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…

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.

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Details

Case: [2014] NZHC 1131
Decision Date: 27 May 2014

CaseChat Overview and Summary

In the High Court of New Zealand, David Ross Hollingshead appealed against his sentence imposed by Judge Andrée Wiltens, which comprised two years, eight months' imprisonment for theft and conversion charges and one month for other charges. The primary legal issues the court needed to decide were whether the starting point for sentencing was excessive, if the uplift for previous offending was justified, if the court failed to consider the appellant's remorse and rehabilitation, and if it gave insufficient credit for time spent on electronic monitoring (EM) bail. Additionally, the appellant claimed the sentence was excessive because of his medical condition and the time he spent in the hospital.

The court found that the starting point of three years was too high, considering the totality of the offending was not significantly distinct from cases with a lower starting point. An appropriate starting point for this case was two and a half years. However, given the appellant's history of offending while on bail, an uplift of six months was warranted. Therefore, the starting point for sentence was three years, six months to three years, eight months before considering mitigating factors.

The court was entitled to reject the appellant's suggestion of remorse, as it is ultimately for the court to determine if the remorse is genuine. A further discount may be given for genuine and substantial remorse, but the appellant's protestations of remorse were rejected in this case. Considering the appellant's medical condition, belated attempts to address his addiction, and the time spent on EM bail, a reduction of four months may have been appropriate. A discount of 20% for the guilty plea was generous, considering the strength of the prosecution case and the timing of the guilty pleas. Consequently, the sentence of two years, eight months was within range and not manifestly excessive.

The appeal against sentence was dismissed.

Orders