R v Holt

[2008] NZCA 388

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA157/2008
[2008] NZCA 388

THE QUEEN

v

MELANIE GINA HOLT

Hearing:20 August 2008

Court:Robertson, Cooper and Winkelmann JJ

Counsel:M J Robb for Appellant

M A Woolford for Crown

Judgment:25 September 2008  at 10.30 am

JUDGMENT OF THE COURT

ATHE APPEAL AGAINST CONVICTION IS ALLOWED ON THE COUNTS ON WHICH MS HOLT HAD PREVIOUSLY BEEN DISCHARGED UNDER S 347 OF THE CRIMES ACT 1961 ON 12 FEBRUARY 2007, NAMELY:

(a)conspiring to defeat the course of justice contrary to s 116 of the Crimes Act 1961;

(b)possession of the class B controlled drug morphine for the purpose of supply contrary to s 6(1) of the Misuse of Drugs Act 1975;

(c)possession of a precursor substance for the purpose of manufacturing the class A controlled drug heroin contrary to s 12A(2)(b) of the Misuse of Drugs Act 1975;

(d)supply of the class A controlled drug methamphetamine contrary to s 6(1)(c) of the Misuse of Drugs Act 1975; and

(e)       possession of a methamphetamine pipe contrary to s 13(1)(a) of the Misuse of Drugs Act 1975.  

B        The sentence of five years’ imprisonment for possession of methamphetamine for supply is quashed and substituted with a sentence of four years’ imprisonment. 

CThe three year sentence imposed for possession of heroin for supply and the one year sentence for charges under the Arms Act are confirmed.

DAll sentences are to be served concurrently.  The effective sentence is four years’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

The issue

[1]       This appeal against conviction and sentence is limited to a narrow compass, namely the effect of a s 347 discharge granted in the High Court and whether such an order is reviewable by the High Court, or is final and cannot be reviewed.  It is common ground that if the conviction appeal is allowed there will have to be an adjustment to the effective sentence imposed.

Litigation history

[2]       Ms Holt was committed for trial on one count of attempting to pervert the course of justice, eight charges under the Misuse of Drugs Act 1975 and two charges under the Arms Act 1983.  At the time, she was represented by Mr Hewson.

[3]       She was one of a substantial number of people charged with interrelated offences.  Those charged were formally arraigned and the jury empanelled in the High Court at Hamilton on 5 February 2007.  The case was adjourned for a week to allow the jury to prepare for what was anticipated to be a trial of up to 12 weeks.

[4]       During those seven days, a number of the accused entered guilty pleas.  On 12 February 2007 Ms Holt sought leave to withdraw her pleas of not guilty and to enter pleas of guilty to two of the charges she faced (possession of heroin and possession of methamphetamine for the purposes of supply).

[5]       Ms Holt was rearraigned and she entered the two pleas of guilty before the jury. 

[6]       Lang J transferred the two Arms Act offences to the District Court for trial.  The Crown offered no evidence on the remaining seven counts, and the Judge discharged Ms Holt.  Although it was not expressly stated by the Judge, it is agreed that these discharges must have been entered under s 347 of the Crimes Act 1961.

[7]       Prior to the anticipated sentencing, Ms Holt changed counsel. Her new counsel, Mr Robb, indicated he had instructions to seek to withdraw the two guilty pleas.

[8]       Following a hearing on 12 and 13 July 2007, in a reserved decision of 26 October 2007 Heath J granted Ms Holt leave to withdraw the pleas of guilty: R v Holt HC HAM CRI 2006-419-167 26 October 2007.  In the same decision, Heath J made an order setting aside the s 347 discharges that had been entered by Lang J, and reinstating the counts in respect of which they were made.  Heath J opined that:

[37]     The more difficult question is whether the application to withdraw the guilty pleas should, in any event, be dismissed because of the advantages Ms Holt has gained from the Crown’s election, in reliance on her pleas, to offer no evidence on remaining serious charges.

[9]       After consideration, Heath J concluded that the charges in respect of which Lang J had ordered discharges should be reinstated upon Ms Holt being granted leave to change her pleas, on the basis that the s 347 discharges had been “directed on a material mistaken premise” (at [49]). 

[10]     At the commencement of the trial on all charges on 18 February 2008, there was an application for an order which Harrison J (R v Holt HC HAM CRI 2006-419-167 18 February 2008) described as:

[4]       … effectively setting aside as a nullity Heath J’s decision to reinstate the nine discharged counts: …

[11]     Harrison J held that he had no jurisdiction to review Heath J’s orders, but that even if he had he would have declined to do so as what the Judge had done was, in his view, “plainly correct” (at [7]).

The High Court trial

[12]     In consequence, Ms Holt faced trial on an indictment which included eleven counts: the two counts upon which she had been permitted to change her pleas to not guilty, the seven on which she had originally been discharged, and the two Arms Act offences.

[13]     Ms Holt pleaded not guilty to all but a charge of possession of a methamphetamine pipe.  In the course of the trial she was discharged on two counts of supplying heroin and morphine on the basis that there was insufficient evidence.  The jury found her guilty on the other eight counts.

[14]     Ms Holt was subsequently sentenced by Harrison J on 28 February 2008 to an effective term of five years’ imprisonment.  The sentence was imposed on the charges of possession of methamphetamine for supply and of supplying methamphetamine, and concurrent terms of imprisonment were imposed on the other counts.

The appeal

[15]     The question for the Court is whether Heath J was wrong to reinstate the counts in respect of which s 347 discharges had been granted.

[16]     Mr Robb argued that if Ms Holt had been tried only in respect of the two counts upon which she was given leave to withdraw her pleas of guilty, her sentence would have been less than five years’ imprisonment.  Since both Heath and Harrison JJ erred, Mr Robb submitted, the sentence that resulted is unsustainable.

[17]     Upon Ms Holt’s application to change her pleas Heath J was satisfied, on the basis of a conventional application of clear principles (see R v Ripia [1985] 1 NZLR 122 (CA)) that, because of her personal circumstances and the nature of her pre-trial counsel’s advice to her, there was a reasonable possibility of not guilty verdicts on the two charges to which Ms Holt had pleaded guilty. Accordingly, Heath J granted leave to change the pleas, but simultaneously ordered that the charges in respect of which Ms Holt had earlier been discharged be reinstated, as the two sets of charges were intertwined.

[18]     Before Harrison J, Ms Holt submitted that Heath J’s reinstatement order was wrong in law.  However, in his ruling of 18 February 2008 Harrison J considered that:

[8]       Ms Holt cannot hold out to the Crown that she will enter pleas of guilty to two charges in exchange for its agreement not to offer evidence on the remaining nine charges and then at a later date obtain leave to vacate her pleas of guilty to the two relevant charges while maintaining the benefit of the Crown’s agreement.  The administration of justice would be cast into disrepute if a Judge of this Court sanctioned that result. …

[19]     The answer to the question on appeal depends on the effect of the s 347 orders.  As far as relevant, that section provides:

(1)       Where any person is committed for trial, the Judge may, in his discretion:

(a)of his own motion or on the application of the prosecutor or the accused; and

(b)after giving both the prosecutor and the accused reasonable opportunity to be heard on the matter; and

(c)after perusal of the deposits and consideration by the prosecutor or the accused – of such other evidence and other matters as are submitted for his consideration by the prosecutor or the accused –

direct that no indictment shall be filed, or, if an indictment has been filed, direct that the accused shall not be arraigned thereon; and in either case direct that the accused be discharged.

…

(4)A discharge under this section shall be deemed to be an acquittal.

…

The appellant’s case

[20]     Mr Robb contended that a straightforward reading of s 347(4) prevented reinstatement of counts which had been the subject of a discharge, because that subsection deemed discharges to be acquittals. 

[21]     Counsel acknowledged that if, when the guilty pleas had been entered, Lang J had simply adjourned consideration of the rest of the counts until after sentencing there would have been no problem.  The practice in England in circumstances like this, where the remaining charges stay on the file and are not proceeded with without the leave of the Court or the Court of Appeal, would also have permitted their reconsideration.  But because the Judge took the step of discharging Ms Holt, it was not possible to reinstate the charges.

[22]     Mr Robb accepted that the High Court can review a s 347 discharge made in the District Court, although will do so only sparingly.  However, he stressed there was no power for the High Court to judicially review its own s 347 decisions. 

[23]     He noted that this Court in Auckland District Court v Attorney-General [1993] 2 NZLR 129 at 133, said that:

It is the task of the High Court to determine those limits [orders in the District Court] and it does so by the process of judicial review.  But the High Court cannot review its own decisions; it must determine its own jurisdiction and, if it is responsible for an irregularity, the defect must be corrected by the Court itself or on appeal: see Isaacs v Robertson [1985] AC 97, per Lord Diplock at page 103.

[24]     Counsel referred to Butterfield v R [1997] 3 NZLR 760 (HC) in which it was held that a Court is functus officio once judgment has been finally ordered and that there is no inherent jurisdiction to set aside an order.  He also noted that this Court in R v Nakhla (No 2) [1974] 1 NZLR 453, in dealing with the issue of rehearing an appeal, had approved the proposition that once a court’s judgment is finally recorded its inherent power to vary the order dissolves, but that if the order is a “nullity”, then the court has the inherent jurisdiction to set that “nullity” aside.

[25]     Reference was made to what was said by this Court in R v Smith (2002) 20 CRNZ 124 at [35]:

… the Court has inherent power to revisit its own decisions in exceptional circumstances when required by the interests of justice.  Such power is part of the implied powers necessary for the Court to ‘maintain its character as a Court of justice’.  Recourse to the power to reopen must not undermine the general principle of finality.  It is available only where a substantial miscarriage of justice would result if fundamental error in procedure is not corrected, and where there is no alternative effective remedy reasonably available.  Without such response, public confidence in the administration of justice would be undermined.

[26]     On the strength of these authorities Mr Robb submitted that the inherent jurisdiction to revisit decisions is limited and only to be used in exceptional circumstances where necessary to remedy “fundamental errors in procedure”.  He submitted that the original order must be tainted by manifest error, and that there must be demonstrable injustice in sustaining the order.

[27]     Mr Robb noted that under s 347(1)(c) a Judge must “peruse the depositions before making a decision to discharge” and that the Judge has no independent jurisdiction to exercise the discretion to discharge in order to implement a plea bargain.  Mr Robb submitted that the Crown, having elected not to offer evidence on the counts in respect of which Ms Holt was discharged, indicated to the Court that the accused’s criminality was adequately reflected in the counts to which she had pleaded guilty.  Having made this election, Mr Robb argued it was not open to the Crown to attempt to change its prosecutorial course upon Ms Holt’s change of pleas. 

[28]     The appellant also argued that to allow the s 347 discharges to be undone would be contrary to s 26(2) of the New Zealand Bill of Rights Act 1990 (“NZBORA”), which provides:

26Retroactive penalties and double jeopardy

…

(2)        No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.

[29]     It was submitted that when considering the application to withdraw the guilty pleas, the Judge should have turned his attention to the fact that the appellant had already been discharged on the other counts.  If, considered in this context, granting leave to amend the pleas would have allowed Ms Holt to profit from reneging on what might have been viewed as a plea bargain, then leave to amend the pleas should have been refused.  But it is not proper to grant leave and then attempt to remedy the perceived problems that flow from that by reinstating the discharged counts.

[30]     The appellant challenged Heath J’s reliance upon Fox v Attorney-General [2002] 3 NZLR 62 (CA) which, it was submitted, is an unconvincing analogue to the circumstances of this case. It was also submitted that the approach in Philips v Philips [1993] 3 NZLR 159 (CA) (dealing with the setting aside of a consent order on the basis of mutual mistake) could not inform the assessment in this case because the law of mistake is inapt in the criminal law context.

Crown’s position

[31]     The Crown substantially supported the approach of Heath J and noted that although a discharge under s 347 is deemed to be an acquittal, there was not an absolute bar to a reconsideration.

[32]     The Crown submitted that it was appropriate to look at the reality of what had occurred in this case.  The discharge was a consequence of, and dependent upon, the pleas of guilty which had been entered.  It was noted in particular that the Crown had simply not offered evidence on those counts.  Therefore there was no judicial evaluation of the merits of the charges nor a reasoned conclusion that there was no criminal liability in respect of those charges.

[33]     Mr Woolford also drew to our attention the provisions of s 381A of the Crimes Act as inserted from 26 June 2008 by s 9 of the Crimes Amendment Act (No 2) 2008.  Although not applicable to this proceeding, the new section does permit appeals by way of case stated on a question of law where proceedings have been determined by an order that an accused be discharged under s 347.

[34]     The Crown cited Fox in support of its argument that the reinstatement of the discharged counts was supportable because it caused no unfairness or prejudice.  On this view, the effect of Heath J’s approach was simply to put Ms Holt back in the position in which she had been prior to her rearraignment. 

[35]     Consideration was given also to whether it could properly be said that Ms Holt was in “jeopardy” in respect of the counts which were subject to the s 347 discharges.  As she was not in peril of conviction (in terms of the test under s 358(1)), the Crown submitted that the present case could not be considered one of double jeopardy.   Section 26(2)(a) of the NZBORA was submitted, similarly, not to be implicated.

[36]     The Crown noted the decision of the English Court of Appeal in R v Dabhade [1993] 1 QB 329 (CA) which addressed squarely the principles relating to autrefois acquit.  At 341 the Court said:

… For the principle of autrefois to apply, the defendant must have been put in jeopardy.  Quite apart from all the other requirements, he must demonstrate that the earlier proceedings that he relied upon must have been commenced – that is, by a plea in summary proceedings, or by his being put in charge of the jury in a trial or indictment.

[37]     Mr Woolford accepted that the facts in Dabhade are not the same as those in this case.  The appellant in Dabhade had faced two alternative charges, theft and obtaining by deception.  He was committed for trial on the theft charge following dismissal by the magistrate on the deception charge.  When he appeared, the appellant argued that the dismissal of the deception charge had been an effective acquittal, and since the theft charge was based on the same facts, it would be double jeopardy for the Crown to proceed with it.  The question the Court faced in Dabhade was whether the charge of theft was the same (or substantially the same) as the deception charge so as to give rise to the please of autrefois acquit.  The Court concluded that it was not, because the evidence necessary to support a theft charge was not the same as that required to support a deception charge.

[38]     However, Mr Woolford noted that the Court had said at 341:

If… the context in which a charge is summarily dismissed is a rationalisation or a reorganisation of the prosecution’s case, so that, no doubt in recognition of the difficulties that may lie ahead in the successful prosecution of the original charge, it is decided to substitute therefor a new charge which is regarded as more appropriate to the facts, then the consensual dismissal of the original charge, upon substitution of a new one, will not give rise to the application of the doctrine of autrefois acquit… Admittedly the prosecution have not been put to their election; that is merely because it is at their instance that the new and substituted charge is preferred.  Apart from anything else, including the fact that to hold otherwise would be contrary to common sense, it is plainly undesirable that the prosecution should be obliged to keep alive a charge upon which they have no intention of seeking a conviction merely to meet any subsequent attempt to apply the doctrine of autrefois acquit in circumstances which are both technical and without merit.

[39]     Reference was also made to the decision of the New South Wales Court of Criminal Appeal in Gilham v R (2007) 178 A Crim R 72 particularly the dissent of Spigelman CJ, who considered that because an applicant was discharged of the indictment for murder prior to the jury being empanelled, the applicant was not relevantly in jeopardy.

Discussion

[40]     This appeal demonstrates the need for a principled approach in the sphere of plea bargaining.  Plea bargaining is not necessarily a negative activity.  But, a structure with clear criteria and consequences must be in place if the criminal justice system is to operate consistently, with integrity and with full public confidence.

[41]     There is a substantial commonsense attraction to the position adopted by Heath J, and his view that Lang J had approached the two guilty pleas and the discharges as a “package” arrangement, whereby each element of the package was dependent upon the others.

[42]     There is no suggestion that the order made by Lang J was obtained as a result of fraud or bad faith on the part of the appellant.

[43]     It is difficult to conclude that the Judge, in exercising the power under s 347, did anything but respond to the fact that the Crown indicated that no evidence would be proffered.

[44]     Everybody was content that the sensible disposal of the allegations against Ms Holt was captured by her two pleas of guilty.

[45]     It is, however, an unavoidable conclusion that there was a final and complete disposal of the discharged counts.  In clear terms, that is what s 347(4) says.

[46]     When the question of the status of the orders made by Lang J came before Heath J, the first question for consideration was under what power or authority could Heath J reconsider those orders? 

[47]     Put another way, on what basis could Heath J find that the orders made by Lang J were a nullity, or otherwise wrong?

[48]     As a basic proposition, once a judgment or order of the High Court has been finally recorded, the Court is functus officio, having exhausted its jurisdiction on the subject matter of that order.  In terms of res judicata it can be said in general terms (see Bower (gen ed) The Doctrine of Res Judicata (3ed 1996) at 63 – 64) that:

Criminal decisions stand on the same footing as other judicial decisions; any conviction or acquittal of a party on an indictment, information, summons, or complaint, pronounced by a court of competent jurisdiction, is conclusive in any subsequent proceedings between the same parties, in respect of the same offence.  Res judicata estoppel against the Crown gives rise to the plea of autrefois acquit [see s 358 of the Crimes Act 1961 (NZ)] upon arraignment.

But this proposition is premised on the presumed definition of “finality”.  When is an order “final?”  Is it enough that it is on the record?  Must it be substantively sound and issued on the basis of true, cogent and properly understood information?

[49]     In Nakhla, this Court considered its jurisdiction to set aside its own order, and concluded that it could do so where the order was properly described as a “nullity”. In that case, the Court of Appeal had earlier dismissed the appellant’s appeal against conviction and sentence, but the judgment as handed to the Registrar had been incomplete. The appellant argued that the incompleteness meant that the dismissal did not acquire the status of a final and conclusive order. The Court rejected this, holding that the order, although on the record initially incomplete, was not a nullity since the Court’s decision had been finally recorded and all statutorily required procedures had been followed: at 458.

[50]     In the English case of R v Cross [1973] 2 All ER 920, the Criminal Division of the Court of Appeal quashed a sentence of imprisonment, substituting it with a probation order. The Court discovered later in the day that it had made the probation order in ignorance of the fact that the appellant had a previous conviction. When the Court sought to reconsider the probation order in light of that new information, it faced opposition from the appellant who contended that the probation order was final. The Court was concerned to delimit the circumstances in which an order may be revisited and proposed the following test (at 922):

The vital question is whether that decision or order has been recorded by the proper officer at the court of trial, pursuant to the relevant directions.

[51]     In other words, as this Court in Nakhla held, the issue as framed by the Cross court in respect of the English Criminal Appeal Rules, was whether the order as made was formally valid.  In Cross, the probation order was not formally recorded and was therefore amenable to withdrawal.

[52]     In Butterfield v R (see above at [24]) an appeal had been dismissed on the basis of a fundamental misunderstanding; the Judge had misapprehended that he was dealing with two concurrent sentences, when in fact there was only one before the Court. The Court held that because the Judge had proceeded on the basis of a premise that was both essential to his decision and essentially mistaken, the order made was properly viewed as a nullity. In reaching this conclusion, Panckhurst J had regard to Police v Thomas [1977] 1 NZLR 109 (CA), where Cooke J stated (at 121) that:

No doubt s 204 [of the Summary Proceedings Act 1957] is unavailable if a defect is so serious as to result in what should be stigmatised as a nullity.  But nullity or otherwise is apt to be a question of degree. … In practice questions of miscarriage of justice and nullity will often tend to merge.

[53]     From Nakhla, and the discussion and application of Cross in that case, a simple proposition emerges: to determine the validity – or finality – of an order it is necessary to determine whether the order is, on its face and in formal terms, properly made.  Butterfield suggests that if information that is critical to the making of the order is misconstrued or not accounted for at the time the order is made, the order may be characterised as a nullity.

[54]     A formal and technically sound record of an order is prima facie evidence of its finality.  Only if there is an essential flaw in the order’s internal logic could it be a nullity and reviewable.

[55]     In New Zealand, s 353(1) of the Crimes Act provides for the keeping by the Registrar of a Crown Book in which the Registrar must “cause to be preserved all indictments and all depositions”.  The opening words of the subsection provide that “it shall not in any case be necessary to draw up any formal record of the proceedings on a trial for a crime.”  Under s 353(3) a memorandum of the substance of all proceedings at every trial and of the result of every trial must be entered in the Crown Book.  No other formalities are required.  It was not suggested in the present case that these requirements were not met well before Heath J’s order reinstating the counts in question.

[56]     In the circumstances and in light of the authorities referred to, we are persuaded that Heath J did not have jurisdiction to reconsider the discharge orders made by Lang J.  Those discharge orders were properly and formally made, and were recorded.  When making the orders Lang J was not labouring under any essential misapprehension or acting on the basis of misinformation so as to bring Ms Holt’s case within the recognised exceptions.  They were not orders which were flawed from their inception.  The orders made by Lang J were proper, and based on a complete understanding of the surrounding circumstances.

[57]     Lang J ordered the discharges as a consequence of the Crown’s election to offer no evidence on the charges.  That is not to deny that he would have understood the Crown’s decision to call no evidence to have been made in light of Ms Holt’s guilty pleas.  But had he turned his mind to the issue, he would have known that Ms Holt’s pleas could, with leave, be changed.  It cannot be said that the facts of this case fall within that narrow range of judicial orders that are essentially unsustainable.

[58]     These conclusions are consistent with the fact that s 347(4) of the Crimes Act provides that a discharge under the section is deemed to be an acquittal.  If the order, when formally made, is not affected by any error operative at the time, the deemed acquittal must stand.

[59]     There is no right of appeal from a decision under s 347.  Section 381A of the Crimes Act, as inserted by the Crimes Amendment Act (No 2) 2008, now provides for the reference to the Court of Appeal (on the application of the prosecutor) of any question of law arising out of a direction that the accused be discharged under s 347.  Previously, orders made under s 347 have been final (see R v Grime [1985] 2 NZLR 265 (CA); R v Harrison [2007] NZCA 588 at [12]).

[60]     If the discharge had been entered in the District Court, it may have been amenable to review.  We make no comment as to a likely outcome in the High Court.  But that possibility does not colour the proper procedure when, as here, the discharge is entered in the High Court.  Our conclusions are consistent with the fact that in all fields the extent to which one High Court Judge may review or alter a decision made by another High Court Judge has always been strictly circumscribed.  This reflects what was said by Lord Diplock in Re Racal Communications Ltd [1981] AC 374 (HL) at 384:

Mistakes of law made by judges of the High Court acting in their judicial capacity as such can be corrected only by means of an appeal to an appellate court; and if, as in the instant case, the statute provides that the Judge’s decision shall not be appealable, they cannot be corrected at all.

[61]     These observations must apply also to mistakes of fact which are what Heath J in effect found had affected Lang J’s decision in the present case.

[62]     When the matter is analysed on the basis of jurisdiction and clear judicial authority (and notwithstanding the attraction of taking a global view of the total factual circumstances), Heath J did not have jurisdiction to interfere with Lang J’s discharge orders.

[63]     It is common practice for the Crown to agree to the resolution of prosecutions on the basis of guilty pleas proffered in respect of only some of the counts in an indictment.  As in the present case, an indication is given to the Court that no evidence will be offered on the remaining counts and an order is made under s 347 discharging the accused accordingly.  The rationale for the Crown proceeding on this basis is that the overall gravity of the accused’s offending will adequately be reflected by the guilty pleas entered.

[64]     To avoid what some may think are the unsatisfactory consequences of this decision, there is nothing to prevent the Court adjourning the counts which are to be the subject of orders for discharge under s 347 until sentencing has been completed on the counts to which guilty pleas have been entered.  The rule in R v Le Page [2005] 2 NZLR 845 at [14] - [15] (CA) would apply:

[14]     As Potter J observed in the course of her decision, neither counsel nor her own researches had revealed any case in which the High Court had granted leave to vacate a guilty plea after the applicant had been sentenced.  The Judge cited a passage from R v Kihi CA395/03 19 April 2004, in which this Court said at para [14]:

Once sentence is passed, the long-standing practice of the [High] Court is not to entertain an application for leave to withdraw a guilty plea.  The remedy is an appeal against conviction.  The appellant is entitled to raise as a ground of appeal that a miscarriage of justice has occurred through the Judge wrongly refusing to grant leave to withdraw the guilty plea or wrongly declining to consider the application.

[15]     No argument was put to us, or authority referred to, which called in question this analysis of the position.  It accords with the practice in England: S (an infant) v Manchester City Recorder [1972] AC 481, Archbold, Criminal Pleading, Evidence and Practice (2005), para 4-187 and in Australia: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 and R v Douglass [2004] VSC 376. Although the question is not formally before us we concur in the view which Potter J tentatively formed, namely that the inherent jurisdiction of a High Court Judge to grant leave to vacate a guilty plea does not endure after sentence.

[65]     The Supreme Court refused leave to appeal from this case: R v Le Page [2005] 3 NZLR 145.

[66]     The appeal against conviction is accordingly allowed.  Convictions on the six charges on which Ms Holt had previously been discharged are quashed.

The appeal against sentence

[67]     The two offences in respect of which Ms Holt entered guilty pleas before Lang J, and then changed those pleas to not guilty before Heath J, were possession of heroin and of methamphetamine for the purpose of supply.  The jury found Ms Holt guilty on both of those charges.  The jury also found Ms Holt guilty on the other seven counts that Heath J had reinstated, but in light of our view that those charges were not amenable to reinstatement, we need only consider the appropriate sentences for conviction upon the two charges in respect of which Ms Holt was properly tried.

[68]     At sentencing Harrison J considered that the most serious of the crimes of which Ms Holt was convicted were possession of methamphetamine for supply and supply of methamphetamine.  In combination, Harrison J considered that they justified a starting point of four and half years’ imprisonment.  That starting point was increased to reflect the multiplicity of Class A drugs offending, taking the starting point to six years.  For the firearms charges, the starting point was increased to six and half years, which the Judge considered was appropriate to reflect the totality of the offending.

[69]     In respect of Ms Holt’s personal circumstances, Harrison J acknowledged that she had suffered for many years from Attention Deficit Disorder, and that she was a long-term user of Temazepam, upon which she was dependent.  For these and other mitigating factors of a personal character nature, Harrison J granted Ms Holt a total discount of 18 months, taking her total effective sentence to five years’ imprisonment. 

[70]     Mr Robb contended before us (and the Crown agreed) that had Harrison J only been sentencing Ms Holt on the two drugs charges and the two Arms Act charges in respect of which Lang J had not previously discharged her, then an effective sentence of four years’ imprisonment would reflect the overall approach to sentencing adopted by Harrison J.  We agree.

Result

[71]     The appeal against conviction is allowed on the counts on which Ms Holt had previously been discharged under s 347 of the Crimes Act 1961 on 12 February 2007.  In fact Ms Holt was discharged on two of those counts in the course of the trial (see above at [13]), so there remained five counts in respect of which she was convicted and in respect of which we allow her appeal against conviction, namely:

(a)conspiring to defeat the course of justice contrary to s 116 of the Crimes Act 1961;

(b)possession of the class B controlled drug morphine for the purpose of supply contrary to s 6(1) of the Misuse of Drugs Act 1975;

(c)possession of a precursor substance for the purpose of manufacturing the class A controlled drug heroin contrary to s 12A(2)(b) of the Misuse of Drugs Act 1975;

(d)supply of the class A controlled drug methamphetamine contrary to s 6(1)(c) of the Misuse of Drugs Act 1975; and

(e)possession of a methamphetamine pipe contrary to s 13(1)(a) of the Misuse of Drugs Act 1975.  Ms Holt pleaded guilty to this count before trial but it had earlier been subject to a discharge order by Lang J.  The finality of that order is not affected by the later plea of guilty since Ms Holt should never have been required to plead in respect of the count once it had been discharged.

[72]     The sentence of five years’ imprisonment for possession of methamphetamine for supply is quashed and substituted with a sentence of four years’ imprisonment. 

[73]     The sentence of three years’ imprisonment imposed for possession of heroin for supply is confirmed.

[74]     The sentence of one years’ imprisonment imposed for possession of a firearm and possession of explosives under the Arms Act is confirmed.

[75]     All terms of imprisonment are concurrent so the effective sentence is now four years’ imprisonment.

Solicitors:
Crown Law Office, Wellington