Legal Research
Cases
Holtz v The King

Holtz v The King

Case [2024] NZHC 3622 29 November 2024

Sentencing

Discount for Guilty Plea

Uplift for Previous Convictions

Admissibility of Evidence

Psychological Report

Mitigating Circumstances

Criminal Law

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2024-488-103

[2024] NZHC 3622

BETWEEN
BISHOP HOLTZ

Appellant

AND

THE KING

Respondent

Hearing: 25 November 2024 (heard in Auckland via VMR)

Appearances:

J A Young for Appellant

B M Bosomworth for Respondent

Judgment:

29 November 2024

JUDGMENT OF BLANCHARD J

This judgment was delivered by me on Friday, 29 November 2024 at 4:15 pm.

Registrar/Deputy Registrar

Solicitors: Marsden Woods Inskip Smith (Office of the Crown Solicitor), Whangarei Counsel: J A Young, Whangarei

HOLTZ v R [2024] NZHC 3622 [29 November 2024]

[1] Ms Holtz appeals against a decision of Judge D J McDonald dated 11 October 2024 sentencing Ms Holtz in relation to a charge of possession of methamphetamine for the purpose of sale.1 She was sentenced to two years 11 months’ imprisonment.

The offending

[2] On 28 March 2023, the police executed a search warrant at Ms Holtz’s home address. They located 35.2 grams of methamphetamine. In addition, indicators of a commercial operation were present including four police radios, two sets of scales, a ‘tick list’, working CCTV, and $5,720 in cash.

[3] Mr Holtz was jointly charged with possession of a class A controlled drug, namely methamphetamine, for the purpose of supply.2 The co-offenders were her partner, Tyson Wihongi, and Sione Mangu.

[4] On 13 September 2023, Mr Mangu pleaded guilty to the above charge along with five charges of offering to supply methamphetamine and one charge of supplying methamphetamine. He entered the guilty plea having received a sentence indication from Judge G Tomlinson which adopted a starting point of three years and six months’ imprisonment.3

[5]On 8 March 2024, Ms Holtz entered a guilty plea to the charge.

[6] Mr Wihongi defended the charge at a jury trial and was found guilty on 2 August 2024. Judge McDonald presided over the trial.

[7] On 9 October 2024, Mr Mangu was sentenced in the Whangārei District Court to two years and two months’ imprisonment.4

1      R v Holtz [2024] NZDC 25129.
2      Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a). Maximum penalty: life imprisonment.
3      R v Mangu CRI-2023-088-2997, 13 September 2023.
4      R v Mangu [2024] NZDC 24670.

[8] On 11 October 2024, Ms Holtz was sentenced by the Judge to two years and 11 months’ imprisonment.5 Mr Wihongi was sentenced to three years and 11 months’ imprisonment.6

Decision under appeal

[9] The Judge noted that the starting point guideline judgments are Zhang v R7 and Berkland v R.8 The Judge took account of the amount of methamphetamine involved. Based on that he put the case in band 2 of Zhang. However, he said the weight of drugs is not always the primary consideration. As was said in Berkland, the defendant’s role has to be considered.9

[10] The Judge concluded that Ms Holtz and Mr Wihongi were together operating a small-time drug-selling operation from their home. He concluded that Ms Holtz’s role was greater than…

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 Holtz v The King

Details

AGLC: Holtz v The King [2024] NZHC 3622
Case: [2024] NZHC 3622
Decision Date: 29 November 2024

CaseChat Overview and Summary

Ms Holtz appeals against the two years 11 months' imprisonment sentence imposed on her by Judge D J McDonald for possession of methamphetamine for the purpose of sale. The appeal raises issues regarding the starting point, uplift for previous convictions, discount for guilty plea, additional discounts for the psychological report, s 27 report, and motherhood, and reduction for time spent on electronically monitored (EM) bail. Ms Holtz argues that the starting point should be lower, the uplift for previous convictions is excessive, the discount for her guilty plea is too low, and that there should have been further discounts for the psychological report, s 27 report, and motherhood, and a reduction for time spent on EM bail.

Blanchard J found that the starting point of four years was appropriate, given Ms Holtz's greater role in the drug-selling operation compared to her co-offenders. The 20 per cent uplift for previous convictions was justified, considering Ms Holtz had 58 previous convictions for similar offences and had offended while on parole. The 15 per cent discount for guilty plea was within range, considering the late timing of her plea. The psychological report, s 27 report, and motherhood did not warrant further discounts, as they had already been considered in the 10 per cent discount for addiction. However, an additional five per cent discount was justified to recognise the impact of Ms Holtz's imprisonment on her children. Blanchard J also concluded that Ms Holtz should have received a reduction of three months for her time on EM bail.

Applying these figures, Blanchard J reached an end sentence of two years and 11 months' imprisonment, the same as the sentence imposed by the Judge. However, due to the errors in methodology, this sentence was not manifestly excessive. The appeal was dismissed.

Orders