R v Kerr - [2016] NZHC 512

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-092-11253 [2016] NZHC 512

THE QUEEN

v

JEREMY HAMISH KERR

Hearing: 23 March 2016

Appearances:

C Gordon QC for Crown
J Billington QC and H M Ford for Defendant

Sentenced:

23 March 2016

SENTENCING NOTES OF VENNING J

Solicitors: Kayes Fletcher Walker, Auckland
Anthony Harper, Auckland

Copy to: J Billington QC, Auckland

R v KERR [2016] NZHC 512 [23 March 2016]

[1] Jeremy Hamish Kerr you are for sentence in this Court having pleaded guilty to two counts of blackmail. The maximum penalty in each case is 14 years’ imprisonment.

[2] On or about 26 November 2014 you sent two blackmail letters, one to the Chief Executive Officer of Fonterra and one to the Chief Executive Officer of Federated Farmers. The letters referenced sodium fluoroacetate (1080) and stated:

Enclosed is a sample of 1080 blended with New Zealand dairy infant formula currently in China

If after the 27th March 2015 this VTA is still in use in New Zealand

Several New Zealand infant and other formula will be released into the retail chain in the Chinese market and one other market with traces of 1080.

The release will coincide with a media package supplied to the Chinese authorities and competitors highlighting the risk to [New Zealand] their environment and others consuming our export products from exposure to
1080, and current NZ Government agency policy and practice with 1080

A concurrent media release in NZ and China will expose the past 30 years of flawed self serving science and bureaucracy that has allowed the Government sanctioned approvals to continue.

Our group has no confidence in the political or democratic process concerning 1080.

It is for you to manage the outcome.

This notice is private and confidential to you and will [remain] as such. If there is no compliance it will form part of the media release.

The magnitude of this issue is now beyond the temporay [sic] financial and personal sacrifice that will be made by the agricultural and tourism sectors of the New Zealand economy.

[3] Enclosed with the letters in each case was a small, self sealing plastic bag containing a sample of infant formula contaminated with 1080. The collective volume of the 1080 if ingested was sufficient to prove fatal to between 13 and 33 infants.

[4] The blackmail threats were reported to the police. Following a preliminary assessment a serious crime investigation was commenced.

[5] The investigation represented a major undertaking for police over a period of

10 months and involved at times 35 investigators and analysts. In addition, additional resources were seconded from other departments from time to time, particularly the Ministry of Primary Industries. Police were involved in assessing approximately 2,600 individuals who had in some way voiced opposition to or expressed strong views concerning the use of 1080 as a pest control agent. The police also investigated persons who had had access to 1080.

[6] The investigation involved in excess of 30,000 investigator and analytical…

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 512
Case: [2016] NZHC 512
Decision Date: 23 March 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of R v Kerr involved Jeremy Hamish Kerr, who was sentenced for blackmail. Kerr pleaded guilty to two counts of blackmail, each carrying a maximum penalty of 14 years' imprisonment. The charges stemmed from Kerr sending blackmail letters to the Chief Executive Officers of Fonterra and Federated Farmers, referencing sodium fluoroacetate (1080) and threatening to release contaminated infant formula into the Chinese market unless certain conditions were met. The letters were accompanied by samples of infant formula laced with a fatal dose of 1080.

The legal issues before the court included determining the appropriate starting point for sentencing, the relevance of personal mitigating factors, and whether a minimum term of imprisonment was necessary. The court considered the gravity of the offending, the financial and broader impacts on the victims, and the personal circumstances of the offender. It was established that Kerr was under financial pressure at the time of the offence, which was partially motivated by a desire to benefit financially if 1080 was banned.

The court evaluated several comparative cases from New Zealand and the United Kingdom to establish a relevant starting point for sentencing. It noted that while the blackmail threats were serious, there was no evidence that Kerr intended to carry out the threats. The court ultimately determined an adjusted starting point of 11½ years, reduced by one year for personal mitigating factors and a further reduction for Kerr's guilty plea, resulting in a final sentence of eight years and six months' imprisonment. The court declined to impose a minimum term of imprisonment, finding that the principles of denunciation and deterrence were adequately addressed by the sentence.

Orders