CARPENTER and TEMPLE v NEW ZEALAND POLICE [2021] NZHC 3545

CARPENTER and TEMPLE v NEW ZEALAND POLICE [2021] NZHC 3545 [17 December 2021]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2021-441-27[2021] NZHC 3545BETWEEN GRANT BRENDON CARPENTERAppellantAND NEW ZEALAND POLICERespondentCRI-2021-441-28BETWEEN CATHERINE ELIZABETH TEMPLEAppellantAND NEW ZEALAND POLICERespondentHearing: 15 December 2021Appearances: A McPherson for AppellantJ D Bridgman for RespondentJudgment: 17 December 2021JUDGMENT OF ISAC J[Sentence appeal]Introduction[1] Ms Temple and Mr Carpenter are partners in, and out, of crime. They appealsentences imposed by Judge Collins on 31 August 2021.1[2] Mr Carpenter was sentenced to 12 months' imprisonment on six charges:1 New Zealand Police v Carpenter [2021] NZDC 17439; New Zealand Police v Temple [2021]NZDC 17429.(a) the lead charge of receiving a Toyota Hilux valued at $15,000;(b) two charges of failing to answer bail;(c) a second charge of receiving items worth less than $500;(d) possession of methamphetamine; and(e) a further charge of possession of codeine.[3] Ms Temple was sentenced to six months' home detention on five charges:(a) a charge of receiving the Toyota Hilux, on which Mr Carpenter was aco-defendant;(b) possession of methamphetamine(c) failing to answer bail;(d) a further charge of receiving;(e) theft.[4] Ms Temple received home detention while Mr Carpenter was imprisonedbecause at the time Mr Carpenter did not have a suitable address. He was granted leaveto apply for home detention, however, and was resentenced on 10 November 2021 totwo months' home detention. That sentence took into account the time he had spent incustody since 31 August.[5] The grounds of appeal advanced by both appellants are broadly the same:(a) while the starting point for the lead offence was within range, theadditional uplift for the balance offending was too high, and the endpoint sentence manifestly excessive; and(b) a sentence of intensive supervision and community detention, asrecommended by Corrections, were the least restrictive outcome calledfor in the circumstances.The offending[6] On 27 January 2021, Ms Temple stole five items from the Waipukurau hospiceshop. The total value was $60. Later that day, both appellants were located in a vehicle.Mr Carpenter was in possession of a "large number" of codeine pills not prescribed tohim. Both appellants were in possession of 0.16 grams of methamphetamine, andvarious licenses and credit cards stolen from eight victims between 31 March 2019and 5 January 2021.[7] The lead charge of receiving related to a Toyota Hilux valued at $15,000. Thevehicle was stolen from its owner on 9 May 2021. On 27 June 2021, the appellantswere found in possession of the vehicle.[8] Both appellants were charged jointly and appeared for sentence together on thesame day in respect of the two charges of receiving, possession of methamphetamine,and failure to answer bail on 28 April 2021. I adopt the helpful table provided bycounsel for the respondent, Mr Bridgman, in submissions which identifies the chargesthat were joint and several:Charge Appellant Maximum penaltyReceiving (over$1,000Both 7 years' imprisonmentReceiving (under$500) (representativeBoth 3 months' imprisonmentPossession ofmethamphetamineBoth 6 months' imprisonmentPossession of codeine Mr Carpenter only 3 months' imprisonmentTheft (under $500) Ms Temple only 3 months' imprisonmentFailure to answer bail 23 March 2021 – Carpenter only__________________________28 April 2021 - both1 year's imprisonmentSentencing decisionMr Carpenter[9] Judge Collins identified the charge of receiving the motor vehicle as the leadoffence. Having outlined the relevant facts the Judge observed that Mr Carpenter hada significant number of previous convictions, although found that they did not warranta discrete uplift from the starting point.2[10] The Judge adopted a starting point on the receiving charge of 12 months.3 Hethen applied an uplift for the balance of Mr Carpenter's five other charges of fourmonths. That lead to an adjusted starting point of 16 months' imprisonment.4[11] A four month discount was then applied to reflect the appellant's guilty plea,arriving at an end sentence of 12 months' imprisonment. As noted, home detentionwas not available due to the lack of a suitable address. Nevertheless, leave wasreserved under s 80(I) of the Sentencing Act 2002 to substitute a sentence ofimprisonment for one of home detention should a suitable address become available.5And, as I have noted, that came to pass; in November 2021 Mr Carpenter wasresentenced to two months' home detention.Ms Temple[12] Once again Judge Collins identified the lead charge of receiving the ToyotaHilux and adopted a starting point of 12 months' imprisonment.6 He then applied anuplift of three months' imprisonment to reflect the balance of Ms Temple's remainingfour charges bringing up an adjusted starting point of 15 months imprisonment.7 TheJudge then allowed a three month credit for the appellant's guilty pleas bringing up anend sentence of 12 months' imprisonment.8 As Ms Temple had a suitable address at2 New Zealand Police v Carpenter, above n 1, at [6].3 At [9], citing Drake v P [2015] NZHC 2252; Proctor v P [2018] NZHC 763; Ellis v R [2012]NZCA 513.4 At [10].5 At [12].6 New Zealand Police v Temple, above n 1.7 At [5].8 At [6].which to serve a sentence of home detention, she was sentenced to six months' homedetention accordingly.9[13] In something of a twist, while it seems clear the Judge intended to ensure thatthere was complete parity between the two defendants in terms of both starting andend point sentences, the result of Mr Carpenter's re-sentencing in November meanshe will be released from his sentence of home detention in January 2022, whileMs Temple will remain subject to her sentence for an additional month.DiscussionUplift for balance offending too high?[14] On behalf of the appellants, Ms McPherson argued that the four month upliftapplied by the Judge to reflect the balance of Mr Carpenter's five convictions wasexcessive. She argued that the second receiving charge could warrant one month, andthat the remaining three charges would only warrant a further month. Ms McPhersonargued that anything above a three month uplift to the starting point would result in amanifestly excessive sentence. A similar argument, with less force, was advanced onbehalf of Ms Temple, who received a three month uplift.[15] The difficulty with the appellants' submission is that it starts from anacceptance that at least a two-month uplift was warranted. Standing back, an overalladjusted starting point one or, at most, two months above the appellants' acceptedrange could not in my view result in a manifestly excessive end-point sentence. Anyinterference based on such a small margin would only ever be tinkering on appeal.[16] More fundamentally, however, the uplift of four months was, in my view,lenient. The maximum penalties for the remaining charges Mr Carpenter faced total3 years' imprisonment. Against the collective maximum, a sentence of four monthscould not be described as unwarranted or excessive. The receiving charge in particularwas representative, involving eight separate thefts and victims.9 At [6].[17] The same basic difficulty confronts Ms Temple's appeal on this ground as well.It is probable the judge adopted a lower uplift of three months given Ms Temple didnot face a second charge of breach of bail.Should a community base sentence be imposed?[18] Ms McPherson submitted that the pre-sentence report writer'srecommendation of intensive supervision and community work were sufficient to meetthe need for denunciation and deterrence, while providing a genuine prospect ofrehabilitation. It was the least restrictive outcome called for in counsel's submission.[19] But having accepted that a 12-month sentence of imprisonment wasappropriate on the lead charge, the foundation for this ground of appeal falls away. Acommunity-based sentence was never realistic despite the recommendation. Andwhile imprisonment was the appropriate sentence type, both appellants have beenadmitted to home detention. So, there is nothing in this ground of appeal.Credit for time spent in custody?[20] A final ground of appeal advanced on behalf of Ms Temple relates to the timeshe spent on remand before sentence.[21] Ms Temple spent 22 days in custody. Ms McPherson submits that the Judgefailed to give her any credit when setting her sentence of home detention to reflecttime served.[22] While any discount for pre-sentence detention is a matter of discretion and nota one-for-one calculation,10 I accept that Ms Temple ought to receive a credit reflectingher time in custody. It is clear the Judge intended to treat the two defendants alike forsentencing purposes. But as Ms McPherson pointed out, the effect of Mr Carpenter'sre-sentencing in November, which took into account the time he spent in custody, hasresulted in a disparity in the duration of the sentence imposed on both appellants;Ms Temple will remain subject to a sentence of home detention for over a monthlonger than Mr Carpenter.10 Kidman v R [2011] NZCA 62 at [15].[23] For this reason only, I consider there has been an error of approach, and thatthe impact of it is manifestly excessive when weighed against the six month homedetention sentence imposed. I accept Ms McPherson's submission that the 22 daysspent in custody could be equated with six weeks of home detention. Accordingly, Iquash Ms Temple's sentence of six months' home detention and impose one of fourand a half months. The standard and special release conditions imposed by the DistrictCourt, for six months following the sentence expiry date, will remain.Result[24] Mr Carpenter's appeal is dismissed. Ms Temple's appeal is allowed in termsset out at [23] above. The standard and special release conditions imposed by theDistrict Court, for six months following the sentence expiry date, will remain.Isac JSolicitors:Crown Solicitor, Napier for Respondent