Hollingum v Police
[2013] NZHC 3235
•6 December 2013
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 seriousness of the charges, and the principle that she must impose the least restrictive outcome appropriate in the circumstances. The Judge considered the aggravating factors of the offending to be 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. The Judge adopted a starting point of three years’ imprisonment. The Judge held that no uplift was required for Mr Hollingum’s previous convictions and there were no mitigating features personal to Mr Hollingum except for his guilty pleas. The Judge allowed the maximum discount of 25 per cent for those pleas because Mr Hollingum
pleaded guilty as soon as his charge was reduced from aggravated burglary to burglary (a reduction of nine months). The Judge finally noted:
However, standing back and looking at your overall culpability, and the need to determine what an effective sentence is for the totality of your conduct, I take into account the fact that you have been on bail, on a 24 hour curfew, for three months. In all the circumstances I am satisfied that a total sentence of two years’ imprisonment is appropriate.
[5] So there was effectively a reduction of three months for totality and time spent on bail with a 24 hour curfew. The Judge imposed an end sentence of
12 months’ home detention.
Principles on appeal
[6] As the charging document was filed after 1 July 2013, the appeal provisions in the Criminal Procedure Act 2011 (the Act) apply. Section 250 of the Act provides that a first appeal court must allow the appeal if satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other case the court must dismiss the appeal. According to Adams on Criminal Law this confirms that a wide range of errors or irregularities may justify intervention by the appeal court. Accepted grounds include where a sentence is manifestly excessive, involved an error of law or principles, or disparity with a co-
offender’s sentence.4
Submissions
[7] Mr Hollingum’s grounds of appeal are:
(a) that the sentence was manifestly excessive; and
(b) that 12 months’ home detention immediately following three months
of 24 hour curfew while on bail amounts to an effective term of
15 months’ home detention.
4 See Adams on Criminal Law at [CPA250.01].
[8] Counsel for Mr Hollingum submits that a sentence short of the maximum allowable term of home detention, such as nine to ten months’ home detention combined with 200 to 400 hours of community work (although later counsel submits the figure should be 100 to 200 hours), is more appropriate. She says that:
(a) The starting point of three years was too high in all the circumstances of this case. She says that a starting point of two and a half years’ imprisonment would have been more appropriate. She acknowledges that Mr Hollingum’s offending was serious but she says that it was “an act of desperation - an emotional outburst of violence borne of a misguided sense of protecting his partner” and no serious injury was inflicted on the victim. She submits that although it is difficult to compare different sorts of crimes when determining an appropriate starting point, a starting point of three years more often applies in cases of serious drug offending or cases of actual bodily harm than in this kind of case, where there was mainly property damage.
(b) Even if the three year starting point is held to be appropriate, the
12 months’ home detention sentence is inappropriate, and is not the least restrictive sentencing outcome. Counsel submits that when determining the appropriate term of home detention, the sentencing Judge should have “stepped back” and asked whether the maximum term of home detention was appropriate, bearing in mind Mr Hollingum’s personal circumstances, his lack of significant history
of violence or burglary,5 the payment of reparation and the recognised
hardships inherent in a lengthy home detention sentence. Counsel further submits that the Judge could have imposed a sentence of community work with the home detention sentence in order to meet the punitive purpose of sentencing. She says that Mr Hollingum is
willing and able to perform such community work.
5 Mr Hollingum’s previous convictions mainly relate to driving offences, although he has
convictions for assault on a child (2012), burglary (2001) and assaulting police (2001).
[9] Counsel for the Crown submits that the starting point and end sentence of
12 months’ home detention were both well within range and were not manifestly excessive for the combination of offending. The Crown says that the starting point of three years was, if anything, lenient. The offending involved a premeditated home invasion and the use of a machete to commit violence with the specific intent of causing serious harm to the victim. Counsel says that the starting point was broadly consistent with comparable cases cited in the Crown submissions and was six months lower than the starting point advocated for by the Crown. The authorities cited by the Crown in its sentencing submissions included:
(a) R v Gray:6 G pleaded guilty to one count of burglary and one count of assault with a weapon. G went to a house of his neighbour while intoxicated and kicked in the door of the house. The neighbour persuaded G to leave. But later when the neighbour went to fetch a hammer to fix his door, G followed him into the house carrying an axe above his shoulder and threatened the neighbour that he would “wear the axe” if he did not hand the phone over and threatened the neighbour again with the axe when he stole the neighbour’s car. The sentencing Judge adopted a starting point of four and a half years’ imprisonment. The Court of Appeal saw no reason to question the starting point adopted by the sentencing Judge.
(b)Sarich-Samuels v Police:7 S was convicted of burglary, male assaults female and wilful damage. S knocked on the door of the victim’s apartment, forced his way through the door, which was locked with a safety chain and grabbed the victim by the throat. The assault ended when a neighbour heard the victim scream and phoned police. The sentencing Judge adopted a starting point of three and a half years’ imprisonment. On appeal the High Court held that the starting point was within the available range.
[10] The Crown further submits that the particular combination of offending in this case called for the maximum term of home detention to be imposed. Counsel says that the credits provided were appropriate and within range and Mr Hollingum’s personal circumstances were already recognised by the Judge in her exercising her discretion to impose home detention rather than a custodial sentence. Counsel submits that it would be “completely incongruent” both with the rest of the sentencing exercise in this case and with the need for denunciation and deterrence, for the Court to reduce the term of home detention and impose some community work in its place, simply to make it easier for Mr Hollingum to comply.
Assessment of starting point
[11] I have no doubt that the three years starting point was easily in range. In addition to the cases cited by the Crown, reference may be had to Hodgkinson v R, a group of youths entered the house while armed with a knife.8 In that case, Hodgkinson punched the occupant who defended himself by barricading himself into the bathroom until that was broken down by the offenders as a group, whereupon Hodgkinson continued to punch the occupant. A three year and two months’ starting point was adopted. Reference may also be had to R v Shirley.9 Shirley swung a baseball bat at an occupant of an address, all the while acting aggressively and threatening violence. The bat was taken off him but he returned two hours later, this time with his brother and a kitchen knife. The two threatened to kill the occupant who ran to a bedroom shutting the door. The pair attacked the door but left when the police were called. A starting point of three and a half years was adopted. This case
in particular is rather similar to Shirley in my mind although, if anything the present facts involve greater culpability.
[12] No criticism can be levelled at the starting point in this case.
Structure of the end sentence
[13] Ms Gould’s real argument was that the sentencing Judge should have considered a community work component in the sentencing package, and should
have reduced the home detention sentence down from maximum one year to ‘nine or ten months’ as a result. I accept that that option was open to the Judge, but I can well understand why she felt she was being generous in conceding home detention at all. Particularly in light of the authorities cited by the Crown and referred to by me. I do not think that the end sentence can be criticised. On the contrary, although it was the maximum sentence of home detention available, home detention was itself a generous response to serious offending.
[14] The appeal is dismissed accordingly.
Williams J
Solicitors:
Inangahua Chambers, Blenheim
Crown Solicitor, Nelson
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