Palmer v Police - [2015] NZHC 257

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2014-406-000022 [2015] NZHC 257

BETWEEN
STEPHEN JOHN PALMER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 24 February 2015 (heard at Nelson via AVL)

Counsel:

T H A Spear for Appellant
S K O'Donoghue for Respondent

Judgment:

24 February 2015

JUDGMENT OF COLLINS J [Appeal against sentence]

Introduction

[1] This appeal explains why I am allowing Mr Palmer’s appeal against a sentence of 250 hours’ community work ordered by Judge Hunt in the Kaikoura District Court on 7 November 2014. The sentence was imposed in relation to one charge of cultivating a very small quantity of cannabis.

Background

[2] On 29 May 2014 Ministry for Primary Industries Fisheries Officers (Fisheries Officers) executed a search warrant at the address of Mr Palmer. The Fisheries Officers located cannabis growing at Mr Palmer’s house. They notified the police. When the police went to the property they found two cannabis plants approximately two centimetres high growing in a tray in a shed at Mr Palmer’s property.
Mr Palmer admitted the cannabis was his and said it was for his own use.

PALMER v NEW ZEALAND POLICE [2015] NZHC 257 [24 February 2015]

[3] Mr Palmer is 53 years old and unemployed. He has a history of low-level offending, including for cannabis-related charges. He has been convicted in relation to the following cannabis charges:

(1) Cultivating cannabis in May 2006. He was fined $1,200.

(2)Possession of cannabis, cultivating cannabis and possession of utensils in relation to cannabis in March 2000. He was sentenced to six months’ periodic detention.

(3) Cultivating Cannabis in November 1987. He was sentenced to 200

hours’ community service.

(4) Possession of cannabis seeds in August 1984. He was fined $40.

District Court decision

[4] Judge Hunt accepted Mr Palmer’s offending was at a low-level and lacked sophistication. He also accepted that Mr Palmer was growing cannabis for his own use.

[5] Judge Hunt was however concerned at Mr Palmer’s history of offending and he believed that a deterrent sentence was necessary because of Mr Palmer’s pattern of similar offending.

Legal principles governing an appeal

[6] Prior to the commencement of the Criminal Procedure Act 2011 (the Act), appeals against sentence were governed by s 121 of the Summary Proceedings Act 1957. Section 250 of the Act now governs sentence appeals from the District Court to the High Court. Section 250(2) of the Act provides:

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[7] The Court of Appeal has since confirmed that s 250(2) was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957. Not every error in a sentence will provide the foundations for a successful appeal. The Court of Appeal has explained s 250(2)(a) of…

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.

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Details

Case: [2015] NZHC 257
Decision Date: 24 February 2015

CaseChat Overview and Summary

The case of Palmer v Police involved Stephen John Palmer, who appealed against a sentence of 250 hours' community work imposed by Judge Hunt in the Kaikoura District Court. The sentence was in relation to a charge of cultivating a very small quantity of cannabis. The appeal was heard by Collins J in the High Court of New Zealand Blenheim Registry on 24 February 2015. The primary legal issue was whether the sentence imposed by Judge Hunt was manifestly excessive or inadequate under Section 250(2) of the Criminal Procedure Act 2011.

Collins J considered the legal principles governing sentence appeals, particularly the requirement that an appeal court must be satisfied of an error in the sentence and that a different sentence should be imposed. The court noted that not every error would warrant a successful appeal and that the focus remains on whether the sentence falls within an appropriate range. Collins J assessed Mr Palmer's case against his history of low-level cannabis-related offending and concluded that the length of the community work sentence was beyond the reasonably available range. The court found the quantity of cannabis to be very small, and Mr Palmer's previous cannabis offences were long past, making them irrelevant.

Collins J determined that Mr Palmer's offending should have been addressed with no more than 60 hours' community work, considering it the least restrictive outcome appropriate in the circumstances. The court quashed the original sentence and imposed a sentence of 60 hours' community work, aligning with the principles of accountability, responsibility, deterrence, and proportionality. The final order replaced the original sentence with the new sentence of 60 hours' community work.

Orders