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 involved Mr Holtham:

(i)obtaining fuel from a service station in Palmerston North valued at $61.80 before driving off without making payment;

(ii)entering the Bunnings store in Feilding, where Mr Holtham assisted an associate in stealing a deadlock valued at $414.45.

(iii)gaining entry to a Ford Ranger vehicle by breaking the glass to the front passenger door, causing approximately $700 worth of damage. He also got into that vehicle and stole a radar detector valued at $549;

(iv)stealing number plates from a Mitsubishi vehicle, valued at $50;

(v)obtaining $95 worth of petrol from a service  station  in  Upper Hutt without paying for that petrol; and

(vi)on two occasions stealing the registration plates from two Subaru cars. The value of the registration plates was $50.

(9)On 7 October 2017, Mr Holtham was found driving a Subaru motor vehicle which had been stolen from an address five days earlier. The police endeavoured to stop Mr Holtham by giving chase and activating the siren of their patrol car. Mr Holtham turned his vehicle lights off and kept driving at high speed to evade police. He overtook on a double

8      Crimes Act 1961, s 226(2); maximum penalty two years’ imprisonment.

9      Sections 219 and 223(d); maximum penalty three months’ imprisonment.

yellow line into on-coming traffic. He reached speeds of up to 125 km/h in an 80 km/h zone. The vehicle he was driving was eventually brought to a stop by road spikes. As a consequence, Mr Holtham was charged with driving in a dangerous manner10 and failing to stop.11

(10)Mr Holtham was also charged with breaching his release conditions for failing to report to a probation officer on 9 August 2017.12

District Court decision

[3]    On 7 March 2018, Mr Holtham was sentenced by Judge Kelly in the District Court at Porirua.13 Mr Holtham was sentenced to three years’ imprisonment on the lead charge of burglary and one year imprisonment, to be served cumulatively, for the charge of unlawfully taking a motor vehicle. All other sentences of imprisonment were imposed concurrently. Mr Holtham was also disqualified from driving for a total of nine months in relation to the driving offences.

[4]    In reaching her decision, Judge Kelly adopted a starting point of three years’ imprisonment for the burglary charge. She then imposed an uplift of 18 months for the remaining imprisonable offences. Judge Kelly then applied a  further  uplift  of 12 months’ imprisonment to recognise Mr Holtham’s previous criminal history. Judge Kelly then reduced the sentence by six months to reflect Mr Holtham’s remorse and his efforts at restorative justice. A further discount of 12 months was afforded to Mr Holtham in recognition of his guilty pleas. This resulted in the end sentence of four years’ imprisonment.

Mr Holtham’s circumstances

[5]    Mr Holtham is now 30 years old. Prior to the convictions that are the subject of this appeal, he had acquired 34 criminal convictions. Most relevantly he was sentenced in April 2013 to three years and six months’ imprisonment in relation to five

10     Land Transport Act 1998, s 35(1)(b); maximum penalty three months’ imprisonment.

11     Section 52A(1)(a)(i) and (2); maximum penalty a fine not exceeding $10,000.

12     Parole Act 2002, s 71(1); maximum penalty one year’s imprisonment.

13     Police v Holtham [2018] NZDC 4417.

burglaries. He also received cumulative sentences of one year’s imprisonment at that time for unlawfully taking a motor vehicle and for arson.

[6]    At the time of the offending covered by this appeal, Mr Holtham was subject to parole conditions. He was recalled to prison on 9 October 2017. The end date for his previous sentences of imprisonment is 11 February 2019.

[7]    Mr Holtham is in a relationship and has four children from three previous relationships. He advised the pre-sentence report writer that he was introduced to methamphetamine following his release on parole and that he quickly became addicted to that drug.

[8]    Mr Holtham was admitted into a Release to Work programme in November 2015. He was provided with employment at Pak’nSave Petone, where he was highly regarded by his employer, the owner of the premises burgled by Mr Holtham on     28 July 2017.

Principles governing the appeal

[9]    Mr Holtham’s appeal is governed by s 250 of the Criminal Procedure Act 2011. Thus, I must allow his appeal if I am satisfied that:

(1)for any reason, there is an error in the sentence imposed; and

(2)a different sentence should be imposed.

[10]   The Court of Appeal has explained that the concept of “manifestly excessive” is still applicable to sentence appeals.14 The Court of Appeal has also explained:15

The discretion to vary [a] sentence [on appeal] is not unfettered; this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer. There must be an error vitiating the exercise of the original sentencing discretion. In short, this Court must proceed on an “error principle”.

14     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

15     At [29], citing R v Shipton [2007] 2 NZLR 218 (CA) at [138].

Grounds of appeal

[11]Five grounds of appeal are advanced:

(1)that the sentence starting point of three years in relation to the burglary charge was too high;

(2)the uplift of 18 months for additional offending was too high;

(3)the uplift of 12 months for Mr Holtham’s previous criminal history was too high;

(4)Judge Kelly erred in not giving Mr Holtham full credit for his early guilty pleas; and

(5)Judge Kelly erred by not giving adequate recognition to the attempts made by Mr Holtham in relation to rehabilitation.

Analysis

[12]   Ms Brown, counsel for Mr Holtham challenges individual components of the sentence imposed by Judge Kelly. Ultimately, however, the issue is whether or not the end sentence imposed by the Judge was manifestly excessive.16

First ground of appeal

[13]   Ms Brown challenged the three years starting point for the burglary charge. She submitted that a starting point of 18 months was appropriate in the circumstances of this case. She gained some support for this submission from Police v O’Neill, in which the District Court adopted a starting point of 18 months’ imprisonment for offending similar to that of Mr Holtham.17

16     Ripia v R [2011] NZCA 101 at [15].

17     Police v O’Neill [2016] NZDC 10659.

[14]   Fixing the starting point for a burglary sentence involves an evaluation of the culpability of the offender.18 In the present case there are three factors that demonstrated a high level of culpability on the part of Mr Holtham. Those factors are:

(1)The significant breach of trust involved in the offending. Mr Holtham had been given a generous opportunity when he was admitted into the Release to Work programme and provided with employment at Pak’nSave in Petone. Through that work he acquired knowledge about the layout and security arrangements in the supermarket. He then used that knowledge to commit the burglary on 28 July 2017.

(2)The value of the goods stolen in the burglary was significant.

(3)There was premeditation involved in the offending. The Sentencing Act 2002 recognises this as an aggravating factor when determining a sentence.19

[15]   The starting point of three years was, however, very high compared to other cases I have examined20 in which the starting points ranged from 18 to 21 months’ imprisonment.

[16]   While the amounts involved in the other cases were less than the amounts stolen by Mr Holtham, I am satisfied that the appropriate starting point should not have been more than 24 months in this case.

Second ground of appeal

[17]   Ms  Brown  submits  that  the  uplift   of   18   months’  imprisonment   for Mr Holtham’s additional imprisonable offending was excessive and did not properly reflect the seriousness of that offending.

18     R v Nguyen CA110/01, 2 July 2001.

19     Sentencing Act 2002, s 9(1)(i).

20     McCormick v Police [2012] NZHC 309; R v Stevens [2009] NZCA 190; and Police v O’Neill, above n 17.

[18]   In my assessment, an uplift was required to reflect Mr Holtham’s other imprisonable offending. The scale of that uplift needed to reflect the magnitude and seriousness of his other offending. By my calculation there were 18 other imprisonable charges for which Mr Holtham was sentenced. His offending can be correctly described as “flagrant and prolific”. The offending was undertaken by Mr Holtham without regard to the impact of his offending on his victims.

[19]   While the uplift of 18 months was on the high side, I do not think that by itself was manifestly excessive.

Third ground of appeal

[20]   Ms Brown submitted that the uplift of a further 12 months’ imprisonment to reflect Mr Holtham’s previous convictions was also excessive.

[21]   The number and seriousness of previous convictions is an aggravating factor that can properly be taken into account when sentencing a defendant.21 Care, however, needs to be taken to ensure a defendant is not punished more than once for his or her previous offending.

[22]   In the present case, the uplift of 12 months’ imprisonment for Mr Holtham’s previous convictions reflected a 22 per cent uplift on the provisional sentence of four and a half years reached by Judge Kelly. That, by any standard, was a very high uplift. It was particularly punitive when regard is had to the fact that Mr Holtham will now serve the full term of the prison sentences imposed in 2013.

[23]   Although Mr Holtham has a disconcerting number of convictions, those convictions were not sufficiently compelling to justify the 12 months uplift adopted by Judge Kelly. In my assessment, an uplift of six months’ imprisonment was more than adequate to reflect the objective of s 9(1)(j) of the Sentencing Act.

21     Sentencing Act 2002, s 9(1)(j).

Fourth ground of appeal

[24]   Mr Holtham pleaded guilty to 19 charges within six weeks of his first appearance and he indicated a guilty plea to the 20th charge prior to the case review hearing. The guilty plea was not formally entered until the day of sentencing because that was more practical.

[25]   A discount of 12 months was provided by Judge Kelly to take account of    Mr Holtham’s guilty pleas. This equated to a 20 per cent reduction.

[26]   While a more generous discount could have been provided, the discount actually given was not inconsistent with the guidance provided by the Supreme Court in Hessell v R.22

Fifth ground of appeal

[27]   Ms Brown submits that the discount of six months provided to Mr Holtham to reflect his remorse and his efforts at restorative justice were inadequate. That is not a submission that gains traction. Judge Kelly was fully aware of Mr Holtham’s personal circumstances, including his efforts to restorative justice. The discount of six months’ imprisonment to reflect these factors was adequate in the circumstances of this case.

Summary

[28]   In my assessment, the appropriate end sentence in this case was three years and two months’ imprisonment. I reach that sentence by setting a starting point of two years and six months’ imprisonment for the burglary charge. I then adopt Judge Kelly’s uplift of 18 months’ imprisonment to reflect Mr Holtham’s other imprisonable offending. To that I add a further six months uplift to reflect Mr Holtham’s previous offending. I then provide a six months discount to reflect his remorse and efforts at rehabilitation. From there I deduct 20 per cent to reflect his guilty plea.

[29]   In these circumstances, I am satisfied that the sentence imposed was “manifestly excessive”. Accordingly, I allow Mr Holtham’s appeal and quash the

22     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

sentence of three years’ imprisonment for the burglary charge and substitute that sentence with one of two years and two months’ imprisonment.

[30]   All other sentences imposed by Judge Kelly are upheld, including the 12- month cumulative sentence of imprisonment for unlawfully taking a motor vehicle.

[31]   This produces a total end sentence of three years and two months’ imprisonment.

D B Collins J

Solicitors:

Public Defence Service, Wellington for Appellant Crown Solicitor, Wellington