Hollingshead v Police

[2014] NZHC 1131

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000027 [2014] NZHC 1131

BETWEEN

DAVID ROSS HOLLINGSHEAD

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	26 May 2014
Appearances:	J J Maddox on behalf of V Letele for Appellant K Muirhead for Respondent
Judgment:	27 May 2014

JUDGMENT OF VENNING J

This judgment was delivered by me on 27 May 2014 at 2.15 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Meredith Connell, Auckland

Copy to:            V Letele, Auckland

J J Maddox, Auckland

HOLLINGSHEAD v NZ POLICE [2014] NZHC 1131 [27 May 2014]

Introduction

[1]      David Hollingshead pleaded guilty to four charges of theft, two of conversion of a motor vehicle, one of interfering with a vehicle, one of receiving and one of possession of a pipe for the purpose of smoking cannabis.   Judge Andrée Wiltens sentenced him to two years, eight months’ imprisonment on the more serious charges of theft and conversion and one month imprisonment on the other charges.1     Mr Hollingshead appeals against sentence.

Adjournment request

[2]      At sentence Mr Hollingshead was represented by S Giles.  Ms V Letele was assigned to represent Mr Hollingshead on the appeal.  Ms Letele filed full written submissions in support of the appeal but advised the Court that she would be unable to attend at the hearing of the appeal on 26 May as a standby trial had been called on. Ms Letele sought an adjournment.   That was declined by Woolford J in a minute issued on 22 May 2014.  Ms Letele was requested to instruct an agent or ask Legal Aid to assign another counsel.   Ms Letele instructed Mr Maddox, an experienced criminal barrister to appear for Mr Hollingshead.

[3]      At the outset of the hearing Mr Maddox presented the Court with a letter from Mr Hollingshead.   In it Mr Hollingshead indicated that he was not entirely comfortable with someone other than Ms Letele presenting his appeal.  He sought the appeal be adjourned.  Having considered Mr Hollingshead’s letter, I declined his application for adjournment and indicated to Mr Maddox that the appeal would proceed.  Mr Hollingshead is in custody.  The appeal should be dealt with.  This is a straightforward  appeal  against  sentence.     The  principles  are  well  established. Counsel has filed full submissions.  The appeal is ready to proceed.  To adjourn it would simply be to clog the lists on another day.  In dealing with the appeal I take into account Ms Letele’s written submissions and also the points Mr Hollingshead

makes in his letter.

1      New Zealand Police v Hollingshead DC Manukau CRI-2013-092-001720, 18 September 2013.

Background

[4]      On 27 September 2012 Mr Hollingshead broke the rear quarter window of a Holden Commodore but was apprehended by police before he could steal the car. On 5 December 2012 Mr Hollingshead took a digital thermometer valued at $700 from the victim’s work vehicle.  He was seen by the victim who tried to stop him from driving away.   On 8 February 2013 Mr Hollingshead broke into a Mercedes Benz motor home valued at $100,000 and drove it away.  On 27 February 2013 Mr Hollingshead stole a Toyota car valued at $25,000.   On 11 March 2013 Mr Hollingshead entered a vehicle and stole property valued at $600 from it.   On 15

March 2013 Mr Hollingshead broke into a car and took property valued at $2,200. On 19 March 2013 he entered a vehicle and took property valued at $250.  On 20

March 2013 Mr Hollingshead was stopped by the police.  Items belonging to two of the victims of the thefts were located in the car he was driving.  Mr Hollingshead also received a fuel card and was found in possession of a pipe for the purpose of smoking cannabis.

[5]      In sentencing Mr Hollingshead the Judge took a start point of imprisonment of three years and uplifted that by nine months for Mr Hollingshead’s history.  He calculated Mr Hollingshead had 308 previous convictions of which 94 involved dishonesty.   From the three years, nine months’ imprisonment the Judge took into account Mr Hollingshead’s state of health, the fact he had been on restrictive EM bail for some time and gave a discount for guilty pleas of 20 per cent.  In the end he imposed a sentence of two years, eight months’ imprisonment on the more serious charges and one month imprisonment concurrent on the less serious charges.

Grounds of appeal

[6]      The appeal is advanced on the basis that the sentence imposed was manifestly excessive because the Judge erred as follows:

(a)       taking an excessive starting point; (b)   the uplift was not justified;

(c)       failed to consider Mr Hollingshead’s remorse and rehabilitation;  and

(d)      gave insufficient credit for the time spent on EM bail.

[7]      In his letter Mr Hollingshead also took issue with a number of matters.  He criticised the Judge’s note that he had offended almost immediately following his release from imprisonment.  Mr Hollingshead says that he had been out for around three to three and a half years working for the Salvation Army before he became hospitalised.  Mr Hollingshead also noted that the Judge failed to take into account his medical condition.  It was so bad that he was hospitalised following arrest.

[8]      Mr Hollingshead also addressed the following personal matters:

(a)      He  had  spent  12  to  13  months  in  Middlemore  Hospital  on  large amounts of morphine and lost considerable weight before discharge. He submits it was his relapse which led to his reoffending.

(b)Mr Hollingshead says  he returned the camper van two days  after taking it near to where he had taken it from and it was undamaged.

(c)      He  notes  that  a  number  of  the  charges  he  faced  only  carried  a maximum sentence with one year.

(d)Mr Hollingshead considers he should have been given a 25 per cent discount for his guilty plea.  He submits he pleaded guilty to all the charges at the earliest opportunity when they were correctly laid.

(e)       Mr Hollingshead complains his letter of remorse was not given to the

Judge.

(f)      Mr Hollingshead notes the time on EM bail was difficult for him but that he withdrew from morphine during that time with the help of his GP and re-entered recovery with the Salvation Army Bridge Programme.

(g)He notes the effect of major surgery on him and the fact that he has the support of the Salvation Army.

Decision

The starting point

[9]      I agree with counsel’s submission that the starting point of three years would seem, in the circumstances of this case, too high.  In Singh v R2  Mr Singh faced a number of charges, including charges of unlawfully taking and unlawfully getting into motor vehicles and various charges of theft.  The Judge in that case took a start point of two and a half years’ imprisonment and then provided an uplift of nine months for previous offending.   The Court of Appeal accepted the start point was

open to the Judge.  I do not consider that the totality of the offending in the present case is significantly distinct from the totality of the offending in the case of Mr Singh.  An appropriate starting point for the totality of offending in the present case was two and a half years.  However, after Mr Hollingshead was arrested in relation to the September 2012 offending he was granted bail.  A further aggravating feature in this case is that the later offending occurred while he was on bail.   That is a significantly aggravating factor, particularly given the offending occurred on a number of separate occasions. That warrants an uplift of six months.

[10]     Further, given Mr Hollingshead’s record the Judge was entitled to add an uplift to reflect Mr Hollingshead’s propensity for offending of this nature.   In Mr Singh’s case, Mr Singh had 50 previous convictions for dishonesty, 41 of which related to motor vehicles.   The Court accepted that an uplift in that case of nine months, while high, did not justify interference by the Court.  In the present case, given Mr Hollingshead’s past history, which on the Judge’s record disclosed 94 offences involving dishonesty, an uplift of at least six to eight months was available to the Judge.

[11]     That leads to a starting point for sentence of three years, six months to three years, eight months before taking account of mitigating factors.

[12]     Having reviewed the material on the file and after taking account of Mr Hollingshead’s written material I am satisfied the Judge was entitled to reject Mr Hollingshead’s suggestion of remorse.  While it is one thing for Mr Hollingshead to say he is remorseful, ultimately it is for the Court to consider whether or not that remorse is genuine.   As the Supreme Court confirmed in Hessell v R,3  a further discount may be given but only for genuine and substantial remorse.  The Judge was entitled to reject Mr Hollingshead’s protestations of remorse in this case.

[13]   Further, Mr Hollingshead can receive very little credit for his personal circumstances.   However, taking account of his medical condition, the belated attempts made to address his addiction and the time he spent on EM bail a reduction of four months may have been appropriate.

[14]     That leads to a sentence of between 38 to 40 months before taking account of the guilty plea.  Mr Hollingshead says he should be entitled to a full credit of 25 per cent for his guilty pleas.  Although the guilty pleas were intimated at an early stage they were not entered at the first available opportunity.  The District Court record is quite clear in relation to that.   For example he appeared for the first time on 22

February 2013 on the charge of taking the Mercedes Benz motor home.   On 26

February there was an intimated guilty plea.   However, the guilty plea was not entered until 2 July 2013.

[15]     Further, on a number of the offences the Crown case against Mr Hollingshead was strong.  In relation to a number of them Mr Hollingshead was observed by the victims of the offence or was apprehended shortly thereafter.   The strength of the prosecution case is a further relevant factor to take into account when fixing the credit for the guilty plea.  I consider the discount of 20 per cent in this case to have been generous.   A discount of 20 per cent in this case would have led to an end sentence in the range of two years, six months to two years, eight months.  On that basis the end sentence of two years, eight months was within range and was not manifestly excessive.

Result

[16]     The appeal against sentence is dismissed.

Venning J