Palmer (aka Baker) v Police HC Christchurch CRI-2011-409-000093 [2011] NZHC 1820 (20 October 2011)

Last Updated: 13 January 2012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000093
_{CRI-2011-409-000094}

TERENCE JAMES PALMER (AKA TERENCE JAMES BAKER)

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 20 October 2011

Appearances: Appellant Appears In Person

C J Boshier for Respondent

Judgment: 20 October 2011

_{ORAL JUDGMENT OF CHISHOLM J}

[1] This is an appeal against a sentence of 16 months imprisonment in relation to charges of threatening to kill, wilful trespass, and intimidating behaviour. The appellant pleaded guilty to all of those charges. He was also convicted and discharged on a charge of disorderly behaviour. At sentencing Mr Palmer was represented by counsel but apparently spoke for himself. He represented himself on this appeal.

[2] The facts are these: On 4 August 2011 Mr Palmer was served with a trespass notice in relation to Countdown which applied for two years. Four days later he was seen in the store by the duty manager. When he was approached by a staff member Mr Palmer challenged that person to a fight and said “I’ll kill ya”. Thirty seconds

_{later he made a similar statement to another staff member.}

PALMER (AKA BAKER) V NEW ZEALAND POLICE HC CHCH CRI-2011-409-000093 20 October 2011

[3] Upon leaving the store he walked across the road directly into the path of oncoming traffic and played “chicken” with the traffic. Then he entered a toilet at the Christchurch Polytechnic, shouting and yelling, and broke hinges from the cover over a toilet roll dispenser.

[4] The previous day (7 August 2011) he had been in a shared kitchen in a Round the World Backpackers venue. When told to leave he became verbally abusive, hence the charge of intimidating behaviour.

[5] At the age of 61 years Mr Palmer is well known to the Court. His previous record runs into 32 pages. While most of the offending could be described as lower level dishonesty and violence he also has previous convictions for aggravated assault and assault with a weapon. This offending occurred shortly after he had been released from prison for earlier offending. An updated pre-sentence report, which did not favour a community based sentence, was before the sentencing Judge.

[6] The sentencing Judge took the view that the only realistic response was prison. Taking the threatening to kill as the lead charge, she applied a starting point of six months imprisonment for that charge. A further two months was added for the trespass and two more months were added for the intimidatory behaviour. Having reached a total of 10 months, the Judge then added an uplift to reflect what the Judge described as “your prior history”. This would have referred to Mr Palmer’s previous convictions as well as other personal aggravating factors such as the fact that the offending on 8 August was committed while he was on bail and all the offending was committed while he was subject to a sentence.

[7] Having arrived at a sentence of 18 months imprisonment the Judge indicated that she would give a discount of 25%. However, she only allowed a discount of two months. A 25% discount would have produced a sentence of around 13 months.

[8] Mr Palmer explained that his appeal reflects several factors. He acknowledges that alcohol is a dominating factor in his life and a major problem. He said that as a result of this he suffers from tinnitus which is creating severe problems for him at this time. He indicated that when he is released he intends to obtain

medication. His complaint seems to be that the sentencing Judge did not take his tinnitus problem into account.

[9] The appellant then claimed that the offending relating to the threatening to kill was in response to threats that he overhead to the effect that someone had said “Maybe we should kill him”. He claimed that he was simply responding to a threat and that nothing serious was intended. He also mentioned that his partner has cancer and that he wants to get on with life and he is serious about making changes.

[10] This appeal will have to be allowed if for no other reason than the result obviously intended by the Judge was not achieved. If the intended 25% discount had been implemented the sentence would have been in the region of 13 months imprisonment. The issue is whether there should be any further adjustment to reflect the matters raised by Mr Palmer, or indeed, any other matters.

[11] While the 10 months that the Judge arrived at for the overall offending is at the upper end of the range, I do not think that it could be said to be beyond the starting point reasonably available. Likewise, while the uplift of eight months is high, I have not been persuaded that it was outside the available range. Mr Palmer’s previous record is nothing short of appalling and the Judge was entitled to reflect this, together with the fact that he was subject to a sentence and on bail, by a stern uplift.

[12] In the end, however, it is necessary to step back and look at the end sentence on a totality basis. Once the discount intended by the Judge and all other relevant factors are taken into account, I am satisfied that the sentence of 16 months was manifestly excessive and that the sentence should have been 12 months imprisonment. The appeal will be allowed. The sentence of 16 months is quashed. A sentence of 12 months imprisonment is substituted, being 12 months imprisonment on the threatening to kill, and concurrent sentences of one month on the trespass and intimidating behaviour. The conviction and discharge for the disorderly behaviour stands.

[13] One final word, Mr Palmer. As I have said, it is a waste of time coming to the Court expecting leniency. You will not get it. But for the miscalculation here, you would not have got much change from me either. As I have said, at age 61 most people are well and truly out of the offending mode. Keep off the grog, get out of the offending mode, and you can join them.

Solicitors:

Raymond Donnelly, P O Box 533, Christchurch