Holloway v Police - [2017] NZHC 2562

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000284 [2017] NZHC 2562

BETWEEN
AARON JACK HOLLOWAY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 18 October 2017

Appearances:

S W Walker for the Appellant
M J Mortimer for the Respondent

Judgment:

20 October 2017

JUDGMENT OF HINTON J

This judgment was delivered by me on 20 October 2017 at 10.00 am pursuant to Rule 11.5 of the High Court Rules

……………………………………………………………………
Registrar/Deputy Registrar

Solicitors:
Raymond S Walker, Auckland
Meredith Connell, Auckland

HOLLOWAY v NEW ZEALAND POLICE [2017] NZHC 2562 [20 October 2017]

Introduction

[1] On 21 July 2017, Mr Aaron Holloway was sentenced in the Auckland District

Court by Judge Thomas.1

[2] Mr Holloway had pleaded guilty to one charge of common assault2 and one charge of being unlawfully in an enclosed area or yard.3 Mr Holloway was sentenced to 12 months’ supervision with a special condition to attend treatment or counselling as directed by Community Probation. Mr Holloway was also ordered to
pay $300 emotional harm reparation to the victims.

[3] In sentencing Mr Holloway, Judge Thomas rejected Mr Holloway’s application for a discharge without conviction, concluding that the offending was moderately serious, and that the consequences of conviction were not out of all proportion to the gravity of the offending.

[4] Mr Holloway now appeals against the convictions and sentence imposed, and says that he should have been granted a discharge without conviction.

Background

[5] On 18 September 2016, Mr Holloway was picked up by a taxi at around

1.10am. The taxi driver, Mr Ali, is the primary victim of Mr Holloway’s offending. At the end of the trip, Mr Ali asked Mr Holloway for a fare of $40. In arguing over this, Mr Holloway asked, “Do you want me to smash this bottle over your head?”. Mr Ali then stopped Mr Holloway from smashing a bottle of gin on his head. Mr Holloway pulled Mr Ali’s jacket over his head and punched him in the head, jaw and chest using both hands with closed fists.

[6] When a bystander stopped to assist, Mr Holloway fled the scene on foot. He escaped to a property on a nearby street, and was located by police in a sleep-out

1      New Zealand Police v Holloway [2017] NZDC 19112.
2      Crimes Act 1961, s 196. The maximum sentence is one year’s imprisonment.
3      Summary Offences Act 1981, s 29(1)(b). The maximum sentence is three months’ imprisonment
or a $2,000 fine.

on the property. The owners of the property were not aware Mr Holloway was there, and did not know him. They are the other victims of Mr Holloway’s offending.

[7] As a result of the attack, Mr Ali suffered a swollen jaw, and had bumps and a red patch on his head.

District Court Decision

[8] On 21 July 2017, at the hearing for Mr Holloway’s sentencing, Judge Thomas heard Mr Holloway’s application for a discharge without conviction.

[9] Judge Thomas noted…

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: [2017] NZHC 2562
Decision Date: 20 October 2017

CaseChat Overview and Summary

Aaron Jack Holloway appeals against the decision of the Auckland District Court to refuse his application for a discharge without conviction. The District Court had sentenced Holloway to 12 months’ supervision with a condition to attend treatment or counselling, and to pay $300 in emotional harm reparation to the victims. Holloway argues that he should have been granted a discharge without conviction. The appeal raises issues around the assessment of the gravity of the offending, the consequences of conviction, and whether these consequences are out of all proportion to the gravity of the offence. The High Court found that the offending was moderately serious and that the consequences of conviction were not out of all proportion to the gravity of the offending. The Court accepted that the offending was violent and that taxi drivers are extremely vulnerable. The Court also considered Holloway's age and efforts at rehabilitation, but found that these factors did not reduce the overall gravity of the offending. The Court concluded that the consequences of conviction, while likely to cause some difficulty for Holloway in obtaining employment or travelling overseas, were not so serious as to prevent him from doing either. The appeal was dismissed.

No additional orders were made.

Orders