The Queen v Verschaffelt - [2002] NZCA 244

IN THE COURT OF APPEAL OF NEW ZEALAND

CA239/02

THE QUEEN

PAUL GREGORY VERSCHAFFELT

Hearing:	29 August 2002
Coram:	Anderson J Williams J Salmon J
Appearances:	G Gotlieb and CJ Robertson for Appellant AE Kiernan for Crown
Judgment:	8 October 2002

JUDGMENT OF THE COURT DELIVERED BY SALMON J

Paul Verschaffelt pleaded guilty to one charge of supplying the Class A drug heroin, two charges of supplying the Class B drug ecstasy, and one charge of conspiracy to import the Class B drug, methamphetamine. He was sentenced to four years imprisonment. He appeals against that sentence on grounds related to an unusual health condition.

Background

Paul and his brother, David, were both charged with drug related offences. The charges arose as part of an on-going police enquiry. A special duties constable built up a relationship with Paul Verschaffelt. Paul outlined to the constable his plan to travel to Japan to purchase, and send to New Zealand over a period of time, substantial quantities of methamphetamine. He offered to sell the drug to the constable.
During the course of this meeting he sold the constable eight grams of heroin at a total price of $3,200. Upon analysis the drug was found to be of good quality and high purity.
At a second meeting Paul introduced the constable to his brother David who was to be the New Zealand contact and who would deliver to the constable the drugs which Paul sent to New Zealand. David was to have responsibility for the organising of the necessary finance.
At a further meeting Paul supplied the constable with four ecstasy tablets as a sample and offered to provide further tablets. Later, Paul supplied the constable with 108 tablets of ecstasy and on a final occasion, with a further 300 tablets. Official police enquiries located documents in Paul’s possession showing the sale of large numbers of ecstasy tablets.
A search warrant was executed at the home of David. Eleven small clip-seal bags of methamphetamine were found in his shirt pocket and a further 11 bags were found in a sunglass case in his car. A bag containing 81 tablets of ecstasy was also found.
The two brothers were jointly charged with conspiracy to import methamphetamine. Paul was charged with the supply of heroin and the supply of ecstasy. David was charged with possession of methamphetamine and possession of ecstasy. Each pleaded guilty to all charges.
The brothers were sentenced in the High Court. At sentencing the Judge was provided with extensive evidence relating to an unusual medical condition from which Paul suffers known as delayed cold induced angioedema. The effects of this condition have been described in affidavits filed by Dr Rohan Ameratunga, a clinical immunologist at Auckland Hospital who has been treating Paul for the last two years and was also responsible for his care in 1993 and 1994 when he was admitted to the Starship Hospital on a number of occasions. He described the condition as “extremely rare”. In an affidavit he…

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 The Queen v Verschaffelt

Details

AGLC: The Queen v Verschaffelt [2002] NZCA 244
Case: [2002] NZCA 244
Decision Date: 8 October 2002

CaseChat Overview and Summary

The appeal in the Court of Appeal of New Zealand involves Paul Verschaffelt, who was convicted of drug-related offenses, including the supply of heroin and ecstasy, as well as conspiracy to import methamphetamine. Verschaffelt was sentenced to four years imprisonment, and he appeals on the grounds of his unusual health condition, delayed cold induced angioedema, which poses significant risks if he is exposed to cold temperatures. The appeal focuses on whether the conditions of his imprisonment exacerbate his health condition to a degree that renders the sentence disproportionate and cruel, in violation of the New Zealand Bill of Rights Act 1990.

The central legal issue before the Court was whether the conditions of Verschaffelt's imprisonment, given his health condition, constituted cruel or disproportionately severe punishment. The Court also considered whether the disparity in sentencing between Verschaffelt and his brother, who was given a lesser sentence, was justified. The Court reviewed the principles established in previous cases that allow for a reduction in sentence when imprisonment poses a greater burden due to the offender's health condition.

In its judgment, the Court acknowledged that Verschaffelt's health condition necessitates specific measures to prevent exposure to cold, which inherently limits his privileges and freedoms more severely than those of other inmates. The Court emphasized that while the prison authorities were taking appropriate medical care for Verschaffelt, the restrictive conditions of his confinement amounted to a greater punishment than would ordinarily be imposed for similar offenses. The Court found that the sentencing judge did not have full information about the comparative severity of Verschaffelt's conditions, which led to an insufficient reduction in sentence. By applying the principles from previous cases and considering the specific circumstances of Verschaffelt's health, the Court determined that a 50% reduction in his sentence was warranted to account for both his guilty plea and the exacerbated severity of his punishment due to his health condition.

The Court of Appeal reduced Verschaffelt's sentence from four to three years on the charge of conspiracy to import methamphetamine, while maintaining the other sentences unchanged. All sentences are to be served concurrently. The Court did not address the disparity in sentencing between Verschaffelt and his brother, finding no need to do so given the significant impact of Verschaffelt's health condition on his sentence.

Orders