R v Kerr - [2016] NZHC 1547

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-009674 [2016] NZHC 1547

THE QUEEN

v

JEREMY HAMISH KERR

Hearing: 8 July 2016

Appearances:

B Dickey and H M Ford for Crown
J R Billington QC for Defendant

Sentenced:

8 July 2016

SENTENCING NOTES OF VENNING J

Solicitors: Crown Solicitor, Auckland
Copy to: J R Billington QC, Auckland

R v KERR [2016] NZHC 1547 [8 July 2016]

[1] Jeremy Hamish Kerr you are for sentence having pleaded guilty to one charge of selling a Class C controlled drug (BZP and TFMPP) and four charges of possession for sale of a Class C controlled drug (BZP and TFMPP). For each offence the maximum penalty is eight years’ imprisonment. You are currently serving a sentence of eight and a half years’ imprisonment. This Court imposed that sentence on 23 March this year following your guilty plea to two counts of blackmail.

[2] Your present drug offending came to the attention of the Police during the course of an operation codenamed Operation Ark. In September 2011 you were observed meeting a key target of that operation. You were followed from the meeting to an industrial premises operated by you at Highbrook Drive and later that day to storage units in East Tamaki. Over subsequent months the Police executed search warrants at units that you used at the storage premises. A covert search of the premises on 12 September 2011 revealed:

(a) a white 15 litre pail, half-full of a fine pink granulated powder containing BZP and TFMPP;

(b)a second white 15-litre pail, two-thirds full of the fine pink granulated powder containing BZP and TFMPP;

(c) various racks of dies and machine stamps with ‘cat face’, dove, CK,

euro, Maserati, X and blank logos;

(d) a plastic container with numerous yellow ‘X’ pills containing BZP and

TFMPP;

(e) a plastic shopping bag containing four zip lock bags containing ‘dove’

pills containing BZP and TFMPP; and

(f) various other powders and pills.

[3] Further covert searches on 27 September and 27 October 2011 disclosed substantially the same items, except on the latter search only one of the pails was found. It was one-quarter full.

[4] The operation was terminated on 16 November 2011. On execution of a search warrant at your storage unit on that day the Police found:

(a) a zip lock bag containing 1,473 yellow ‘X’ pills containing BZP and

TFMPP;

(b) a zip lock bag containing around 7,297 purple ‘CK’ pills containing

BZP and TFMPP;

(c) four zip lock bags containing around 18,000 red/pink ‘doves/score-

line’ pills containing BZP and TFMPP; and

(d)various other items consistent with large scale pressing of Ecstasy- type pills for commercial sale, including dies, machine stamps and pressing compounds.

[5] In addition, on execution of the search warrant at your business premise the

Police found:

(a) several zip lock bags containing red/pink ‘CK’ pills containing BZP

and TFMPP, one of which contained about 5,300 pills;

(b) five pill press machines, one of which was set up with…

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.

Continue reading R v Kerr

Details

AGLC: R v Kerr [2016] NZHC 1547
Case: [2016] NZHC 1547
Decision Date: 8 July 2016

CaseChat Overview and Summary

Jeremy Hamish Kerr, the respondent, has been sentenced for selling and possessing Class C controlled drugs (BZP and TFMPP) with intent to sell. The case was heard and determined in the High Court of New Zealand, Auckland Registry. The court imposed the sentence following Kerr's guilty plea to the charges. The legal issues before the court involved determining an appropriate starting point and cumulative sentence for the drug offences, considering the totality principle, and assessing the impact of Kerr's previous convictions and personal circumstances. The court considered the nature of the drug offending, the quantities involved, and the commercial scale of the operation, as well as Kerr's previous drug-related convictions and his expressions of remorse and rehabilitation efforts.

The court held that the principal purpose of sentencing for drug offences is deterrence and denunciation. It found that Kerr's involvement in drug dealing was driven by commercial gain despite his awareness of its illegality. The court applied a starting point of three years' imprisonment for the drug offences, adjusted by three months for Kerr's previous drug-related convictions. The court then reduced the sentence by 15 to 20 percent for Kerr's guilty plea, leading to a sentence of two years and nine months. However, due to the principle of totality, the court applied an additional 15 months to the sentence, resulting in a total of nine years and nine months. The court sentenced Kerr to 15 months imprisonment for each of the drug charges, to run concurrently with each other but cumulatively with his existing sentence for blackmail. The court also ordered the destruction of the seized drugs, powders, and pill-pressing machines.

The court's reasoning was grounded in the principles of deterrence, denunciation, and the totality principle, balancing the severity of the drug offences with Kerr's previous convictions and personal circumstances. The court recognised Kerr's expressions of remorse and rehabilitation efforts but emphasised that personal circumstances are not routinely taken into account in drug cases. The final orders included the concurrent but cumulative sentences for the drug offences, destruction of the seized items, and credit for Kerr's guilty plea.

Orders