GORDON MARK HOLLAND AND THE KING
[2024] NZCA 491
•27 September 2024 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA755/2023 [2024] NZCA 491 |
| BETWEEN | GORDON MARK HOLLAND |
| AND | THE KING |
| Hearing: | 28 August 2024 |
Court: | Cooke, Peters and Grice JJ |
Counsel: | E Huda for Appellant |
Judgment: | 27 September 2024 at 10.30 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Peters J)
The appellant, Mr Holland, appeals against a sentence of six years’ imprisonment imposed by Judge J A Farish in the District Court at Christchurch on one charge of importing a Class A controlled drug, cocaine.[1]
[1]R v Holland [2023] NZDC 17587 [Judgment under appeal]. Mr Holland was convicted under s 6(1)(a) of the Misuse of Drugs Act 1975, which carries a maximum penalty of life imprisonment.
Mr Holland contends the end sentence of six years’ imprisonment is manifestly excessive and, in particular, that the Judge’s starting point of seven years and seven months’ imprisonment was too high. We note that, in sentencing Mr Holland, the Judge recorded that he had been in custody for almost two years, and that he was, or would shortly be, eligible for parole once the sentence was imposed.[2] As we understand it, Mr Holland remains in custody pending a further appearance before the Parole Board in December 2024.
[2]Judgment under appeal, above n 1, at [24].
Although the appeal was filed out of time, the delay is relatively short and the Crown does not oppose an extension, which we grant.
Background
In early June 2021, New Zealand Customs inspected and seized a parcel containing 470 grams of cocaine, addressed to a Frederick Jamieson. The parcel (as with two earlier packages) was destined for the address of Mr Holland’s co-defendant, Ms Halliburton. Customs notified the New Zealand Police of its discovery.
The parcel having failed to arrive at Ms Halliburton’s address as expected, Mr Holland had Ms Halliburton telephone the courier company intended to deliver the package, to make enquiries as to its whereabouts. Mr Holland had the tracking details. Ms Halliburton’s telephone call to the courier company was intercepted and recorded. Ms Halliburton was told that the package had been collected by a person named “Hanna”. Mr Holland can be heard on the recording, asking who Hanna was, where the package was, and so on.
Over the next couple of days, Mr Holland was insistent about locating the package, and he offered to pay Ms Halliburton $10,000, in cash, if she were able to locate it. One of Mr Holland’s texts to Ms Halliburton was as follows:
Please find this parcel it will be both our heads if it’s not found. I’l pay u well if u can sus it I’ll give u 10g right now...cash. seriously not good
At Mr Holland’s instigation and urging, Ms Halliburton also broke into a neighbouring property to ascertain whether they had the package. Ms Halliburton was found guilty of burglary in relation to that incident.
On the morning of trial, Mr Holland pleaded guilty to an alternative charge of attempting to possess cocaine. Mr Holland pleaded guilty to the importation charge after the Crown case had closed and Ms Halliburton had given evidence in her defence.
Sentencing in the District Court
The Judge set the starting point by reference to the bands in Zhang v R and Berkland v R.[3] The quantity of the drug intercepted put Mr Holland’s offending in band three of Zhang. Such offending will usually attract a starting point of between six and 12 years’ imprisonment.[4]
[3]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; and Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
[4]Zhang v R, above n 3, at [19]; and Berkland v R, above n 3, at [30].
As to role, the Judge assessed Mr Holland’s as that of a “catcher”, being at the lower end of the “significant” role.[5] The Judge also inferred a commercial element to Mr Holland’s participation in the importation, given his offer of $10,000.[6]
[5]Judgment under appeal, above n 1, at [14].
[6]At [18].
The Judge set a starting point of eight years’ imprisonment, so towards the bottom of band three.[7] Given the drug was cocaine, as opposed to methamphetamine, in accordance with Cavallo v R, the Judge reduced the eight years by five per cent, and thus arrived at her starting point of seven years and seven months’ imprisonment.[8]
[7]At [19].
[8]At [19], citing Cavallo v R [2022] NZCA 276, (2022) 30 CRNZ 726.
The Judge did not apply an uplift for Mr Holland’s prior convictions, reasoning that these were the result of his addiction to methamphetamine, and were mostly “low level”.[9]
[9]Judgment under appeal, above n 1, at [20].
As to personal mitigating factors, the Judge declined any reduction for Mr Holland’s guilty plea, given that it came at the last possible moment and offered no meaningful benefit.[10] However, the Judge did allow a 15 per cent reduction for Mr Holland’s addiction, considering that one cause of his offending.[11] She also allowed a five-month reduction for time Mr Holland had spent on electronically‑monitored (EM) bail.[12] Mr Holland had spent 332 days, about 11 months, on EM bail. Several breaches were recorded, so the five months might be considered generous, particularly as the Judge’s note suggested that Mr Holland had offended whilst on bail.[13]
[10]At [21].
[11]At [22].
[12]At [23].
[13]At [22].
These reductions brought the end sentence to six years’ imprisonment.[14]
Discussion
[14]At [25].
Mr Huda, counsel for Mr Holland, submits the starting point was too high and ought to have been in the region of six years and three months’ imprisonment, being one year and four months less than that adopted by the Judge.
There is no dispute that the quantity of the drug put Mr Holland in band three of Zhang. However, Mr Huda submits the nature of Mr Holland’s role places him on the cusp of the top-end of “lesser” and the bottom-end of “significant” as set out in Berkland.
We are unable to accept that submission. Mr Holland had the tracking number, Ms Halliburton acted at his direction, and he had an operational function. In addition, the Judge was correct to infer an element of commercial gain, not least because of Mr Holland’s offer to pay Ms Halliburton the sum of $10,000. Judge Farish had the benefit of hearing the Crown evidence, and Ms Halliburton’s evidence. She would have obtained a good appreciation of Mr Holland’s role, including his direction of Ms Halliburton, as a consequence. Mr Holland’s role was well inside the “significant” category.
Mr Huda submits the Judge fell into error when, on his submission, she “brushed aside” a factor he contends is both crucial and obvious, namely that when Mr Holland offered the money to Ms Halliburton he was being pressured, influenced, and intimidated by someone higher in the chain of command. He may have been. We expect that will often be the case. However, that Mr Holland offered such a sum suggests that he himself was to receive a substantial reward for his participation.
The other cases to which Mr Huda referred as entailing more serious offending, and attracting lower or equivalent starting points, are R v Hokai and R v Dos Santos.[15] In Hokai, Downs J adopted a starting point of eight years’ imprisonment for what on its face might appear to be more serious offending, and offending involving methamphetamine at that.[16] In Dos Santos, Lang J took a starting point of seven years’ imprisonment for an offender who pleaded guilty to a charge of importing 610 grams of cocaine, and two charges of being in possession of the drug for supply.[17] Again, on its face, that appears more serious.
[15]R v Hokai [2023] NZHC 2113; and R v Dos Santos [2023] NZHC 966.
[16]R v Hokai, above n 15, at [10].
[17]R v Dos Santos, above n 15, at [7].
However, as Crown counsel, Ms Fenton, submits, the important distinguishing factor in this case is Ms Halliburton. Mr Holland led her into offending, including burglary, and she was acting at his direction. There is no indication in the cases to which Mr Huda referred that those offenders prevailed upon anyone else to offend.
We are not persuaded the Judge’s starting point was too high. Even if it may have been a little less (and we do not accept that it should have been), the Judge’s reductions for mitigating factors can be described as generous. The end sentence was not manifestly excessive.
Result
The application for an extension of time to appeal is granted.
The appeal against sentence is dismissed.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
0
4
0