Oliver v R
[2014] NZCA 285
•30 June 2014 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA16/2014 [2014] NZCA 285 |
| BETWEEN | ANDREW JOHN OLIVER |
| AND | THE QUEEN |
| Hearing: | 16 June 2014 |
Court: | White, Keane and MacKenzie JJ |
Counsel: | G A Anderson for Appellant |
Judgment: | 30 June 2014 at 11.30 am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
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REASONS OF THE COURT
(Given by MacKenzie J)
The appellant appeals against a sentence of five years’ imprisonment imposed by Judge Hinton in the Auckland District Court following guilty pleas on charges of possession of methamphetamine for supply and possession of equipment with intention to manufacture methamphetamine.[1] There are two issues:
(a)whether allowance should have been made for time spent in custody following recall on an earlier sentence; and
(b)the extent of credit for a guilty plea.
[1]R v Oliver DC Auckland CRI-2012-004-4922, 20 September 2013. Five years’ imprisonment was imposed in relation to the possession for supply charge and a 12 month concurrent sentence on the possession of equipment charge.
The first charge, possession of equipment, arose from a fire at the appellant’s brother’s home on 26 September 2011. Following the fire, police and ESR found equipment required for the manufacture of methamphetamine at the address. The appellant was not then apprehended. The second charge, possession of methamphetamine, followed execution of a search warrant at another address on 22 March 2012. The appellant was found at the address with about 12 grams of methamphetamine and related paraphernalia. He was arrested and remained in custody until sentence.
The appellant was on parole at the time of the offending. He had been sentenced to four years and nine months’ imprisonment for manufacturing methamphetamine and related charges in 2007. He was released on parole on 18 May 2009. Following the discovery of the equipment in September 2011, an interim recall order was made on 30 September 2011. After his arrest in March 2012, a final recall order was made on 18 May 2012. From his arrest on 22 March 2012 until the sentence expiry date of his earlier sentence on 17 December 2012, his detention in custody was pursuant to the earlier sentence. From 17 December 2012 until sentencing on 20 September 2013, his detention was on remand on the two current charges.
Under s 90 of the Parole Act 2002 (the Act), time spent in pre-sentence detention is deemed to be time served on the sentence subsequently imposed. Pre-sentence detention is defined in s 91 of the Act. It does not include time spent in a prison following an application for a recall order for a previous offence, in the circumstances which apply here.
The broad effect of those provisions is that the time spent in custody following the sentence expiry date of the earlier sentence, from 17 December 2012 to 30 September 2013, is counted as time served in pre-sentence detention under s 90. However, the time spent in custody between the appellant’s arrest on 22 March 2012 and the sentence expiry date on 17 December 2012 is not.
The sentencing Judge was not made aware of the parole position. He accordingly made no allowance for the period spent in custody.
This Court in R v Paul recognised that the time spent under recall pursuant to an earlier sentence can be taken into account by a sentencing judge, and recognised by the allowance of a discount.[2] However, under s 9(1)(c) of the Sentencing Act 2002, the fact that the offending occurred while the appellant was still subject to a sentence is an aggravating factor. As this Court noted in Clunie v R, an uplift on that account may be appropriate.[3]
[2]R v Paul CA409/05, 26 April 2006.
[3]Clunie v R [2013] NZCA 110 at [22].
Mr Anderson for the appellant submits that because the Judge was not made aware of the parole position, the matter could be sent back to the sentencing Judge for reconsideration of the sentence, or alternatively that this Court should deal with the matter. We do not think that it is appropriate to refer the matter back for reconsideration by the sentencing Judge.
Had the sentencing Judge been aware of the parole position, we consider that he would have made allowance for the time spent in custody which did not count as pre-sentence detention. The calculation for that allowance is not necessarily a purely mathematical one, to make the allowance exactly equal to the time spent in custody. Further, the Judge would have had to consider an uplift to reflect the fact that the appellant offended while on parole. The two adjustments would, to some extent at least, cancel each other out.
The maximum allowance that could have been made for the time spent in custody on recall would have been about nine months, to reflect the period between March and December 2012. The fact that the two offences were separate, and were both committed while the appellant was on parole, would have justified a significant uplift. An uplift of nine months would not have been out of the available range. In Waterworth v R, an effective uplift of nine months, reflecting the period in custody on recall, was held appropriate for drug offending.[4] In Blackmore v R, an uplift of six months was imposed for four dishonesty offences committed on parole.[5] In Ellis v R,[6] and Vernon v R,[7] uplifts of 12 months to reflect both previous convictions and offending on parole were upheld. In this case, the Judge imposed an uplift of six months for previous offending. On this appeal, the question is whether the end sentence was manifestly excessive. The potential difference between the credit for time spent in custody on recall and the uplift for offending while on parole is not so great as to result in an end sentence which is manifestly excessive.
[4]Waterworth v R [2012] NZCA 58.
[5]Blackmore v R [2014] NZCA 109.
[6]Ellis v R [2012] NZCA 513.
[7]Vernon v R [2010] NZCA 308.
The next matter is the credit of 10 per cent for the guilty pleas. The pleas were entered on the morning of the trial. Counsel for the appellant submits that the pleas were entered immediately after the Crown agreed to offer no evidence on a separate allegation of manufacturing methamphetamine, and accordingly were entered at the earliest opportunity, justifying a greater credit than that given.
We consider that the 10 per cent allowance for a guilty plea entered on the morning of trial was a generous one. The opportunity to enter the plea to the two counts was available earlier. A delayed plea entered immediately after other charges have been withdrawn, following negotiations with the Crown, does not necessarily attract a similar discount as a guilty plea entered at the first opportunity.[8]
[8]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62].
For these reasons, we are satisfied that the discount for the plea allowed was appropriate and has not resulted in a manifestly excessive sentence.
On both aspects, therefore, we consider that the sentence imposed was not manifestly excessive. The appeal is dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent
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