Holdem v The Queen - [2018] NZHC 634

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-000138

[2018] NZHC 634

BETWEEN
MICHAEL SCOTT HOLDEM

Appellant

AND

THE QUEEN

Respondent

Hearing: 28 March 2018

Appearances:

J Lucas for Appellant

SRDD Bicknell Young for Crown

Judgment:

28 March 2018

ORAL JUDGMENT OF GENDALL J

Introduction

[1] On 13 July 2017 in the District Court at Christchurch, Mr Holdem was sentenced by Judge Farish to 27 months’ imprisonment on one charge of assault with intent to injure, one charge of unlawful possession of a firearm and one charge of unlawful possession of explosives.1 He appeals that sentence on the grounds that it is manifestly excessive.

The offending

[2] The appellant, Mr Holdem, has been in an on-off domestic relationship with the victim of the assault for the past two years. That relationship, as Judge Farish noted in her decision, had clearly gone sour. After receiving several threatening text messages from Mr Holdem, which the victim says caused her to fear for her life, the

1 R v Holdem [2017] NZDC 15338.

HOLDEM v R [2018] NZHC 634 [28 March 2018]

victim barricaded herself inside her home, nailing windows shut and boarding the doors to protect herself from Mr Holdem.

[3] Despite these measures, around 11:45 p.m. on 3 July 2016, Mr Holdem managed to gain access and get inside the victim’s house. She was hiding under a bed at the time. He found her using a torch he had with him and then punched her several times in the head with a closed fist. After she covered her face with her hands to protect herself Mr Holdem continued to punch the victim in the stomach. Before leaving, it is said he told the victim that she better not tell anyone or else he would find her and kill her and that she had better move out of that place real fast. She suffered clear injuries as a result of the assault, including a very swollen and bruised eye.

[4] Subsequently during the next day, a search warrant was executed at Mr Holdem’s home. A disassembled .22 rifle was found as well as 16 sticks of explosive gel, 14 metres of detonation cord and five electric detonators.

Jurisdiction and approach to appeal

[5] Mr Holdem appeals his sentence here as of right.2 This Court can only allow the appeal if it is satisfied that there is an error in the sentence imposed and that an alternative sentence should be imposed.3 If the sentence under appeal can be properly justified, having regard to relevant sentencing principles, this Court cannot substitute its own views for those of the sentencing Judge. The sentence must be either manifestly excessive or inappropriate if the sentencing Judge’s discretion is to be interfered with. It is not enough that the Judge made an error in his or her reasoning. The focus is on the sentence imposed, rather than the process by which the sentence was reached.4

District Court sentencing

[6]…

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 Holdem v The Queen

Details

AGLC: Holdem v The Queen [2018] NZHC 634
Case: [2018] NZHC 634
Decision Date: 28 March 2018

CaseChat Overview and Summary

In Holdem v The Queen, the appellant, Michael Scott Holdem, was convicted in the District Court at Christchurch for assault with intent to injure, unlawful possession of a firearm, and unlawful possession of explosives. Holdem appeals his 27-month sentence on the grounds that it is manifestly excessive. The High Court of New Zealand was required to determine whether the sentence imposed by the District Court was appropriate or if it contained errors that warranted an alternative sentence. The central issues were whether the starting point for the assault charge and the discount for the guilty plea were correctly applied.

The court found that the District Court did not err in adopting a 24-month starting point for the assault charge, as the attack on the victim’s head and the vulnerability of the victim warranted a severe starting point. The court also upheld the 15 per cent discount for the guilty plea, noting that while the plea was entered late, it was appropriate given the tactical reasons behind the delay. The High Court concluded that the sentence imposed by the District Court was justified and appropriate, and therefore dismissed the appeal. The sentence of 27 months’ imprisonment was affirmed.

Orders