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…

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

AGLC: Oliver v R [2014] NZCA 285
Case: [2014] NZCA 285
Decision Date: 30 June 2014 at 11.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand was asked to consider an appeal against a sentence imposed on Andrew John Oliver. The appellant was sentenced to five years’ imprisonment following his guilty pleas to charges of possession of methamphetamine for supply and possession of equipment with intention to manufacture methamphetamine. The appeal against the sentence was dismissed by the Court of Appeal. The Court found that the appellant had been on parole at the time of the offending and had been subject to a recall order on an earlier sentence. The appellant argued that the time spent in custody following the recall on the earlier sentence should have been taken into account when sentencing. The Court of Appeal considered that if the sentencing Judge had been aware of the parole position, they would have made an allowance for the time spent in custody which did not count as pre-sentence detention. However, the Court found that the sentence imposed was not manifestly excessive. The Court also considered the extent of credit for the guilty plea, finding that the 10% allowance for the plea entered on the morning of the trial was appropriate. The appeal was dismissed.

Orders