The Queen v Holloway - [2007] NZCA 508

IN THE COURT OF APPEAL OF NEW ZEALAND
CA365/07
[2007] NZCA 508
THE QUEEN
v
PAUL ANTHONY HOLLOWAY
Hearing:11 October 2007

Court:Arnold, Ronald Young and Fogarty JJ
Counsel:H B Leabourn for Appellant

A Markham for Crown

Judgment:16 November 2007 at 12 pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.
REASONS OF THE COURT
(Given by Fogarty J)
[1]       This is an appeal against sentence. The appellant pleaded guilty in the Auckland District Court to one charge of conspiracy to manufacture methamphetamine and one charge of conspiracy to supply methamphetamine. This was done prior to the completion of a deposition hearing.   As a consequence of the plea the District Court no longer had jurisdiction and the matter was transferred to the Auckland High Court for sentence.   The appellant was sentenced by Williams J on 19 July 2007 to six and a half years imprisonment on each charge concurrent with each other. The sentence was also to be served concurrently with a sentence imposed on 26 May 2006 by Williams J.
[2]       The background to the 26 May 2006 sentencing was that on 23 September 2005, after a search warrant was executed at the appellant’s property, the police found methamphetamine and a stun gun. The appellant was convicted on one count of possessing methamphetamine for supply and another of unlawful possession of a stun gun. He was sentenced to six years imprisonment on the methamphetamine charge and one year concurrent on the gun charge.
[3]       Prior to this search warrant, interception warrants had been in place and a number of conversations were intercepted. Based on those intercepts Mr Holloway was charged with conspiracy to supply methamphetamine and conspiracy to manufacture the drug between 3 June 2005 and 27 August 2005. He pleaded guilty to these charges on 2 May 2007, about 15 months after he had originally been charged.
[4]       Ideally he would have been sentenced on 26 May 2006 on all charges. He was not because the operation using the intercepts did not terminate until 23 February 2007.
[5]       It was common ground between counsel and the High Court Judge that Mr Holloway should be sentenced on these later charges so far as possible as if he was sentenced on all charges on 26 May 2006.
[6]       His counsel, at the July 2007 sentencing, argued that the resultant sentence should be, on the totality principle, seven years. The Crown supported that view. However, the Judge took the view that the appropriate sentence should be in the order of seven and a half years. The Judge also took into account the effect on parole eligibility were he to sentence in 2007 without taking into account that the imprisonment on the earlier charges had started some time before.
[7]       All these considerations are brought together in paragraph [26] of the judgment under appeal:
[26]     If you had been sentenced in May last year on the conspiracy to manufacture methamphetamine to seven and a half years which in my view would have been…

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.

Continue reading The Queen v Holloway

Details

AGLC: The Queen v Holloway [2007] NZCA 508
Case: [2007] NZCA 508
Decision Date: 16 November 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of The Queen v Holloway was heard by Arnold, Ronald Young, and Fogarty JJ. The appellant, Paul Anthony Holloway, had pleaded guilty to charges of conspiracy to manufacture and supply methamphetamine and was appealing against the sentence imposed. The appeal specifically focused on the length of the sentence and the consideration of parole eligibility. Holloway had previously been sentenced for possession of methamphetamine and a stun gun, and the appeal argued that the sentence for the later charges should reflect what it would have been if all charges were heard together.

The primary legal issue before the Court was whether the sentence imposed by the High Court was manifestly excessive and whether the Judge appropriately considered parole eligibility when imposing the sentence. Holloway's counsel argued that the total sentence of seven and a half years was excessive and that the Judge did not adequately account for the fact that Holloway had already begun serving a sentence for earlier charges. The Crown, on the other hand, supported the sentence imposed by the Judge.

The Court found that the sentence of seven and a half years was not excessive, given the nature and scale of Holloway's involvement in the methamphetamine conspiracy. The Court also determined that there was no error of principle in the way the Judge handled the sentencing, particularly in the context of Holloway's parole eligibility. The Court concluded that the extension of Holloway's parole eligibility date by about four months did not constitute an error that warranted altering the sentence. The appeal was dismissed, and the original sentence was upheld.

Orders