CARTER v NEW ZEALAND POLICE [2020] NZHC 1708

CARTER v NEW ZEALAND POLICE [2020] NZHC 1708 [15 July 2020]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECRI-2020-442-3[2020] NZHC 1708BETWEEN TIMOTHY CARTERAppellantAND NEW ZEALAND POLICERespondentHearing: 15 July 2020Counsel: S J Zindel and P A S Morrison for AppellantA R Goodison for RespondentJudgment: 15 July 2020JUDGMENT OF SIMON FRANCE J[1] On 4 February Mr Carter pleaded guilty to five charges, all stemming from agrievance over a workplace dispute. He has served his sentence but appeals one of thefive convictions on the basis that he did not intend to plead guilty to it. Affidavitswere filed by Mr Carter and by his former lawyer. Neither was required for cross-examination.Facts[2] Mr Carter was annoyed with his employer. A meeting ended in a heated state.Mr Carter left the premises and when he sought to return, access was denied.Mr Carter headbutted the person blocking him. Thereafter, on different occasions, hesent abusive text messages, gestured to throw a rock at a vehicle owned by thebusiness, and left threatening material at an employee's home. The assault and thethree subsequent acts were the subject of four separate charges all laid on 16 January2020. There was provided a single summary of facts covering all four charges. Theevents were said to have occurred between 13 and 15 January 2020.[3] The charges were called on 4 February 2020. On that day a fifth charge waslaid. The charge was that Mr Carter:threatened to shoot and stab the occupants at [his workplace].[4] The offence date was between 1 September 2019 and 31 October 2019, therebyplacing it as occurring between three and five months before the batch of four charges.The charging document for this fifth offence alleged an offence against s 307 of theCrimes Act 1961.[5] There was evident confusion on the callover date of 4 February. Mr Carter'slawyer said there were four charges (suggesting he was unaware of this latest charge),the Judge said correctly there were five, and the prosecutor said he had only one(presumably this latest extra charge). Eventually the five charges were identified andan accurate summary of what each involved was stated to the Court. Mr Carter'slawyer indicated guilty pleas to all charges. The pre-sentence report correctly recordedfive offences. The content does not specifically refer to the individual charges soprovides no insight into what Mr Carter knew about the fifth charge.[6] The sentencing notes describe the contents of this charge in the terms containedin the relevant summary of facts.The appeal[7] There are in effect two grounds of appeal. The first is that Mr Carter did notintend to plead guilty to the fifth charge, and has always disputed its correctness. Thesecond concerns the nature of the charge.[8] I consider the latter resolves the appeal and address only that. The charge, asnoted, alleged Mr Carter:threatened to shoot and stab the occupants It is charged as a breach of s 307 of the Crimes Act 1961, and that is the convictionentered. Section 307 reads:307 Threatening to destroy property(1) Every one is liable to imprisonment for a term not exceeding 3 yearswho sends or causes to be received, knowing the contents thereof, anyletter or writing threatening to destroy or damage any property, or todestroy or injure any animal.(2) Nothing shall be an offence against subsection (1) unless it is donewithout lawful justification or excuse, and without claim of right.[9] It is plainly the wrong section. Mr Carter's threats were against people, as theparticulars state. The most obvious alternative, s 306 of the Act, has a much highermaximum penalty. The power of an appeal court to substitute a different convictionwhere the original conviction resulted from a guilty plea requires the consent of thedefendant.1 Consent is not forthcoming here. There are much lesser charges whichwould fit the facts but the respondent has not sought to have them substituted,something which would again require the appellant's consent.[10] The situation falls within the third of the R v Le Page categories – the defendantcould not be guilty of the offence charged.2[11] The appeal against the conviction for an offence against s 307 of the CrimesAct 1961 is allowed and the conviction quashed. The sentence having been served, itis not appropriate to make any other orders._____________________Simon France JSolicitors:Zindels, Nelson for AppellantCrown Solicitor's Office, Nelson for Respondent1 Criminal Procedure Act 2011, s 234(4).2 R v Le Page [2005] 2 NZLR 245 at [18].