Palmer v The King
[2025] NZHC 1537
•12 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-172
[2025] NZHC 1537
BETWEEN BEVAN KENNETH PALMER
Appellant
AND
THE KING
Respondent
Hearing: 3 June 2025 Appearances:
H Laubscher for the appellant J T Lowyim for the respondent
Judgment:
12 June 2025
JUDGMENT OF BLANCHARD J
[Appeal against sentence]
This judgment was delivered by me on 12 June 2025 at 12.30 pm Registrar/Deputy Registrar
Solicitors:
North Auckland Law Chambers, Auckland Meredith Connell, Auckland
PALMER v R [2025] NZHC 1537 [12 June 2025]
[1] Mr Palmer appeals against a decision of Judge K Lummis in the District Court at Auckland dated 6 March 2025,1 sentencing him in relation to charges of cultivation of cannabis,2 possession of a non-prohibited firearm,3 and possession of ammunition.4 He pleaded guilty to the charges and was sentenced to six months’ home detention.
The offending
[2] The following summary of Mr Palmer’s offending is taken from a summary of facts that was agreed between the parties.
[3] In December 2021, the Police commenced an investigation named Operation Bush. The investigation focused on the actions of an organised criminal group involved in the cultivation of cannabis. The Police executed a number of search warrants at addresses used to cultivate cannabis.
[4] On 14 July 2022, the Police executed a search warrant at the home of Mr Palmer and Amy Hodgson in Mamaranui. At the property, the Police located a sophisticated cannabis-cultivation operation in a large two-bay shed that contained around 53 cannabis plants. One of the rooms in the house had also been converted to cultivate cannabis but was not yet being used for that purpose.
[5] An individual, known to Mr Palmer only as Tommy, and his associates, set up the cannabis growing operation at the property. Mr Palmer and Ms Hodgson shared responsibility for the day-to-day care of the plants, while Tommy and his associates attended from time to time for the specific care required by the plants.
[6] Police also located within a locked safe in the bedroom of Mr Palmer and Ms Hodgson a 12-gauge over-under shotgun with wooden stock, a Remington 12- gauge pump-action shotgun with camouflage patterns, a Churchill single-barrelled shotgun, a .22 bolt-action rifle, a 12-gauge double-barrelled “Khan” shotgun, and a
1 R v Palmer [2025] NZDC 5299.
2 Misuse of Drugs Act 1975, s 9. Maximum penalty seven years’ imprisonment.
3 Arms Act 1983, s 20. Maximum penalty one year’s imprisonment or a fine not exceeding $15,000.
4 Section 22B. Maximum penalty fine not exceeding $10,000.
.22 semi-automatic rifle with scope and suppressor. Police also located shotgun and
.22 calibre ammunition in a bedroom at the address.
[7] Neither Mr Palmer nor Ms Hodgson had a firearms licence at the time of the Police search.
[8]Mr Palmer fully cooperated and assisted the Police in their investigation.
Mr Palmer’s affidavit
[9] Mr Palmer swore an affidavit dated 16 October 2024 providing what he describes as background to his offending.
[10] In the affidavit, which Mr Palmer was not cross-examined on, he says that he was introduced to a man called Marcus who purchased scrap vehicles from him. When Mr Palmer terminated their business relationship, Marcus claimed that Mr Palmer owed him $10,000. He turned up at Mr Palmer’s work demanding payment. They subsequently met on a few further occasions after work and Marcus again demanded payment. He claimed that, with interest, he was owed $20,000.
[11] Mr Palmer says that, when he protested that he did not have access to that level of cash, Marcus mentioned that Mr Palmer could make his shed available for methamphetamine cooking. He said that would provide an opportunity to repay the debt quickly.
[12] Mr Palmer says he refused to get involved in cooking methamphetamine. But Marcus then told him that the only other option was growing cannabis. Marcus said his people would come to see Mr Palmer about this.
[13] Mr Palmer says Tommy arrived at Mr Palmer and Ms Hodgson’s property soon afterwards. He and his associates installed all the equipment in the shed and planted around 50 cannabis plants. Mr Palmer says he received instructions on the care and watering of the plants. Subsequently, Mr Palmer was advised that the installation costs of the facility had increased his debt to $40,000.
[14] Mr Palmer says that he was uncomfortable with the cannabis operation on the property. He says that he deliberately failed to water the plants as instructed and all the plants died.
[15] Mr Palmer says that, not long afterwards, Marcus came to the property and forced Mr Palmer to get into the boot of his vehicle. He drove some distance to an isolated beach. He assaulted Mr Palmer with kicks and blows to his body, breaking a few of his ribs. Marcus threatened Mr Palmer saying, “try that shit again and see what will happen”. He left Mr Palmer at the beach to find his own way home.
[16] Mr Palmer says Tommy and some associates planted a further 100 cannabis plants. Mr Palmer tended and watered the plants as instructed. Tommy and his associates came to the house regularly to check and prune the plants.
[17] Subsequently, Tommy told Mr Palmer that his spare bedroom would be ideally suited for conversion into a cannabis planting room. After further discussion, Tommy and his associates arrived a few weeks later and started converting the spare room into a separate growing facility. After completion of the conversion, Tommy advised Mr Palmer that the further installation cost had now increased his debt to $60,000.
[18] The next day, before any cannabis could be planted, the Police arrived to execute the search warrant. Mr Palmer says that he was neither aware of, nor involved in, any other activities of Marcus and Tommy’s crime syndicate or any other crime syndicate. Nor was he involved in distribution and supply of the cannabis once it had been cultivated.
District Court decision
[19] The Judge reached her final sentence of six months’ home detention in the following way:5
[6] While the specifics of that narrative have not been challenged by the Crown, the summary of facts confirms that you were not the lead in this overall operation. Taking that into account, the Crown has set and suggested the appropriate starting point is 15 months. Mr Laubscher says he has no issue
5 R v Palmer, above n 1.
with that, subject to him saying your true culpability in this, given what you have set out in your affidavit, is much lower.
[7] Mr Laubscher does take issue with the Crown’s suggested six-month uplift for the firearms charges, given the maximum penalty for those is one year and fines. The usual firearms charges we see before this Court have a maximum penalty of four years. The firearms are not usually found in a safe, and the usual starting points for those are somewhere between 18 months to two years. So while six months might be a little high, I think the one month suggested by Mr Laubscher is probably a little low.
[8] Mr Laubscher suggests a 20 per cent discount for your guilty plea, saying that late disclosure was really what caused the issue. But in the end, Mr Palmer, you know what happened, you know what went on, I am not sure that years’ worth of delays can all be attributed to late disclosure, although I do accept that there was some very tardy addressing of those actions from the Crown and police in this case. The Crown has suggested 15 per cent is appropriate.
[9] You have some relatively minor history for other offending, so it is not a matter where you can get credit for prior good character, but you are doing well at present. You have the support of your employers, you are said to be a hard worker, and they trust you. There were disciplinary proceedings for your actions, I take it, for these matters. That has now been put behind you and you continue to do well in your employment. I note that you are remorseful.
[10] Taking a start point of 15 months for the cannabis, uplifting it for two months in respect of the firearms and ammunition gets me to 17 months. From that, applying an overall discount of 25 per cent takes me to imprisonment of around 13 and a half months. You have suggested that community detention is the appropriate outcome, given the circumstances in this case, and that is what Probation have recommended. In my view, cannabis and firearms together, and with the level of discounts as I have applied them, the appropriate sentence is one of home detention. However, I am going to restrict that to a six-month sentence of home detention. That is to start today and to be served at your address …
Sentencing of Ms Hodgson
[20] I need to say something about the sentencing of Ms Hodgson because Mr Palmer submits on appeal that the sentence Ms Hodgson received shows that his sentence was manifestly excessive.
[21] Ms Hodgson was sentenced on a different date by a different Judge. She was sentenced by Judge D J McNaughton on 23 January 2025.6
6 R v Hodgson [2025] NZDC 3865.
[22] The summary of facts that was agreed in relation to Ms Hodgson is very similar to the one that was agreed for Mr Palmer. But it includes the following further information relating to her role:
Ms Hodgson had a minor role in the overall cultivation operation at the address, and was not aware of the growing operations at any of the other addresses. No financial compensation was provided to Ms Hodgson.
…
In explanation, Ms Hodgson claimed that she was under pressure from other people to assist in the cultivation.
[23] Ms Hodgson was sentenced to five months’ community detention. The Judge reached this sentence as follows:
[11] I would have thought the minimum starting point for the main offender, the person who set this up, Tommy or whoever it was, would be three years’ imprisonment. The firearms would uplift that starting point by six months.
[12] There is no issue, as I said before, regarding your role in this as minor but starting at 42 months, on the basis that that would be the sentence for the principal offender, you playing a lessor role, essentially just watering and fertilising the plants, there would be a 30 per cent reduction for your limited role.
[13] When I take into account the duress that is mentioned in your affidavit, essentially all of this work carried out under threat of physical injury or worse, that would discount your role at least 50 per cent.
[14] I give you credit for your guilty plea, although it was entered over two years after the charges were originally laid. To begin with there was a police charge of participating in an organised criminal group. When the Crown withdrew that more serious charge, you then pleaded to the remainder and that was in September last year. Accordingly, I can apply a 20 per cent discount for the guilty plea.
[15] Your personal circumstances are difficult with your autistic son. Certainly, the authorities that deal with discounts for effect of children are the imprisonment cases, but home detention would have a significant impact on your ability to care for your child, I accept. I would go beyond the 10 per cent discount applied in Phillips and say 20 per cent.
[16] So, effectively, the starting sentence is discounted by 90 per cent. What would be left would be a sentence of four months’ imprisonment. That is certainly below the home detention threshold, and I will substitute a sentence of community detention here.
[17] Sentence on all three charges will be community detention. That will be five months. That will start today at [your] address. …
Appeal legal principles
[24]The Court must allow Mr Palmer’s appeal if satisfied that:7
(a)for any reason, there is a material error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[25] In any other case, the appeal must be dismissed.8 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.9
[26] It is appropriate for the appeal court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.10 The focus is not on the process by which the sentence was reached, but on the correctness of the end result. In making this assessment, the Court does not interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering with the sentence.11
The appeal
[27] Mr Laubscher submits for Mr Palmer that the Judge should have taken a starting point of 15 months, and that she should have applied a discount of 60 to 70 per cent.
[28] He says that the result would have been a sentence of four-and-a-half to six months’ imprisonment, but that the purposes of sentencing in Mr Palmer’s case could be achieved by a less restrictive sentence than imprisonment or home detention. He says that, having regard to the sentence imposed on Ms Hodgson, as well as the almost three months of home detention Mr Palmer has served to date, a sentence of
7 Criminal Procedure Act 2011, s 250(2).
8 Section 250(3).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
10 At [32]–[35].
11 Ngawati v New Zealand Police [2022] NZHC 2156 at [6].
three months community detention is appropriate. This would mean that Mr Palmer’s sentence would now be complete.
The starting point
[29] Although Mr Laubscher’s written submissions suggest that the starting point should have been 15 months, at the hearing, he acknowledged that the starting point adopted by the Judge of 17 months was within range. In my view, this starting point was appropriate.
Discount
[30] As I have said, the Judge applied a discount of 25 per cent for both Mr Palmer’s guilty plea and for remorse. The exact split is unclear from the Judge’s decision. She either gave him a 15 per cent discount for the guilty plea and a 10 per cent discount for remorse, or a 20 per cent for the for the guilty plea and a five per cent discount for remorse.
[31] Mr Laubscher argues that this discount was far too low. He submits that, unlike Ms Hodgson, Mr Palmer was given no credit for his reduced culpability as a result of the matters contained in his affidavit. He says that Ms Hodgson received a 50 per cent discount for these matters, and yet Mr Palmer received nothing for those matters.12
[32] But I do not accept that Mr Palmer received no discount for the matters contained in his affidavit. It appears to me that he received a significant discount for these matters.
[33] The matters contained in Mr Palmer’s affidavit go to the gravity of the offending. They are to be factored in at stage one of the Moses sentencing methodology.13 The discount Mr Palmer received was built into the starting point of 15 months the Judge adopted for the cannabis cultivation offending. It is clear from
12 R v Hodgson, above n 6, at [13].
13 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
the Judge’s decision that she took Mr Palmer’s narrative into account in setting the starting point.14 She summarised the narrative,15 and then said:
[6] While the specifics of that narrative have not been challenged by the Crown, the summary of facts confirms that you were not the lead in this overall operation. Taking that into account, the Crown has set and suggested the appropriate starting point is 15 months.
[34] The Judge then adopted the Crown’s starting point of 15 months for the cannabis cultivation.16
[35] As set out above, in Ms Hodgson’s sentencing, Judge McNaughton applied a discount of 50 per cent because of Ms Hodgson’s limited role and the “duress” and “threat of physical injury or worse” she was exposed to. However, he applied this discount to a much higher starting point than the one that Judge Lummis adopted for Mr Palmer. He applied it to a starting point of three years for the cannabis cultivation (which he said was the starting point he would have applied had he been sentencing Tommy.) This is much higher than Judge Lummis’s starting point of 15 months for the cannabis cultivation.
[36] The result of applying a 50 per cent discount to a three-year starting point is a starting point of 18 months’ imprisonment. This is reasonably close to the 15 months starting point that Judge Lummis adopted for Mr Palmer.
[37] Mr Laubscher also argues that Mr Palmer should have received a discount due to the difficulty of caring for his and Ms Hodgson’s autistic son. As set out above, Ms Hodgson received a discount of 20 per cent for this. Mr Laubscher acknowledges that the discount Mr Palmer received should be lower because Ms Hodgson is their son’s primary carer. But he submits that Mr Palmer should have received a significant discount for this factor.
[38] While the need to care for their son appears to have been emphasised in Ms Hodgson’s case, it does not appear to have been a focus of the sentencing
14 At [5].
15 R v Palmer, above n 1, at [5].
16 At [10].
submissions made to the Judge on behalf of Mr Palmer. It may well be that this is why this factor did not feature in Mr Palmer’s sentencing.
[39] However, there was material before the District Court that might have justified a discount for Mr Palmer for this factor. In particular, the pre-sentence report contains details of the son’s condition and his needs. It says that, while Ms Hodgson is their son’s primary carer, [redacted], she needs support from Mr Palmer. The report suggests that Ms Hodgson and Mr Palmer continue to live together at the property even though are no longer in an intimate relationship so that, when Mr Palmer returns from work, he can support Ms Hodgson in caring for their son.
[40] In my view, a discount of five per cent might have been justified for this factor. But, in the circumstances, I do not think it was an error to not allow a discount of this kind. It did not result in an end sentence that was manifestly excessive.
Error in sentencing of Ms Hodgson
[41] In sentencing Ms Hodgson, Judge McNaughton said that the starting point for Tommy for all offences would be 42 months. He then suggested that the starting point for Ms Hodgson should be 50 per cent lower. This suggests her starting point should be 21 months. He also determined that she was entitled to discounts totalling 40 per cent for her guilty plea and her son’s autism. Application of a discount of 40 per cent to 21 months results in 12 months. This is close to Judge Lummis’s 13 months for Mr Palmer. However, the figure Judge McNaughton came up with was four months, which he then converted to five months’ community detention.
[42] It appears to me that the reason Judge McNaughton got to four months rather than 12 months was because he made an error in applying his 40 per cent discounts. He applied them to his starting point of 42 months for Tommy, rather than to a 21-month starting point for Ms Hodgson. This resulted in Ms Hodgson receiving double the effect of the 40 per cent discounts.
[43] It might be suggested that the significant difference between Judge Lummis’s 13 months for Mr Palmer and Judge McNaughton’s four months for Ms Hodgson arises because Mr Palmer was sentenced too harshly. However, the analysis above
suggests that it arose because Judge McNaughton’s four months was too low due to the error he made in applying the 40 per cent discounts.
Community detention
[44] I have not accepted Mr Laubscher’s arguments for Mr Palmer. I have concluded that the 13-and-half months’ imprisonment that the Judge reached was reasonable.
[45] But, in oral submissions, Mr Laubscher argued that, even if the Judge was right to get to 13-and-a-half months’ imprisonment, she was still wrong to sentence Mr Palmer to home detention rather than community detention. However, I do not accept this submission. Taking into account the 13-and-a-half month figure she had reached and the nature of the offending, it was reasonable to impose home detention.
Result
[46]The appeal is dismissed.
Blanchard J
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