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…

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 Queen

Details

AGLC: Holtz v The Queen [2021] NZHC 3158
Case: [2021] NZHC 3158
Decision Date: 23 November 2021

CaseChat Overview and Summary

Zion Holtz appeals his sentence of two years and three months’ imprisonment, with a minimum period of half, imposed by Judge Orchard. The appeal was brought under the Criminal Procedure Act 2011, which requires that an appeal be allowed if the appeal court is satisfied there is an error in the sentence and a different one should be imposed. Holtz argues the Judge should not have added a year to the conspiracy offence starting point as the threat to commit grievous bodily harm was not a bad example of its kind. Holtz also contends the Judge should have discounted the sentence by 20 percent because of mitigating features in a cultural report. Holtz’s counsel argues the result should be a sentence of one year and seven months’ imprisonment.

The appeal court assessed the sentence holistically, examining similar cases to the extent they can be found. The court found the gravity of Holtz’s offending mirrors that in the case of Chiyabi, which involved a three-year starting point, which was upheld by the Court of Appeal. Holtz’s offending has aggravating factors, including that the conspiracy was cold-blooded and the target a prison officer. The threat of grievous bodily harm was made against the same prison officer, acting in the execution of duty. The court was unpersuaded that further discount was warranted for the cultural report, finding a 10 percent discount sufficiently recognised the likely linkage between Holtz’s upbringing and the offending.

The appeal court found the sentence was not manifestly excessive, particularly given the aggravating factors. The appeal was dismissed.

Orders