GORDON MARK HOLLAND AND THE KING - [2024] NZCA 491

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA755/2023
[2024] NZCA 491

BETWEEN	GORDON MARK HOLLAND Appellant
AND	THE KING Respondent

Hearing:	28 August 2024
Court:	Cooke, Peters and Grice JJ
Counsel:	E Huda for Appellant J G Fenton for Respondent
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.…

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.

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Details

Case: [2024] NZCA 491
Decision Date: 27 September 2024 at 10.30 am

CaseChat Overview and Summary

The appeal was brought by Mr Gordon Mark Holland, who was aggrieved by a sentence of six years’ imprisonment imposed by the District Court. The appeal was against the length of the sentence, which Mr Holland found to be manifestly excessive. The appeal was heard by Cooke, Peters, and Grice JJ in the Court of Appeal of New Zealand. The appeal was dismissed, and the application for an extension of time to appeal was granted.

The legal issue in this case was whether the sentence imposed on Mr Holland was manifestly excessive. The District Court had set a starting point of seven years and seven months’ imprisonment, taking into account the quantity of the drug intercepted, Mr Holland’s role in the importation, and the commercial element of his participation. The Court of Appeal was required to consider whether the Judge had erred in setting the starting point and whether the end sentence was manifestly excessive.

The Court of Appeal found that the Judge had not erred in setting the starting point of seven years and seven months’ imprisonment. The Judge had considered Mr Holland’s role in the importation, including his direction of Ms Halliburton, and had inferred an element of commercial gain. The Court of Appeal also found that the end sentence of six years’ imprisonment was not manifestly excessive, given the generous reductions for mitigating factors. The Court of Appeal dismissed the appeal against sentence.

The Court of Appeal granted the application for an extension of time to appeal, as the delay was relatively short and the Crown did not oppose it. The appeal against sentence was dismissed, and the sentence of six years’ imprisonment was upheld.

Orders