R v Palmer - [2004] NZCA 41

IN THE COURT OF APPEAL OF NEW ZEALAND
CA332/03
THE QUEEN
v
DAMIAN JOHN PALMER
Hearing:15 March 2004

Coram:Anderson P
Laurenson J
Paterson J
Appearances: M J Ruffin & G A Andree-Wiltens for Crown

J R Billington QC & T J Peters for Respondent

Judgment:31 March 2004

JUDGMENT OF THE COURT DELIVERED BY LAURENSON J

INTRODUCTION
[1] The Solicitor-General seeks leave to appeal against sentences imposed on the respondent in respect of two convictions under s105A of the Crimes Act 1961 which provides as follows:
105A. Corrupt use of official information – Every official is liable to imprisonment for a term of not exceeding 7 years who, whether within New Zealand or elsewhere, corruptly uses or discloses any information, acquired by him in his official capacity, to obtain, directly or indirectly, and advantage or a pecuniary gain for himself or any other person.

[2] Following a two-week trial before a Judge alone in the District Court at Auckland, the respondent was sentenced to 18 months imprisonment. Leave was granted to apply for home detention and the sentence deferred to enable an application to be considered. The application was subsequently granted by the Parole Board. The respondent’s release date is 31 May 2004.
[3] The sequence of events leading up to the present appeal is of some significance. It was:
a)Date of offending 13 April 2000.
b)Trial 12 to 27 May 2003.
c)Decision 3 June 2003.
d)Sentence imposed 25 July 2003.
e)Solicitor-General’s appeal filed 22 August 2003.
f)Appeal heard 15 March 2003.

Factual background
[4](i) The respondent, Mr Palmer, is now 44 years of age. He is married with four children now aged between 7 and 13 years.
(ii)He commenced work with the Government Superannuation Fund (“GSF”) in August 1997 as a fixed interest dealer. The GSF by reason of the large amount of funds entrusted to it is capable of exerting considerable influence on security markets.
(iii)The respondent was a senior member of a small team responsible for the purchase and sale of fixed securities on behalf of GSF.

[5] Given the nature and sensitivity of its functions, GSF and its employees were subject to the Ministry of Commerce Code of Conduct which, amongst other things, directed staff to avoid conflicts of interest, display the utmost integrity and avoid improper use of official information. Commencing in February 1999, GSF began consultations with its staff directed to formulating a Government Super Fund Code of Conduct which specifically prohibited employees trading in futures on their own behalf. The Judge found that although the Code may not have been finally completed by 13 August 2000, it was well established that staff were not entitled to deal in futures for their own benefit. But, as the Judge found, the respondent did deal in futures and in fact made a large sum of money when he exploited information he acquired in his official capacity.
[6] In early April 2000, the respondent created a Trading Trust, the sole beneficiaries of which were his Family Trust, effectively…

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 [2004] NZCA 41
Case: [2004] NZCA 41
Decision Date: 31 March 2004

CaseChat Overview and Summary

The case of R v Palmer involved an appeal by the Solicitor-General against the sentences imposed on Damian John Palmer, who was convicted of two counts of corrupt use of official information under s105A of the Crimes Act 1961. Palmer was a senior member of a team at the Government Superannuation Fund (GSF) who exploited his knowledge of GSF's investment strategy to profit from futures trading, resulting in a profit of $269,896.20. The District Court sentenced Palmer to 18 months imprisonment, with leave granted to apply for home detention, which was subsequently granted by the Parole Board.

The appeal before the Court of Appeal of New Zealand centred on whether the sentence imposed was manifestly inadequate and wrong in principle. The Court considered the aggravating factors, including the abuse of position of trust, the extent of the loss, and the undermining of public confidence in financial markets. The mitigating factors considered included Palmer's lack of a previous criminal record and his role as a responsible family man.

The Court of Appeal concluded that while the sentence was within the appropriate range for the type of offence, it was still manifestly inadequate and wrong in principle. The starting point for sentencing should have been in the range of 3 to 4 years, leading to a net sentence of at least 2½ years imprisonment after taking into account both aggravating and mitigating circumstances. However, due to the delay in hearing the appeal, the respondent having completed the major part of the sentence, and the distress suffered by the respondent's family, the Court found it contrary to the interests of justice to increase the sentence already imposed. Leave to appeal was granted, but the appeal was ultimately dismissed.

Orders