Holtz v The the Queen - [2022] NZHC 245

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000495

[2022] NZHC 245

BETWEEN
HARLEY HOLTZ

Applicant

AND

THE QUEEN

Respondent

Hearing: 21 February 2022

Counsel:

J M Hudson for Applicant C P Howard for Respondent

Judgment:

22 February 2022

JUDGMENT OF VENNING J

This judgment was delivered by me on 22 February 2022 at 11.00am.

Registrar/Deputy Registrar Date……………

Solicitors/Counsel:
Jonathan Hudson, Manukau Crown Solicitor, Manukau

HOLTZ v R [2022] NZHC 245 [22 February 2022]

[1] Harley Holtz accepted a sentence indication and pleaded guilty to one charge of wounding with intent to cause grievous bodily harm. On 10 May 2019, Judge T V Clark sentenced Mr Holtz to four years nine months’ imprisonment.1 The Judge also indicated that, if this was not a second-strike offence, a 50 per cent minimum period of imprisonment would have been appropriate.2

[2] Mr Holtz seeks an extension of time to appeal against the sentence. His appeal was lodged on 4 November 2021. The proposed appeal is pursued on the basis of a report under s 27 of the Sentencing Act 2002 which Mr Holtz has recently obtained. The report was not before the District Court. Mr Hudson submits that the information contained in the s27 report warrants leave being granted to have the sentence reconsidered. He argues that, in the absence of information about Mr Holtz’ upbringing and personal circumstances, the sentence imposed was manifestly excessive.

Background

[3] The victim of Mr Holtz’ offending was a 57 year old truck driver. At the time, Mr Holtz was also a truck driver. The victim and Mr Holtz were known to each other as they worked for the same trucking company which had a base in Auckland.

[4] At about 9.30 pm on 21 August 2018, the victim arrived at the work address, having driven up from Wellington. He was unloading his truck and removing signage from it when he saw Mr Holtz walking towards him holding a flat piece of steel in both hands. The object Mr Holtz was holding was a strip of steel about the size of a machete, each end bent upwards at 90 degrees and which narrowed into sharp spikes. The victim could see some cloth wrapped around the piece of steel where Mr Holtz was holding it. The victim called out “it’s only me” and said he was removing gear from his truck. He then turned his back and carried on with the unloading. As he reached the back of his truck, he felt something strike the left side of his head which dazed him. When the victim turned around, he saw Mr Holtz coming towards him holding the piece of steel in both hands. The victim held up both hands in self-defence

1 R v Holtz [2019] NZDC 8894.
2 As a second-strike offence, Mr Holtz has to serve the full term of imprisonment.

and asked Mr Holtz what he was doing. Mr Holtz did not respond except to…

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 the Queen

Details

AGLC: Holtz v The the Queen [2022] NZHC 245
Case: [2022] NZHC 245
Decision Date: 22 February 2022

CaseChat Overview and Summary

Harley Holtz has applied for leave to appeal against his sentence, which was imposed by Judge T V Clark on 10 May 2019. Holtz was sentenced to four years nine months’ imprisonment for one charge of wounding with intent to cause grievous bodily harm. The Crown opposes the application on the basis that the appeal is out of time and lacks merit. The primary issue for the Court was whether Holtz’s application for an extension of time to appeal was justified, and if so, whether the evidence he wished to rely upon was admissible.

Holtz’s application for an extension of time to appeal was made almost two and a half years late. The Court must balance the wider interests of society in the finality of decisions against the interests of the individual applicant. The delay in Holtz either raising the point was extensive and not satisfactorily explained. Holtz sought to rely on a s 27 report which he obtained after the sentencing hearing and which was not before the District Court. While the report was credible, it was not fresh, and the Court must assess its strength and potential impact on the sentence. If the Court considers the sentence imposed would be manifestly excessive if the evidence is excluded, then the report should be admitted notwithstanding that it is not fresh.

In this case, the Court found that even if some further allowance was made for the factors referred to in the s 27 report, other adjustments and factors put the end sentence squarely in the range of four and a half to five years’ imprisonment. The sentence imposed of four years nine months’ imprisonment was clearly within the range available to the Judge. The Court held that the applications to adduce further evidence and for leave to extend the time for appeal are dismissed.

Orders