentence the Judge noted that Mr Carrington had failed to carry out a sentence of 80 hours community work imposed on 18 August 2015. Of that sentence, he had completed just 45 hours in the nine month period between August 2015 and May 2016. In addition, Mr Carrington had failed to attend an interview with Community Corrections, and attempts to contact him by telephone were not successful. This led the Judge to observe:

[14] The 80 hours’ community work sentence was imposed 18 August. You have already been convicted of breach. You have completed but 45 ¼ hours. There are 34 ¾ hours outstanding. The report writer notes you have displayed a lack of motivation to comply with community-based sanctions. That report was completed without input directly from you but regrettably that says it all. You could not even bring yourself to attend an interview. That attitude is reflected too in your woeful application to community work. You might have created an opportunity to remain within your community had you applied yourself. I intend to imprison you.

Grounds of appeal

[8] Mr Te Kani advances several grounds of appeal on Mr Carrington’s behalf. These are all designed to persuade the Court to quash the sentence of imprisonment and impose a sentence of home detention. The difficulty with this is that the Judge did not have a home detention index attached to the pre-sentence report prepared in anticipation of sentencing. As a result it is not now known whether a home detention address is available to Mr Carrington. Further enquiries would need to be made about this, and the matter would need to be remitted to the District Court for final resolution. This effectively rules out home detention as an alternative form of sentence in the present case.

[9] Faced with that issue, Mr Te Kani submits that the Judge ought to have imposed a sentence of intensive supervision. This was in fact the recommendation contained in the pre-sentence report notwithstanding the fact that Mr Carrington had not displayed a willingness to complete the earlier sentence of community work.

[10] Mr Te Kani points out that Mr Carrington is just 19 years of age and has never before served a sentence of imprisonment. In addition, he has now served five months of his sentence. This is the equivalent of a ten month sentence of imprisonment. Furthermore, as the Judge acknowledged, Mr Carrington faces issues as a result of a head injury that he received in 2013 when he was 16 years of age. This occurred after he appears to have been lying on a road and was struck by a motor vehicle. The head injury has had a lasting effect, and may well be part of the underlying problem in leading him to failing to keep appointments and complete the sentence of community work.

Decision

[11] I have some sympathy with the approach that the Judge took. The fact that Mr Carrington had not completed the sentence of community work was a matter of significance, as was the fact that he had failed to attend the interview with the writer of the pre-sentence report. Nevertheless, I consider the points raised by Mr Te Kani have merit.

[12] Mr Carrington is a young man and does not have a lengthy list of previous convictions. The only conviction of any real concern is a previous conviction in

2015 for being in unlawful possession of a firearm in December 2014. On that charge he was ordered to come up for sentence if called upon to do so within nine months. Given the sentence imposed, I take the view that this offending must have been towards the bottom end of the scale.

[13] I consider that the interests of the community are likely to be advanced considerably by a sentence that requires Mr Carrington to engage meaningfully with the authorities so that they can assist him to come to grips with the types of issues outlined in the psychiatric report prepared prior to sentencing. Intensive supervision would serve that purpose.

[14] The Judge imposed release conditions that required Mr Carrington to undergo a psychological assessment and to attend any courses or programmes recommended by the Parole Board. I do not consider that those conditions would provide the same protection for the community in the future that a sentence of intensive supervision would provide. For that reason I consider that the alternative sentence of intensive supervision is one that is ultimately in the best interests of the community, notwithstanding Mr Carrington’s earlier lack of engagement with sentences imposed by the Court.

[15] Mr Carrington needs to know, however, that he is now the master of his own destiny. If he fails to engage with those administering the programme of intensive supervision, he can expect to be charged with breaching those terms. In that event the Court will be left with little option but to return him to prison.

Result

[16] The appeal is allowed. The sentence of 18 months imprisonment is quashed. In its place, I sentence Mr Carrington to 12 months intensive supervision.

Lang J