Palmer v Police

[2015] NZHC 257

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2014-406-000022 [2015] NZHC 257

BETWEEN

STEPHEN JOHN PALMER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	24 February 2015 (heard at Nelson via AVL)
Counsel:	T H A Spear for Appellant S K O'Donoghue for Respondent
Judgment:	24 February 2015

JUDGMENT OF COLLINS J [Appeal against sentence]

Introduction

[1]      This  appeal  explains  why  I  am  allowing  Mr  Palmer’s  appeal  against  a sentence of 250 hours’ community work ordered by Judge Hunt in the Kaikoura District Court on 7 November 2014.  The sentence was imposed in relation to one charge of cultivating a very small quantity of cannabis.

Background

[2]      On 29 May 2014 Ministry for Primary Industries Fisheries Officers (Fisheries Officers) executed a search warrant at the address of Mr Palmer.   The Fisheries Officers located cannabis growing at Mr Palmer’s house.  They notified the police. When the police went to the property they found two cannabis plants approximately two  centimetres  high  growing  in  a  tray  in  a  shed  at  Mr  Palmer’s  property.

Mr Palmer admitted the cannabis was his and said it was for his own use.

PALMER v NEW ZEALAND POLICE [2015] NZHC 257 [24 February 2015]

[3]      Mr Palmer is 53 years old and unemployed.  He has a history of low-level offending, including for cannabis-related charges.  He has been convicted in relation to the following cannabis charges:

(1)       Cultivating cannabis in May 2006.  He was fined $1,200.

(2)Possession  of  cannabis,  cultivating  cannabis  and  possession  of utensils in relation to cannabis in March 2000.  He was sentenced to six months’ periodic detention.

(3)       Cultivating Cannabis in November 1987.   He was sentenced to 200

hours’ community service.

(4)       Possession of cannabis seeds in August 1984. He was fined $40.

District Court decision

[4]      Judge Hunt accepted Mr Palmer’s offending was at a low-level and lacked sophistication.  He also accepted that Mr Palmer was growing cannabis for his own use.

[5]      Judge Hunt was however concerned at Mr Palmer’s history of offending and he believed that a deterrent sentence was necessary because of Mr Palmer’s pattern of similar offending.

Legal principles governing an appeal

[6]      Prior  to  the  commencement  of  the  Criminal  Procedure Act  2011  (the Act), appeals against sentence were governed by s 121 of the Summary Proceedings Act 1957. Section 250 of the Act now governs sentence appeals from the District Court to the High Court. Section 250(2) of the Act provides:

(2)      The first appeal court must allow the appeal if satisfied that—

(a)      for any reason, there is an error in the sentence imposed on conviction; and

(b)      a different sentence should be imposed.

[7]      The Court of Appeal has since confirmed that s 250(2) was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957.  Not every error in a sentence will provide the foundations for a successful appeal. The Court of Appeal has explained s 250(2)(a) of the Act in the following way:1

(1)Section 250(2) reflects a synthesis or rationalisation of the previous Crimes Act and Summary Proceedings Act provisions to provide a single test for all sentence appeals.

(2)The previous approach similarly required both the identification of an error and a need for the appeal court to be satisfied that a different sentence “should” be imposed.

(3)The practical effect of preserving the previous approach is that the appeal  court  does  not  start  afresh  nor  simply  substitute  its  own opinion for that of the original sentencer.  Rather, it must be shown that  there  was  an  error  “whether  intrinsically,  or  as  a  result  of

additional material submitted” on appeal.2    If there is an error of the

requisite  character,  the  court  will  then  form  its  own  view  of  the appropriate sentence.

(4)In assessing whether an alleged error is of the requisite character, it will be helpful to consider whether the error is material.

(5)Although s 250(2) makes no express reference to the concept of a manifestly excessive or inadequate sentence, those concepts are long- standing  and  should  continue  to  be  utilised  when  considering s 250(2).

(6)The  focus  in  sentence  appeals  remains  on  whether  the  sentence imposed is within range rather than the process by which the sentence

was reached.  In exceptional cases, it may nonetheless be necessary to

1      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[36].

2      R v Shipton [2007] 2 NZLR 218 (CA) at [139].

correct a sentence that is within range (for example, where there has

been an arithmetical error).

Submissions

[8]      Counsel for Mr Palmer provided me with a number of authorities relating to comparatively low-level cannabis offending which he submitted showed that the sentence imposed on Mr Palmer was manifestly excessive.3

[9]      Counsel for the Crown similarly drew attention to what the Crown says is a helpful comparative case.4

Analysis

[10]     I start from the proposition that Mr Palmer’s offending falls within category 1 of cultivating cannabis as identified by the Court of Appeal in R v Terewi.5    Thus, Mr Palmer’s offending is to be dealt with by way of a fine or other non-custodial sentence.

[11]     Mr Palmer’s lack of employment rendered a fine inappropriate.

[12]     I  agree  with  Judge  Hunt  that  Mr  Palmer  has  an  unfortunate  history  of offending of this nature.  However, his last cannabis conviction was nine years ago and  his  earlier  cannabis  offences  were  15,  28  and  31  years  ago.    I  believe Mr Palmer’s earlier offending is so ancient it should no longer be held against him and should be put to one side.

[13]     Whilst it is helpful to assess sentences against similar cases, each case hinges on its own circumstances.  In this case I believe the length of the community work sentence  imposed  on  Mr  Palmer  was  beyond  the  range  which  was  reasonably

available for the following reasons:

3      Haftka v Police HC Wellington AP64/98, 1 April 1998; Sadd v Police HC Blenheim AP7/98,

7 July 1998; Turner v Police HC Blenheim AP3/99, 14 April 1999; Pattison v Police HC Whangarei AP32/01, 31 August 2001.

4      Parker v Police HC Wellington CRI-2007-485-150, 27 February 2008.

5      R v Terewi [1999] 3 NZLR 62 (CA).

(1)       The quantity of cannabis was very small;

(2)       Mr Palmer’s earlier cannabis offending was so long ago it should not

have been taken into account;

(3)       Mr Palmer’s offending could be reasonably dealt with by a shorter

period of community work.

Assessment

[14]     In my assessment, Mr Palmer’s offending should have been dealt with by

way of the imposition of no more than 60 hours’ community work.

[15]     A sentence of 60 hours’ community work:

(1)would  hold  Mr  Palmer  accountable  to  the  community  for  his offending;6

(2)would  promote  in  Mr  Palmer  a  sense  of  responsibility  for  his offending;7

(3)would deter Mr Palmer and others from committing the same or a similar offence;8 and

(4)is    the    least    restrictive    outcome    that   is    appropriate    in    the circumstances.9

[16]     The sentence imposed by Judge Hunt on Mr Palmer in the Blenheim District

Court on 7 November 2014 is quashed and is replaced with a sentence of 60 hours’

community work.

6      Sentencing Act 2002, s 7(1)(a).

7      Section 7(1)(b).

8      Section 7(1)(f).

9      Section 8(g).

D B Collins J

Solicitors:

Spear Law, Nelson for Appellant

Crown Solicitor, Nelson for Respondent