Holtz v The Queen

[2021] NZHC 3158

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CRI-2021-488-000050

[2021] NZHC 3158

BETWEEN

ZION HAMUERA HOLTZ

Appellant

AND

THE QUEEN

Respondent

Hearing:	18 November 2021
Counsel:	AM Dooney for Appellant CS Taylor for Respondent
Judgment:	23 November 2021

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 23 November 2021 at 12 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Whangarei. AM Dooney, Whangarei.

HOLTZ v R [2021] NZHC 3158 [23 November 2021]

A sentence appeal

[1]                 Zion Holtz received a sentence of two years and three months’ imprisonment, with a minimum period of half. The victim is a prison officer and was acting in the execution of duty. Mr Holtz appeals. An appeal in this context must be allowed if the appeal Court is satisfied there is an error in the sentence and a different one should be imposed.1 Or, in short, if the sentence is manifestly excessive.2

Background

[2]                 Mr Holtz was in custody.   On 14 October 2020, he telephoned his sister.    Mr Holtz told her to give a firearm to an associate; have the associate go to the victim’s home; and then fire the gun at the home. Mr Holtz told his sister where the victim lived. The sister agreed to do as she was asked. Mr Holtz said he would call again that afternoon.

[3]                 The same day, the victim saw Mr Holtz and another putting toilet paper over a CCTV camera in the prison yard. She told him to remove it. Mr Holtz responded by saying he would have his friend “smack her over”. He became aggressive. The victim walked away. When the victim returned a little later, Mr Holtz said she would “regret this”. He pointed his fingers in the shape of a gun at the victim and said, “you’re going to fucking regret this bitch”.

[4]                 Authorities discovered Mr Holtz’s phone call earlier in the day. After some encouragement, Mr Holtz rang his sister and called off the plan to shoot at the victim’s home.

[5]                 Mr Holtz and his sister pleaded guilty to an offence of conspiring to discharge a firearm.3 Mr Holtz also pleaded guilty to threatening grievous bodily harm.4

1      Criminal Procedure Act 2011, s 250(2).

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

3      Arms Act 1983, s 53(3), and Crimes Act 1961, s 310; maximum penalty, three years’ imprisonment.

4      Crimes Act 1961, s 306; maximum penalty, seven years’ imprisonment.

[6]                 Judge D J Orchard adopted a global starting point of three years’ imprisonment, which she reduced to two years and three months for mitigating factors. The Judge imposed a minimum period of 50 percent.5

Mr Holtz’s case

[7]                 Mr Holtz argues the Judge should not have added a year to the conspiracy offence starting point (of two years’ imprisonment) as the threat to commit grievous bodily harm was not a bad example of its kind. On his behalf, Mr Dooney notes the threat was neither premeditated nor sophisticated. Mr Dooney also contends the Judge should have discounted the sentence by 20 percent because of mitigating features in a cultural report. The result, says Mr Dooney, should be a sentence of one year and seven months’ imprisonment.

Analysis

[8]                 The critical question in any sentence appeal is whether the sentence is manifestly excessive. Relatedly, how the sentence is comprised is  not important.  So, while the parties analysed the individual components of the starting point, it is better to assess this holistically. The best way to do this is by examining similar cases—to the extent they can be found. Some are appreciably less serious, but broadly comparable.

[9]                 Tenahu Tihema and others attempted to smuggle drugs and cigarettes into a prison. When prison officers intervened, Mr Tihema threatened one that he would “fuck him up” and repeatedly leapt toward him. The officer fell backwards into a ditch.

[10]              A starting point of 12 months’ imprisonment was adopted for all offences. On appeal, the 10-month end sentence was upheld. Thomas J noted the sentence could have been higher given Mr Tihema’s record. A contention the assault was “technical” was rejected. Thomas J said this characterisation “improperly minimises the offending”.6

5      R v Holtz [2021] NZDC 21034.

6      Tihema v R [2017] NZHC 1018 at [42].

[11]              Maia Rongonui pushed a prison officer “in the chest with both arms” and then lunged at her.7 He threatened to “smash” her.  Three weeks later, Mr Rongonui touched another prison officer’s bottom. When confronted about the offending, he said the officer “led me on”.8 Muir J upheld the starting point of nine months’ imprisonment and the cumulative imposition of the end sentence of six months’ imprisonment on an existing term of three years and nine months.

[12]              Floyd Boyland pointed a loaded shotgun at his mother and said, “I [am] going to shoot someone, or I could shoot you”. Simon France J acknowledged while there was “room for debate about whether [that] incident … would sustain a three-year starting point”,9 other unrelated offending did, once everything was considered together. The Judge said a starting point “of at least two years’ imprisonment was plainly within range” in relation to the threatening to kill incident.10 As will be apparent, that involved a loaded firearm.

[13]              Mark Sheridan “went berserk” at a Police station.11 He attempted self-harm with a syringe, attempted to attack Police personnel and threatened to kill at least one Police officer. On appeal, a two-year, eight-month sentence for the offence of threatening grievous bodily harm was quashed and replaced with a sentence of two years and two months’ imprisonment.

[14]              Bob Chiyabi threatened to kill his neighbour’s children (aged 14 and 6). In an unrelated arrest, Mr Chiyabi attempted to head butt a police officer. The District Court imposed a sentence of two and a half years’ imprisonment on the threatening to kill charge. The Court added three months for the assault. Mr Chiyabi was on parole when he made the threat and the assault was committed while he was on bail for the threat.  Noting that there was no tariff for the offence of threatening to kill, the   Court of Appeal said it had “no doubt the totality of the offending justified a starting point of around three years’ imprisonment”.12

7      Rongonui v Police [2017] NZHC 688 at [3].

8 At [4].

9      Boyland v Police [2015] NZHC 2463 at [9].

10 At [11].

11     Sheridan v Police HC Dunedin CRI-2010-412-000039, 25 November 2010 at [5].

12     R v Chiyabi [2008] NZCA 10 at [26].

[15]              Mr Holtz’s offending has aggravating factors. The conspiracy was cold-blooded; the target a prison officer. (The offence was not one of mere words: Mr Holtz arranged for his sister to provide another a firearm; have the other go to the victim’s home; and there discharge the weapon.) The threat of grievous bodily harm presents as more impulsive; but was again made against the same prison officer, acting in execution of duty. The combination is serious. Overall, the gravity of the offending mirrors Chiyabi. That case involved a three-year starting point, which, as observed, was upheld by the Court of Appeal. So, no error arises here.

[16]              The Judge deducted 15 percent for Mr Holtz’s guilty pleas. This is unchallenged. The Judge also deducted 10 percent for personal mitigating circumstances. This is challenged. Mr Dooney says the deduction should have been 20 percent.

[17]              At first instance and on appeal, Mr Dooney relied on a cultural report dated 12 November 2019, that is, a cultural report prepared for unrelated, antecedent offending. Mr Dooney says its “historical data” remains relevant, for, Mr Holtz’s stepfather was a member of the Black Power gang and Mr Holtz was “pretty much born into it”. Mr Dooney says this and the allied dimension of deprivation warranted a 20 percent discount.

[18]              Like the Judge, I accept the cultural report has some relevance insofar as it outlines Mr Holtz’s background. Again like the Judge, I am unpersuaded further discount was warranted. Importantly, Mr Holtz’s stepfather tried to manage gang business away from the home and was not violent to either Mr Holtz or his mother. A 10 percent discount sufficiently recognised the likely linkage between Mr Holtz’s upbringing and the offending, particularly Mr Holtz’s apparent difficulty with prison officials.

[19]              As observed, the critical question in any sentence appeal is whether the sentence is manifestly excessive. It is not given aggravating factors, particularly that the victim was a prison officer, acting in the course of duty.13

13     Sentencing Act 2002, s 9(1)(fa).

Result

[20]The appeal is dismissed.

……………………………..

Downs J