Hollingum v Police - [2013] NZHC 3235

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2013-406-000009 [2013] NZHC 3235

ASHLEY ROBERT HOLLINGUM

v

NEW ZEALAND POLICE

Hearing: 3 December 2013

Counsel: R Gould for Appellant
M Inwood and A R Vanechten for Crown

Judgment: 6 December 2013

JUDGMENT OF WILLIAMS J

Introduction

[1] Mr Hollingum pleaded guilty to burglary,1 assault with a weapon2 and intentional damage3. He was sentenced to 12 months’ home detention with a post- detention condition that he completes alcohol and drug counselling, and ordered to pay $1,000 reparation. Mr Hollingum appeals against the sentence of home
detention on the basis that it is manifestly excessive.

1      Crimes Act 1961, s 231(1)(a), with a maximum penalty of 10 years’ imprisonment. I note that Mr Hollingum was initially charged with aggravated burglary. That was amended to burglary, but it was agreed that the summary was to remain unchanged so the elements of aggravated burglary were before the sentencing court. On 10 September 2013 the Crown also amended the particulars of the assault with a weapon charge to reflect the fact that the weapon used was a machete, not a flat piece of steel.
2      Crimes Act 1961, s 202C(1)(a), with a maximum penalty of five years’ imprisonment.
3      Crimes Act 1961, s 269(2)(a), with a maximum penalty of seven years’ imprisonment.

HOLLINGUM v NEW ZEALAND POLICE [2013] NZHC 3235 [6 December 2013]

Facts

[2] On 14 July 2013 the victim was at his home watching television with a Ms Gibson-Fox, the then partner of Mr Hollingum. The victim and Ms Gibson-Fox had known each other for a number of years. At about 4 pm Mr Hollingum arrived at the address, carrying a flat piece of metal, described as a machete or waratah. Mr Hollingum began smashing the lounge windows with the weapon. This caused shards of glass to shower the victim and Ms Gibson-Fox who were sitting with their backs to the window. Mr Hollingum then used the weapon to smash his way through the front door. Once inside he started chasing the victim and swinging the weapon at the victim while yelling “I’m going to kill you. Come here, I’m going to kill you”. He only narrowly missed on a number of occasions. The victim managed to escape through the back door as Mr Hollingum swung his weapon smashing the glass in the door. Mr Hollingum then left the address, taking Ms Gibson-Fox with him. He was found by police a short time later.

[3] The victim received a small scratch to his wrist during the attack. There was damage to the windows and doors, including gouges in the window frame and back door window frame. Mr Hollingum pleaded guilty on 17 September 2013 (following the amendment of the burglary and assault with a weapon charges).

District Court Judge’s decision

[4] Mr Hollingum appeared for sentence on 15 October 2013 before Judge Kelly in the Blenheim District Court. In sentencing Mr Hollingum the Judge took into account the gravity of the offending, the…

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: [2013] NZHC 3235
Decision Date: 6 December 2013

CaseChat Overview and Summary

The appellant, Ashley Robert Hollingum, appealed against his sentence for burglary, assault with a weapon, and intentional damage, which was 12 months' home detention with a post-detention condition to complete alcohol and drug counselling and ordered to pay $1,000 reparation. The District Court Judge had adopted a starting point of three years' imprisonment, taking into account the gravity of the offending, the seriousness of the charges, and the principle that she must impose the least restrictive outcome appropriate in the circumstances. The Judge considered the actual violence and threatened use of a weapon, the unlawful entry into a dwelling place, the extent of the harm resulting from the offending, and the premeditation involved as aggravating factors. The Judge allowed the maximum discount of 25 per cent for Hollingum's guilty pleas and imposed an end sentence of 12 months' home detention.

The court was required to decide whether the sentence imposed by the District Court was manifestly excessive, or if there was an error in the sentence imposed on conviction, and a different sentence should be imposed. The court also considered whether the sentence of 12 months' home detention immediately following three months of 24-hour curfew while on bail amounted to an effective term of 15 months' home detention. The court found that the three years' starting point was easily in range, and no criticism could be levelled at it. The court also found that the end sentence of 12 months' home detention could not be criticised as it was the maximum sentence of home detention available, and home detention was itself a generous response to serious offending.

The appeal was dismissed accordingly.

Orders