Holtham v Police - [2018] NZHC 2160

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2018-485-000047

[2018] NZHC 2160

BETWEEN
EDWIN EEJAE HOLTHAM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 22 August 2018

Counsel:

L C Brown for Appellant T G Bain for Respondent

Judgment:

22 August 2018

JUDGMENT OF COLLINS J

Introduction

[1] The issue raised by Mr Holtham’s appeal is whether the end sentence of four years’ imprisonment imposed upon him in relation to 20 charges, including burglary, was manifestly excessive.

Background

[2]Mr Holtham’s offending may be summarised in the following way:

(1)The burglary charge stems from events on 28 July 2017, when Mr Holtham entered the premises of Pak’nSave in Petone. He had previously worked at that supermarket. He took a set of store keys and gained entry to the butchery section of the supermarket. He then unlocked doors to the rear entry of the butchery which enabled him and

HOLTHAM v NEW ZEALAND POLICE [2018] NZHC 2160 [22 August 2018]

an associate to later re-enter the premises and take meat products valued at $8,000.1

(2)On 29 July 2017, Mr Holtham was stopped whilst driving a Holden motor vehicle. Checks by the police revealed that his licence had been suspended.2

(3)On 7 August 2017, Mr Holtham stole a bank credit card from a vehicle parked at a service station in Miramar.3

(4)Later on 7 August 2017, Mr Holtham gave the credit card to an associate. They made three purchases of $79.80, $57.10 and $54.50 using that credit card. These incidents resulted in three charges of dishonestly using a document.4

(5)Between 14 September and 16 September 2017, Mr Holtham unlawfully took a Honda motor vehicle valued at $1,600 by tampering with the vehicle’s ignition. The vehicle was recovered but the vehicle’s contents, valued at $700 were not recovered.5

(6)Between 17 September and 18 September 2017, Mr Holtham entered a property and unlawfully gained access to a Toyota Corolla. No items were taken from that vehicle. Mr Holtham then gained access to the victim’s Subaru motor vehicle, valued at $2,500 and stole it from the property. That vehicle has not yet been recovered. This offending gave rise to two charges, namely unlawfully interfering with a motor vehicle6 and unlawfully taking a motor vehicle.7

1      Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.
2      Land Transport Act 1998, s 32(1)(c) and (3); maximum penalty three months’ imprisonment.
3      Crimes Act 1961, s 219 and 223(c); maximum penalty one year’s imprisonment.
4      Section 228(1)(b); maximum penalty seven years’ imprisonment.
5      Section 226(1)(a); maximum penalty seven years’ imprisonment.
6      Section 226(2); maximum penalty two years’ imprisonment.
7      Section 226(1)(a); maximum penalty seven years’ imprisonment.

(7)On 18 September 2017, Mr Holtham unlawfully interfered with a motor vehicle by attempting to open the door of a Jeep. When he was confronted by the owner of the vehicle, Mr Holtham drove off at speed.8

(8)Between 19 September and 6 October 2017, Mr Holtham committed seven acts of theft.9 The offending…

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.

Continue reading Holtham v Police

Details

AGLC: Holtham v Police [2018] NZHC 2160
Case: [2018] NZHC 2160
Decision Date: 22 August 2018

CaseChat Overview and Summary

Edwin Holtham appeals against his sentence imposed by the District Court. The District Court judge had sentenced Holtham to four years' imprisonment for 20 charges, including burglary. Holtham argues that the end sentence was manifestly excessive. The court must decide whether there was an error in the sentence imposed and whether a different sentence should be imposed. The starting point of three years for the burglary charge was considered too high by the court, which found a starting point of 24 months to be appropriate. The uplift of 18 months for additional imprisonable offences was considered appropriate by the court, which noted the seriousness of Holtham's offending. The uplift of 12 months for Holtham's previous criminal history was considered too high by the court, which found an uplift of six months to be adequate. The court found that the discount provided to Holtham for his guilty pleas and efforts at rehabilitation were adequate. The court concludes that the sentence imposed by the District Court was manifestly excessive and reduces the sentence to three years and two months' imprisonment. All other sentences imposed by the District Court are upheld.

Orders