Holtz v The Queen

[2013] NZCA 370

IN THE COURT OF APPEAL OF NEW ZEALAND

     CA205/2013
[2013] NZCA 370

BETWEEN	HARLEY HOLTZ Appellant
AND	THE QUEEN Respondent

Hearing:	12 August 2013
Court:	Harrison, Venning and Courtney JJ
Counsel:	M S Fernando for Appellant B D Tantrum and E C Rutherford for Respondent
Judgment:	14 August 2013 at 11 am

JUDGMENT OF THE COURT

A    Extension of time to appeal granted.  

BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

1. Following a guilty plea, Harley Holtz was sentenced to a term of four years three months imprisonment on one charge of wounding with intent to cause grievous bodily harm.[1]  He appeals that sentence on the ground that it is manifestly excessive.

   [1]R v Holtz DC North Shore CRI-2011-044-153, 18 February 2013.

2. Mr Holtz requires an extension of time to bring his appeal.  The delay has been explained by his difficulty communicating with his lawyer while in prison.  The Crown did not oppose Mr Holtz’s application and we grant the extension.

3. At the time of the offence Mr Holtz, his co-offender, Wayne Douglas Anderson, and the victim were all serving prisoners at Paremoremo Prison.  The injuries inflicted included a ruptured spleen and punctured lung which resulted in the victim spending a week in hospital.

4. In sentencing, Judge Cunningham took a starting point of four years nine months.  This was the same starting point taken by Judge Bouchier when giving a sentencing indication at an earlier stage in the case.[2]  No issue was taken by either party with the starting point.  The Judge applied a 10 per cent discount for Mr Holtz’s guilty plea to reach the end sentence of four years three months.[3] 

   [2]R v Holtz DC North Shore CRI-2011-044-153, 21 April 2011.

   [3]Mr Anderson received an end sentence of four years three months.

5. Mr Holtz advanced his appeal on the ground that the Judge had erred in failing to:

   (a)take account of his explanation that the attack had been in
   self-defence;

   (b)give a greater discount for the guilty plea;

   (c)give a discount for his youth; and

   (d)take account of the fact that this offending resulted in him being unable to apply for parole in respect of the sentence he was already serving.

6. We do not accept that the Judge made any error.

7. The prospect of self-defence was based solely on Mr Holtz’s assertion that the attack had been a pre-emptive strike in response to previous threats by the victim.  This suggestion was raised at the sentencing indication hearing and rejected by Judge Bouchier.  Mr Holtz elected not to proceed to a disputed facts hearing. The sentencing Judge was bound to sentence on the basis of the summary of facts.

8. When Judge Bouchier gave her sentencing indication in April 2011 she indicated that a discount of 25 per cent would be given for a guilty plea.  However, Mr Holtz did not enter a plea until 27 August 2012, the fifth call of the matter.  There had been several previous adjournments, not all of which were attributable to Mr Holtz but we do not see that this makes any difference.  Mr Fernando suggested that the delay in reaching a decision to plead guilty might be attributable to Mr Holtz’s youth and inclination to place greater weight on advice from other prisoners as opposed to his counsel.  We reject that suggestion (for which there was no evidential basis) as a reason for departing from the settled practice of allowing lower discounts for later pleas.

9. In terms of the youth discount, Mr Holtz was 20 at the time of the incident.  The Judge referred to that as being “at the cusp” of whether the Court might consider a discount for youth.[4]  She declined to give such a discount on the basis that her refusal was to be balanced against the fact that she had not uplifted the starting point to reflect Mr Holtz’s extensive previous record which included a conviction for aggravated robbery, the sentence for which he was still serving at the time of this offence.  Although a discount for youth could have been given, so too could an uplift for the previous convictions.  We therefore see no error in the end result.

   [4]R v Holtz, above n 1, at [8].

10. Finally, we do not accept that Mr Holtz’s loss of the privilege of applying for parole in respect of his earlier offence is a matter that the Judge could or should have taken into account.  Mr Fernando submitted that as Mr Anderson was not denied parole because he was not eligible, this resulted in a disparity between the offenders.  We do not accept this.  Issues of parole are not an appropriate basis on which to consider questions of disparity.[5]  Mr Holtz can address this aspect in his application for parole in relation to the present offence.

Result

[5]R v Maihi CA221/00, 16 August 2000.

1. The end sentence is not manifestly excessive.  The appeal is dismissed.

Solicitors:
Crown Solicitor, Auckland for Respondent