R v Palmer - [2007] NZCA 167

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA336/06
[2007] NZCA 167
THE QUEEN
v
KEVIN MICHAEL PALMER
Hearing:14 March 2007

Court:Robertson, Baragwanath and Venning JJ
Counsel:E M Thomas for Crown

G C Gotlieb and R Langton for Respondent

Judgment:2 May 2007 at 11 am

JUDGMENT OF THE COURT

A THE SOLICITOR-GENERAL’S APPLICATION FOR LEAVE TO APPEAL IS GRANTED.
BThe sentences imposed in the District Court are quashed.

CMr Palmer is sentenced to three years’ imprisonment on each count (the terms to be served concurrently) together with a fine of $100,000.
DMr Palmer is required to present himself to the Registrar at the District Court at Manukau on Monday 7 May 2007 at 9am to continue serving the term of imprisonment imposed upon him.

____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
The issues
[1] This is an application for leave to appeal against concurrent sentences of two years’ imprisonment with leave to apply for home detention, together with a $100,000 fine, imposed on Mr Palmer after he had pleaded guilty to one representative charge of importing the Class B controlled drug Gamma-butyrolactone (“GBL”), one representative charge of supplying GBL and one charge of possession of GBL for supply.
[2] The Solicitor-General contends that the sentence was manifestly inadequate because:
(a)the starting point of five years’ imprisonment adopted by the Judge was too low having regard to decisions of this Court; and
(b)the 60% discount given in recognition of mitigating factors (including the preparedness to pay a fine) was unsustainably generous.

[3]       This case raises questions relating to sentence indications given prior to guilty pleas being entered and the processes to be adopted where there is serious divergence about essential factual matters. There is also a defence claim that the change in status of the drug had not sufficiently been drawn to public attention.
Factual background
[4]       Over a number of years prior to 2002, Mr Palmer had been a user of GBL which he obtained from gymnasia in the Auckland area.
[5]       On 31 May 2002 GBL became a class B controlled drug and Mr Palmer could no longer source it in New Zealand. Prior to that the drug had been free of controls.
[6]       In mid-2004, New Zealand Customs became aware of the importation of GBL into New Zealand from a fictitious company based in Israel that sold to foreign buyers over the Internet. It transpired that of 170 consignments despatched by August 2004, 22 had been sent to Mr Palmer in New Zealand.
[7]       There was an interception of a suspicious package in October 2004. It was labelled “hair tonic” but was found to contain 4.42 litres of GBL. In a combined police and Customs operation, a controlled delivery of this package took place.
[8]       When the police executed a search warrant at Mr Palmer’s home later that day, they found:
(a)       the package that had been intercepted;
(b)a one litre bottle 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.

Continue reading R v Palmer

Details

AGLC: R v Palmer [2007] NZCA 167
Case: [2007] NZCA 167
Decision Date: 2 May 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of The Queen v Kevin Michael Palmer was heard on 14 March 2007, with judgment delivered on 2 May 2007. The central issue in this case was an application for leave to appeal against the sentences imposed on Mr Palmer after he pleaded guilty to drug importation, supply, and possession charges. The Crown argued that the two-year imprisonment sentence with leave to apply for home detention, along with a $100,000 fine, was manifestly inadequate. The primary contention was that the starting point of five years' imprisonment was too low and the 60% discount given for mitigating factors was excessively generous.

The Court addressed several key questions, including the appropriateness of sentence indications provided before the guilty pleas and the handling of essential factual disagreements. The factual background revealed that Mr Palmer had been importing Gamma-butyrolactone (GBL), a Class B controlled drug, from Israel. The defence argued that Mr Palmer's lack of knowledge about the drug's new legal status mitigated his culpability. The Crown maintained that the sentence was beyond the Judge's discretion.

The Court found that the sentencing process was flawed due to the lack of agreement on essential facts and the inadequate handling of the sentencing indication. The starting point for sentencing was deemed too low, and the significant discount for mitigating factors was inappropriate. The $100,000 fine, while agreed upon by the parties, was seen as neutral and not an additional detriment. The Court concluded that an effective sentence of at least four years' imprisonment was necessary.

Ultimately, the Court granted leave to appeal, quashed the original sentences, and imposed three years' imprisonment on each count to be served concurrently, along with the $100,000 fine. Mr Palmer was directed to present himself to the Registrar at the District Court at Manukau on 7 May 2007 to continue serving his sentence.

Orders