Holdem v Police HC Christchurch CRI 2010-409-93

[2010] NZHC 1370

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000093

MICHAEL SCOTT HOLDEM

Appellant

v

POLICE

Respondent

Hearing:         5 August 2010

Appearances: S L Litt for Appellant

S J Jamieson for Respondent

Judgment:      5 August 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      In August 2009 the appellant, Mr Holdem, pleaded guilty to a charge of conspiracy to supply methamphetamine.  The previous month he had pleaded guilty to another charge, of conspiring to supply cannabis.  He was duly convicted of both charges and sentenced in the District Court to concurrent terms of imprisonment for three  years.   The sentence of three  years  that was imposed  was  cumulative on

another sentence he was serving at the time.

HOLDEM V POLICE HC CHCH CRI-2010-409-000093  5 August 2010

[2]      Mr Holdem appealed against both conspiracy sentences, but his appeal was dismissed by this Court in December 2009.

[3]      Mr Holdem now seeks to appeal his conviction in respect of the conspiracy to supply methamphetamine charge.  He does so on two grounds:

i)That he pleaded guilty under a misapprehension: namely that by  pleading  guilty  the  police  would  drop  a  charge  of possession for supply against his mother.

ii)       That he has an arguable defence to the charge.

[4]      At this morning’s hearing, his counsel, Ms Litt’s primary focus was on the first ground.  At the time she filed the notice of appeal, Ms Litt was not in possession of the full police file.  That has now been made available to her and, since reading the material, she now responsibly acknowledges that the Crown’s case was stronger than originally understood.

[5]      A third ground, namely that Mr Holdem’s guilty plea was the result of a misapprehension about likely sentence, has been abandoned.

[6]      In support of his appeal, Mr Holdem has sworn an affidavit and has also furnished an affidavit from the lawyer who represented him at the time the guilty plea was entered, Mr Fournier.  For its part, the Crown has filed an affidavit from the police file-holder, Detective Boyd.

[7]      As will be readily apparent, the appeal is well out of time, the notice of appeal only being filed on 1 July.   However, while the Crown did not consent to leave being granted, it was prepared to argue the case on its merits.

[8]      The issues raised by the appeal are in my view worthy of ventilation, and there are also explanations for some parts of the delay.  In those circumstances I am satisfied it is appropriate to grant leave to bring the appeal out of time.

Factual background

[9]      In February 2009 the police commenced a special operation after receiving information that Mr Holdem’s mother was sending methamphetamine to him in prison.

[10]     Between 1 April and 6 May 2009, police intercepted phone communications between Mr Holdem from prison and his mother.

[11]     On 14 April 2009 the mother posted a parcel addressed to Mr Holdem in prison.  The parcel was intercepted by prison staff.  It contained three books, one of which was found to have 1.5 grams of methamphetamine concealed in the spine. The methamphetamine was inside several small snaplock bags, together with a number of similar sized bags that were empty.

[12]     On 4 May 2009 police executed a search warrant at the mother’s address. They discovered 6.1 grams of methamphetamine and 250mg bags in a safe in her bedroom, together with $14,200 in cash, as well as a ticklist indicating records of sale.

[13]     When interviewed by police, the mother admitted having sent another book containing one gram of methamphetamine to Mr Holdem in prison prior to the 14

April parcel.

[14]     During the interview she also stated that Mr Holdem had been arranging the sales and importing of drugs into the prison for “not very long, six months or under, really only the last few months I would say”.

[15]     The appellant and his mother were both charged with conspiring with each other to supply cannabis and methamphetamine to unknown inmates at Christchurch Mens Prison.  The period of conspiracy alleged in respect of the supply of cannabis was between 1 and 15 April 2009, and in the case of the methamphetamine charge the period of the conspiracy was alleged to be between 1 December 2008 and 4 May

2009.

[16]     In addition to the two conspiracy charges, the mother was also charged with possession of methamphetamine for supply.

[17]     In July 2009 the mother’s lawyer initiated discussions with Detective Boyd about a possible plea proposal.   It was along the lines that if the mother pleaded guilty to the two conspiracy charges at her next appearance, then the possession for supply would be withdrawn.

[18]     It is common ground that Detective Boyd discussed the proposal not only with the mother’s solicitor, but also with Mr Holdem’s counsel, Mr Fournier.  It is also common ground that he confirmed the agreement with the mother’s counsel after conferring with Mr Fournier.

[19]     What is disputed in the affidavit evidence is whether Mr Holdem was part of the arrangement.   Mr Fournier says in his affidavit that Detective Boyd told him police would withdraw the charge of possession for supply against Mrs Holdem on the basis that Mr Holdem pleaded  guilty to the charge of conspiring to supply methamphetamine.  Detective Boyd, for his part, says that while it is likely he would have encouraged a plea from Mr Holdem, he did not tell Mr Fournier that the police acceptance of the mother’s proposal was dependent on Mr Holdem pleading guilty.

[20]   However, it is clear, regardless of Detective Boyd’s intentions, that the impression he gave both Mr Fournier and the mother’s lawyer is that Mr Holdem was part of the arrangement.   Based on the material before me, I consider it was reasonable for the two lawyers to have gained that impression, which in turn was conveyed to Mr Holdem.

[21]     The plea arrangement was confirmed on 3 August 2009.  On 12 August 2009

Mr Holdem pleaded guilty to the methamphetamine charge.  He had already pleaded guilty to the cannabis charge on 1 July.

[22]     As I have mentioned, Mr Holdem was sentenced to a term of imprisonment of three years.  The sentencing took place on 7 October 2009, at which time the plea proposal to the mother was still “on the table”.

[23]     For reasons that I need not traverse, the mother never entered pleas prior to committal, and in November 2009 when the Crown solicitor became seized of the matter, the mother was advised that the plea proposal was no longer available.  The mother eventually pleaded guilty to all three charges on 23 March this year.

[24]     Meantime Mr Holdem, as I have also already mentioned, had appealed his sentence, that appeal being dismissed in December 2009.  He sought to appeal to the Court of Appeal against sentence, but was advised that special leave would not be granted given the circumstances.   It was at that point attention was turned to an appeal against conviction.

Discussion

[25]     As Ms Litt acknowledges, it is only in exceptional circumstances that an appeal against conviction will be entertained after sentence following the entry of a plea of guilty.  This is especially so when the defendant has been represented by very experienced counsel such as Mr Fournier, and when there is no complaint that can or has been made about the quality of Mr Fournier’s advice.

[26]     The over-riding principle is that an appellant must show a miscarriage of justice will result if the conviction is not overturned.  It has also been said that where an appellant fully appreciates the merits of his position and makes an informed decision to plead guilty, a conviction based on the guilty plea cannot be impugned.

[27]     In R v Le Page [2005] 2 NZLR 845, the Court of Appeal identified three categories of circumstances which could give rise to a miscarriage of justice following a guilty plea:

i)Where an appellant did not appreciate the nature of the charge, nor intend to plead guilty to the particular charge.

ii)Where, on the admitted facts, the appellant could not in law have been convicted.

iii)Where the guilty plea arose from an erroneous ruling on a question of law.

[28]     Ms Litt accepted that the second and third categories have no application to this case.  However, she submitted that the plea arrangement or agreement with the police meant that the case did come within the first category of a misapprehension.

[29]     I am not persuaded that category (i) is in fact engaged.  Category (i) is about mistakes or misunderstandings regarding the nature of the charge or the legal effect of entering a guilty plea.

[30]     That said, the fact a case does not fit within one of the three established categories from Le Page is not necessarily fatal.  It is now well established that the three categories are not exhaustive.

[31]     Ms Litt effectively submits that I should recognise a new category, which she styled ‘abuse of process’, on principles similar to those espoused in such cases as Delellis v R (1989) 4 CRNZ 601 and Fox v Attorney-General [2002] NZLR 62 (CA) in the context of stay applications.

[32]     While  Ms  Litt  does  not  allege  any  wrongdoing  against  the  police,  she contends that Mr Holdem has been unfairly prejudiced.  She submits he only pleaded guilty because of the plea arrangement, and that it is only right he should be put back in the position he would have been in had the plea arrangement never been made.

[33]     Ms Litt submitted that Mr Holdem should be able to reconsider his position, and says that should happen regardless of how strong or overwhelming the police case against him might be.

[34]     In my view, the principles that apply in the case of a stay application are not directly transferable when a guilty plea is in issue, especially when the person who has entered the  guilty plea has been represented by competent and  experienced counsel.  Different considerations arise.

[35]     In my view the fact of the plea arrangement or agreement would not, in itself, be enough to warrant the quashing of the conviction in the absence of a real question about the guilt of the appellant.   It is therefore necessary for me to examine the strength of the police case.

[36]     Before doing so, I should also, for completeness, note that an issue of undue pressure was also raised.   In his affidavit, Mr Holdem asserted that he had come under extreme pressure from his family in entering his guilty plea.   The fact that someone may have come under improper pressure to plead guilty has been held to be capable of constituting a miscarriage of justice: see Keegan v R [2010] NZCA 247.

[37]     However, in this case there is insufficient evidence to support a conclusion that Mr Holdem’s will was overborne by such pressure, to the extent that his guilty plea was entered without him having a genuine consciousness of guilt.  In particular, I refer to the fact that unlike the accused in Keegan, Mr Holdem was represented by an experienced counsel who did not put him under any pressure whatsoever.  It was clear from Mr Fournier’s affidavit that it was Mr Holdem who instructed him that he would plead guilty, rather than the other way round.  Further, there is no evidence before the Court as to discussions between Mr Holdem and his mother about the plea.   As Ms Jamieson also points out, I am entitled, in considering the matter of pressure, to have regard to Mr Holdem’s experience with the criminal justice system, his knowledge of the process and the advantages to be obtained by pleading guilty, such as a discount for a guilty plea.

[38]     I am not satisfied that Mr Holdem was operating under extreme pressure from his family such as to constitute a miscarriage of justice.  It is clear that the fact of pressure per se is not enough.

Strength of the police case

[39]   It was common ground that the elements of conspiracy to supply methamphetamine are as follows:

i)        Two or more people agreed to supply methamphetamine.

ii)The objective of their agreement is an offence, namely the offence of supplying methamphetamine.

iii)The accused joined in that agreement, either at the outset or during its continued existence.

iv)      The accused intended the agreement be put into effect. [40]    The police evidence against Mr Holdem consists of the following:

•         Intercepted conversations between him and his mother.

•         The contents of the intercepted parcel.

•Evidence of the intercepted parcel being addressed to Mr Holdem and posted by his mother on the very day that he had earlier told her to post it.

•Evidence obtained upon search of his cell, including a diary with what is said to appear to be a ticklist.

•         The evidence obtained on the search of the mother’s address.

•         Statements made by Mr Holdem, and in particular by his mother.

•His access to the TAB account which police say was used for the drug dealing monies.

•         Evidence of the fact of the mother’s conviction.

[41]     Ms Litt submits that Mr Holdem has a tenable or arguable defence on the following basis.

[42]     First is it is submitted it would be open to a jury to conclude on the evidence that the methamphetamine was solely for Mr Holdem’s personal use, and not for

supply for others.   This is an assertion made by Mr Holdem in his affidavit.   He acknowledges receipt of the first book containing the one gram of methamphetamine but says he is a drug addict.

[43]     Secondly, it is contended that any reference to drug dealing matters in the intercepted  phone  communications  is  capable  of  being  referable  solely  to  the cannabis dealing, which Mr Holdem admits.

[44]     A third argument raised was that the six-month period of the conspiracy is unsustainable, having regard not only to the mother’s statement, but the fact that Mr Holdem was not in Christchurch Mens Prison during the whole of that period.

[45]     There is some uncertainty among the authorities as to whether or not a person can be guilty of conspiring to supply drugs to themselves.   The decision of R v Richards (1992) 9 CRNZ 403 would suggest it is technically possible.  Doubt has been cast on that proposition in other cases, although those other cases, unlike the present one, appear to involve only a single transaction: see the discussion in R v Lang (1998) 16 CRNZ 68 at 71; R v Edwards HC Rotorua T991464, 3 August 1999, Chambers J.

[46]    However, I accept it is undoubtedly an arguable proposition that if the methamphetamine was solely for Mr Holdem’s personal use he could not be guilty of the offence of conspiracy.

[47]     I also accept that some of the discussion in the intercepted communications about drug dealing could be capable of being interpreted as referable to cannabis. There is possible ambiguity in some passages but not however in all.  In my view the evidence of supply of methamphetamine to other prison inmates is actually very strong.  I refer, for example, to the following evidence:

i)The fact that there were empty or spare bags accompanying the methamphetamine that was concealed in the book.

ii)During a discussion about the second book, Mr Holdem is recorded as having asked his mother “What have you done with the new one?  Have you put an extra bit in there for me?” If this methamphetamine was solely for his own use he would not have asked that question.

iii)The mother admits in her statement to the police that the discussion was a discussion about methamphetamine.  That is clear, in my view, from some of the descriptives used by the two of them.

iv)There is a discussion about the TAB account and movements of various monetary payments.   Mr Holdem is recorded as having said “So that way when I get my new books I can start afresh again.”  In my view it is not tenable to suggest that the reference to books could be a reference to supply of cannabis. The evidence is that cannabis was smuggled into the prison by quite a different means, through being concealed on a person. The cannabis had nothing to do with books.

[48]     In my view, an inference that all of the discussion was referable to cannabis is simply not a tenable inference.   I do not consider it can be said the police case would  be  unlikely  to  succeed  or  that  there  is  a  realistic  possibility  of  it  not succeeding.  I consider the evidence, albeit circumstantial, to be compelling.

[49]     I also accept the Crown’s submission that an argument about the date of the conspiracy would not in itself afford a defence.   The dates were based upon the mother’s statement to the police.   There is evidence that it was during the period charged that the agreement had been formed.  The fact that Mr Holdem was in another prison during some of this six-month period would not have stopped him from communicating with his mother.   Indeed the evidence shows they were in regular communication with each other.  As Ms Jamieson also points out, a dispute about timeframe is a matter bearing on sentence, and a disputed fact hearing could have been held at the time.  I note, too, having read the decision of this Court in the

sentence appeal in December 2009 that the period of the conspiracy does not appear to have been raised as an issue.

Outcome

[50]     The outcome of this appeal is therefore that no grounds have been established to satisfy the test that the guilty plea should be set aside.   Mr Holdem has not satisfied me there has been a miscarriage of justice.   Appellate intervention is not warranted.  The appeal is therefore dismissed, and the conviction confirmed.

Solicitors:

S L Litt, Christchurch

Crown Solicitor’s Office, Christchurch