Tarm v The Queen - [2016] NZCA 261

IN THE COURT OF APPEAL OF NEW ZEALAND

CA326/2015
[2016] NZCA 261

BETWEEN	CHUCK LOU TARM Appellant
AND	THE QUEEN Respondent

Hearing:	24 May 2016
Court:	Stevens, Woodhouse and Wylie JJ
Counsel:	M E Goodwin and G Ghahraman for Appellant I R Murray for Respondent
Judgment:	16 June 2016 at 11.30 am

JUDGMENT OF THE COURT

AThe application to extend the time to appeal is granted.
BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Woodhouse J)

Following a sentence indication given by Lang J, the appellant, Mr Tarm, pleaded guilty to 26 charges of dealing in class A and class B controlled drugs. These were: eight charges of supplying methamphetamine; two charges of possession of methamphetamine for supply; one charge of conspiring to supply methamphetamine; 14 charges of supplying pseudoephedrine; and one charge of possession of pseudoephedrine for supply.
On 5 May 2015, Mr Tarm was sentenced by Lang J to 12 years and six months’ imprisonment with a minimum period of imprisonment of six years and three months.[1]
[1]R v Tarm [2015] NZHC 930 [Sentencing notes].
Mr Tarm has appealed against the sentence. His only contention is that a minimum period of imprisonment should not have been imposed, or that it should have been shorter.
Mr Tarm’s notice of appeal was filed out of time. As the delay is minimal and explained, we grant an extension of time within which to bring his appeal.

The offences

On eight occasions between August and December 2013, Mr Tarm supplied others with a total of 700 grams of methamphetamine with an estimated value of $247,500. On 14 occasions between July and November 2013, he supplied a total of around eight kilograms of pure pseudoephedrine contained in 20 kilograms of ContacNT (a cold and flu medication). This had an estimated value of $765,000. At the end of the police operation, Mr Tarm’s home and work premises were searched. Mr Tarm was found in possession of 70 grams of methamphetamine and $169,970 in cash at his home, and 140 grams of methamphetamine, two kilograms of ContacNT and $150,000 in cash at his work premises. The conspiracy charge related to half an ounce of methamphetamine in respect of which actual supply could not be established.
Lang J described Mr Tarm as a wholesaler.[2] Mr Goodwin for Mr Tarm did not take issue with that assessment.

Minimum periods of imprisonment: the statutory provision

[2]At [11].

The relevant provision is s 86(2) of the Sentencing Act 2002, as follows:
86Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment
…
(2)The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b) denouncing the conduct in which the offender was…

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 Tarm v The Queen

Details

AGLC: Tarm v The Queen [2016] NZCA 261
Case: [2016] NZCA 261
Decision Date: 16 June 2016 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Chuck Lou Tarm, the appellant, appealed against his sentence imposed by Lang J, contending that the minimum period of imprisonment should not have been imposed or should have been shorter. The appeal was filed out of time, but the court granted an extension to bring the appeal. The appellant pleaded guilty to 26 charges of dealing in class A and class B controlled drugs, including supplying and possessing methamphetamine and pseudoephedrine for supply. He was sentenced to 12 years and six months’ imprisonment with a minimum period of imprisonment of six years and three months. The court considered the statutory provision for imposing a minimum period of imprisonment under the Sentencing Act 2002, and concluded that the sentence was appropriate given the seriousness of the offending and the risk of further offending due to the appellant's gambling addiction.

The court considered the principles for imposing a minimum period of imprisonment in cases of very serious drug offending, and noted that personal factors generally cannot be given as much weight as they might be given in sentencing for other types of offending. The court rejected the appellant's argument that the Judge failed to give due weight to his personal characteristics, and found no error in the Judge's assessment of the risk of further offending due to the appellant's gambling addiction. The court was satisfied that the Judge properly applied the statutory provision and the principle developed in the leading cases to the particular circumstances of this case.

The Court of Appeal granted the application to extend the time to appeal and dismissed the appeal against sentence. The final orders were that the application to extend the time to appeal is granted and the appeal against sentence is dismissed.

Orders