Holtz v The King
[2024] NZHC 3622
•29 November 2024
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 Mr Mangu’s. He based this conclusion on two things. First, Mr Mangu did not live at the house. He was a visitor there. Second, he had no previous convictions for dealing in methamphetamine (whereas Ms Holtz had many).10
[11] Based on these considerations, the Judge chose a starting point of four years’ imprisonment for Ms Holtz (and Mr Wihongi).11
[12] The Judge then uplifted Ms Holtz’s starting point for her previous convictions for dealing in methamphetamine. He noted that Ms Holtz is 27 and has a large number of previous convictions.12 She had 58 previous convictions of this kind. Based on this, the Judge applied an uplift of 20 per cent. The Judge said that took the total starting point to four years and eight months’ imprisonment.13
5 R v Holtz, above n 1, at [32].
6 At [38].
7 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
8 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
9 R v Holtz, above n 1, at [12]–[13].
10 At [14]–[15].
11 At [17]–[18].
12 At [21].
13 At [23].
[13] Ms Young, for Ms Holtz, sought a discount of 20 per cent for her guilty plea. However, the Judge considered that was too high because she had not pleaded guilty until almost a year after her first appearance. The Judge gave a discount of 15 per cent.14
[14] The Judge accepted that Ms Holtz was addicted to methamphetamine. For this addiction he gave a discount of 10 per cent.15
[15] The Judge then noted that Ms Holtz had undergone rehabilitation recently with the Ngāti Hine Health Trust. He said that the rehabilitation had been successful. Ms Holtz had completed the programme. He gave a discount of 10 per cent for this.16
[16] The Judge did not give any further discounts. In particular, he did not give a discount for matters contained in a psychological report or a s 27 report or because Ms Holtz is a mother. He concluded that there was no nexus between what was contained in the s 27 report and her offending. He considered that Ms Holtz had chosen methamphetamine over her children. It was her offending that had kept her apart from her children.17
[17] Nor did he give any credit for the six months Ms Holtz had spent on electronically monitored (EM) bail without breach.18 The Judge said that Ms Holtz was entitled to a discount for her time on EM bail, but then did not account for it in the sentence he imposed.19
[18] The Judge then applied the discounts to the four years and eight months. As I have said, the final result was two years and 11 months’ imprisonment.20
14 At [24].
15 At [25].
16 At [26].
17 At [25], [27] and [28].
18 At [27]–[28].
19 At [29] and [31].
20 At [31]–[32].
Incorrect sentencing methodology
[19] It is common ground that the Judge made an error in his sentencing methodology. The Judge applied an uplift for Ms Holtz’s previous convictions and then discounted the resulting four years and eight months for her personal mitigating factors. This resulted in the discounts being applied to the uplift. This is contrary to the approach laid down in Moses v R.21
[20] The correct approach is to apply the discounts to the four years’ imprisonment, not the uplifted four years and eight months. Had the correct approach been applied, a sentence of three years and three months’ imprisonment would have been reached. This error caused a reduction of four months’ imprisonment or 10 per cent to the benefit of Ms Holtz. Ms Holtz also benefited from the Judge calculating the 20 per cent uplift as eight months. In fact, the uplift applied should have been just under 10 months.
Approach to appeal
[21] This is an appeal against sentence under s 244 of the Criminal Procedure Act 2011. The Court must allow the appeal if it is satisfied that there was an error in the sentence such that a different sentence should be imposed.22
[22] A manifestly excessive sentence will be one in which a material error exists.23 Whether a sentence is manifestly excessive is assessed on the end sentence reached, rather than the process by which it was reached.24
Grounds of appeal
[23]Ms Holtz appeals based on the following:
(a)the starting point is too high;
21 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
22 Criminal Procedure Act 2011, s 250(2).
23 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].
24 At [36].
(b)the uplift for previous offending is too high;
(c)the discount for guilty plea was too low;
(d)there should have been a discount for matters contained in the s 27 report, the psychological report, and because Ms Holtz is a mother; and
(e)there should have been a reduction for the time Ms Holtz spent on EM bail.
The starting point
[24] Ms Young argues that Ms Holtz should have received the same starting point as Mr Mangu, that is, three years and six months. This is on the basis that Mr Mangu had more methamphetamine in his possession and faced additional charges that Ms Holtz did not.
[25] However, I agree with Mr Bosomworth that the starting point of four years should not be disturbed. The Judge concluded that Mr Mangu’s role was a lesser one than Ms Holtz. The Judge was in a good position to assess their respective roles. I see no basis to disturb the Judge’s finding in this regard.
Uplift for previous convictions
[26] As I have said, the Judge applied an uplift of 20 per cent. Ms Young argued that this was excessive and an uplift of four to five per cent should have been applied.
[27] Ms Young’s submission focused on the decisions in Tagataese v Police25 and Orchard v R.26 However, I see nothing in these authorities that supports Ms Young’s argument. While an uplift of 10 per cent was reduced to five per cent by Anderson J in Tagataese, Anderson J herself said, “each case turns on its own facts”.27 The facts in both Tagataese and Orchard are very different to those in the present case.
25 Tagataese v Police [2024] NZHC 1859.
26 Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37.
27 Tagataese v Police, above n 25, at [27].
[28] The Court of Appeal in Lavea v R commented that uplifts of 22 and 23 per cent have been approved for defendants who have previous convictions for similar offending and who offended while on parole for those offences.28 As I have said, Ms Holtz has 58 previous convictions for like offending. She has also offended while on parole. A 20 per cent uplift was justified.
Discount for guilty plea
[29] Ms Young argued that Ms Holtz should have received a 20 per cent discount for her guilty plea. However, as I have explained, her guilty plea came just short of a year after she first appeared and after 13 court appearances. In my view, a discount of 15 per cent was within range.
Psychological report, s 27 report, and motherhood
[30] The Judge afforded Ms Holtz a 10 per cent downward adjustment for addiction but no further reduction for the psychological report, the s 27 report, or because Ms Holtz is a mother.
[31] Ms Young argued that Ms Holtz should have received a further discount of five to 10 per cent in light of these matters.
[32] The psychological report indicates [redacted]. Ms Young submitted this suggests real vulnerability.
[33]The s 27 report states that:
(a)Ms Holtz’s father was for half of Ms Holtz’s life an active member of the Black Power gang and she grew up in a socioeconomically deprived neighbourhood surrounded by other Black Power members. As a child, she was exposed to house parties, adult violence, heavy consumption of alcohol, and police raids. She also remembers her neighbour being murdered and her father being held at gun point.
28 Lavea v R [2014] NZCA 192 at [24].
(b)[Redacted].
(c)She smoked cigarettes from the age of five. By the time she was 10 smoking had become a regular habit. Further, she started smoking cannabis at age nine and she was 11 when she started drinking alcohol regularly. She began smoking methamphetamine at age 15.
(d)She withdrew from school at 13 and enrolled in foundational courses, from which she also eventually withdrew. Around this time also she ran away from home and lived a “street life”.
(e)She fell pregnant at 15. When she was 16 she had her now 10-year-old twins.
(f)She suffered from physical, psychological, [redacted] from her former partner. When she left her partner, she left her children behind.
(g)At this time, suffering from grief for the loss of her children and trauma of the abuse she had been exposed to, she became heavily addicted to methamphetamine. She started to sell methamphetamine at age 17 because this was the only way she could fund her addiction.
[34] She relies on McLean v R,29 Clarke v R,30 and Carr v R31 to argue that a discount should have been allowed as a result of these matters.
[35] Ms Young said that Ms Holtz has five children. The youngest is two years old. One needs a hip replacement and therefore has high needs. Ms Young relies on Philip v R32 and McLean v R33 as supporting her submission that a discount should be allowed for this.
29 McLean v R [2024] NZCA 298 at [15]–[21].
30 Clarke v R [2021] NZCA 96 at [28]–[35].
31 Carr v R [2020] NZCA 357 at [55]–[67].
32 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [47]–[52].
33 McLean v R, above n 29, at [22]–[29].
[36] Mr Bosomworth submitted that Ms Holtz’s addiction to methamphetamine has contributed to [redacted]. Her cognitive ability has been affected by her drug use. He submits that her drug use has been caused by her addiction, for which she has received a 10 per cent reduction. A further reduction would result in double counting.
[37] He also submitted that the Judge was right to find there is no nexus between the matters in the s 27 report and Ms Holtz’s offending. He commented that the sexual abuse when she was young and abusive relationship are self-reported. He said that any abuse Ms Holtz suffered stemmed from her addiction and she has received a 10 per cent adjustment for addiction. Again, for her to receive any further discount would be double counting.
[38] Finally, Ms Bosomworth submitted that a reduction for parenthood may be allowed when the defendant is the sole carer of the child, but that is not the case here.
[39] In my view the matters contained within the s 27 report justify a greater discount than the combined 20 per cent allowed by the Judge for Ms Holtz’s personal mitigating circumstances.34 Ms Holtz’s disadvantaged background, limited education, early exposure to gangs and unstable living circumstances are causative contributors to her offending.35 They, in addition to Ms Holtz’s addiction, explain how she came to offend.36
[40] I also accept that some discount is justified to recognise the impact of Ms Holtz’s imprisonment on her children. The focus of a discount on these grounds is the interests of the children, not whether an offender’s own circumstances warrant any further discounts.37 It does not matter that Ms Holtz is not the sole caregiver.38
[41] I consider that an additional five per cent discount is justified. This results in a discount of 25 per cent for Ms Holtz’s personal mitigating circumstances.39
34 10 per cent for addiction and 10 per cent for rehabilitative prospects.
35 Berkland v R, above n 8, at [108]–[109] and [116].
36 At [109].
37 Ah Tong v R [2024] NZCA 144 at [13].
38 Philip v R, above n 32, at [56].
39 See Manuel v R [2022] NZHC 654 where Doogue J held, at [51], that a discount of 22 per cent in similar circumstances was “at the lower end of the continuum”.
Time spent on EM bail
[42] It is common ground that a downward adjustment should have been made for time spent on EM bail.
[43] Ms Young relies on Poi v R40 to argue that Ms Holtz should have received a discount of 50 per cent of time spent, that is, three months for her time on EM bail.
[44] In contrast, Mr Bosomworth argues that a reduction of one to two months’ imprisonment could have been afforded. He notes that around four of the six months Ms Holtz spent on EM bail was during the period in which she was in a residential rehabilitation facility. A person’s freedom is necessarily restricted while in such a facility. If the time she spent in the facility is excluded, her freedom was only restricted for two months while she was on EM bail.
[45] My conclusion is that Ms Holtz should receive a reduction of three months. If the reduction that a defendant would otherwise receive is reduced as a result of undergoing residential rehabilitation, that would provide a perverse incentive not to undergo such treatment.
Conclusion
[46] I have concluded that Ms Holtz’s personal mitigating circumstances justify a discount of 25 per cent.
[47] I have also concluded that Ms Holtz should have received a reduction of three months’ imprisonment for her time on EM bail.
[48] Applying these figures, I reach an end sentence of two years and 11 months’ imprisonment. Because of the errors in methodology set out above, this is the same end sentence as that reached by the Judge.
[49]Accordingly, the sentence imposed by the Judge was not manifestly excessive.
40 Poi v R [2020] NZCA 312. See also Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348 at [62]; and Kissling v R [2023] NZCA 37 at [11(b)].
Result
[50]The appeal is dismissed.
Blanchard J
0
13
0