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 the appropriate sentence, you would have been eligible for parole towards the end of 2008.  By today imposing a sentence of six and a half years, I have inadvertently extended that significantly.  What I am now persuaded and need to do to ensure that the sentence you are serving and that which has just been imposed on you are not unreasonably long is to reduce the sentence on both counts you currently face to five years imprisonment.  Although parole eligibility is not a factor which ordinarily is taken into account in sentencing, in your unusual circumstances I think it is appropriate.  Although imposing these sentences does extend your parole eligibility date, it is only for a few months.  Dealing with it on the basis that I was sentencing last year you for all your offending, if I had sentenced you then to seven and a half years which would have been obviously the longest term in May last year, my calculation is you would be eligible for parole in about November 2008. 

[8]       Mr Leabourn, Mr Holloway’s counsel, argued before the sentencing Judge that in the circumstances a cumulative sentence of 12-18 months imprisonment in respect of the latter charges should have been imposed.  Had that been done the parole eligibility date would have been extended from 26 May 2008 to 26 September 2008 (12 months cumulative) or 26 November 2008 (18 months cumulative). 

[9]       The effect of the sentence of five years concurrent on 19 July 2007 postponed the parole eligibility date to 19 March 2009. 

[10]     Had the Judge imposed a total sentence of seven and a half years for all charges in May 2006 the parole eligibility date would have been 26 November 2008.  In that latter instance the sentence expiry/statutory release date would be 26 November 2013.  The sentence expiry/statutory release date on the judgment under appeal is 17 July 2012. 

[11]     The appeal by counsel was that the total sentence of seven and a half years is manifestly excessive and secondly the Judge did not appropriately take into account parole eligibility. 

[12]     Mr Leabourn was not able to develop in any significant way the contention that the total sentence of seven and a half years was manifestly excessive.  In respect of the conspiracy, over two days in July 2005, Mr Holloway arranged with other co‑conspirators to pay $37,000 for 1,000 boxes of ContacNT and later Mr Holloway arranged to obtain first 500 and then 400 boxes of that precursor chemical.  He also arranged with a Mr Collins to manufacture methamphetamine with the precursor chemicals he and others had obtained.   A search warrant executed on Mr Collins’ property on 3 August 2005 discovered a very substantial clandestine methamphetamine manufacturing laboratory.

[13]     Against these facts an overall sentence of seven and a half years is easily within the range open to the High Court Judge.  There was no criticism of the Judge taking a starting point of ten years.  As the Judge noted, he could have increased that due to the aggravating features as to the size of the operation, its duration and the amount of methamphetamine apparently manufactured.

[14]     The Judge did allow for an uplift of aggravating features but also for a reduction for the pleas and other mitigating features, reaching an appropriate sentence in the order of seven and a half years.  We do not think that is in any way excessive. 

[15]     The second and main part of the case was challenging the Judge’s accommodation of the fact that Mr Holloway had commenced his prison sentence on the first charges in May 2006. 

[16]     As Mr Leabourn acknowledged, that was a difficult task. We have set out the paragraph bringing the Judge’s views together on this point at [7] above. We see no error of principle. The result was to extend parole eligibility by about four months. Had seven and a half years been imposed for everything in May 2006 there would have been an earlier parole eligibility date but a later sentence expiry date.

[17]     When judging the significance of the parole eligibility dates, and the extension by four months, we take into account that this Court should not assume at all that parole will be granted at the earliest possible date. 

[18]     Overall we are of the view that there was no error of principle in the way in which the Judge handled this sentencing made difficult by the postponed date for sentencing on the later charges.  The appeal is dismissed.

Solicitors:
H Leabourn, Auckland
Crown Solicitor, Auckland