Hugenholtz v Police - [2020] NZHC 659

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-537

[2020] NZHC 659

BETWEEN
ZAINE JAMES HUGENHOLTZ

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 March 2020

Appearances:

J Rempe for Appellant

E L Thomas for Respondent

Judgment:

30 March 2020

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 30 March 2020 at 3.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:Meredith Connell, Crown Solicitor, Auckland Public Defence Service, Auckland

HUGENHOLTZ v POLICE [2020] NZHC 659 [30 March 2020]

[1] The appellant, Mr Hugenholtz, appeals against a sentence of three years, nine months’ imprisonment imposed by Judge Rollo on 18 November 2019.1

[2] Mr Hugenholtz contends the sentence was manifestly excessive because the Judge erred in identifying a starting point of four years and nine months’ imprisonment for what I shall refer to as the “violence offending”, and in failing to reduce the ultimate starting point of six years and 10 months’ imprisonment for “totality”.

Offences

[3]Mr Hugenholtz was sentenced for the following offending:

Violence

(a)28 March 2019: strangulation (x 2);2 threatening to kill (representative);3 assault with a weapon;4 and assault on a person in a family relationship (representative).5

Driving

(b)20 September 2018: driving whilst disqualified (second) 6 and careless use of a motor vehicle.7

(c)26 October 2018: dangerous driving;8 failing to stop;9 and driving whilst disqualified (third or subsequent).10

1      Police v Hugenholtz [2019] NZDC 23800. Other orders the Judge made as to reparation; disqualifying Mr Hugenholtz from driving; and a domestic violence order in favour of the victim are not disputed.
2      Crimes Act 1961, s 189A(b). The maximum penalty is seven years’ imprisonment.
3      Section 306. The maximum penalty is seven years’ imprisonment.
4      Section 202C. The maximum penalty is five years’ imprisonment.
5      Section 194A. The maximum penalty is two years’ imprisonment.
6      Land Transport Act 1998, ss 32(1)(a) and (3).     The maximum penalty is three months’ imprisonment and/or a fine of $4,500 and mandatory six months disqualification.
7      Section 37(1). The maximum penalty is a $3,000 fine.
8      Section 35(1)(b). The maximum penalty is three months’ imprisonment and/or a fine of $4,500 and mandatory six months disqualification.
9      Section 52A(l)(b). The maximum penalty is a $10,000 fine.
10     Sections 32(1)(a) and (4). The maximum penalty is two years’ imprisonment and/or a fine of
$6,000 and mandatory one-year disqualification

Miscellaneous

(d)13 October 2018: unlawfully taking a motor vehicle;11

24 October 2018: theft under $500 (being $90 worth of petrol);12 7 December 2018: breaching release conditions;13 and
31 March 2019: possession of utensils for smoking methamphetamine.14

Sentence

[4] The Judge adopted a starting point of three years, nine months’ imprisonment for the two charges of strangulation, the representative charge of threatening to kill, and the assault with a weapon. The Judge added 12 months’ imprisonment for the representative charge of assault on a person in a family relationship. This brought the starting point for the violence offending…

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.

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Details

Case: [2020] NZHC 659
Decision Date: 30 March 2020

CaseChat Overview and Summary

Zaine James Hugenholtz appeals against a sentence of three years, nine months' imprisonment imposed by Judge Rollo for various serious offences, including strangulation, assault, and dangerous driving. The appeal focuses on the starting point and overall proportionality of the sentence. The primary legal issues are whether the starting point for the violence-related offences was correctly set at four years and nine months, and whether the sentence, after applying mitigating factors, was excessively high. The Court examined the severity of the violence, the duration and nature of the offending, and compared it with similar cases to determine if the starting point and overall sentence were appropriate.

The Court found that the violence-related offences, which included two instances of strangulation, were extremely serious, warranting a starting point of four years and nine months. While the appellant's counsel argued for a lower starting point, the Court found the Judge's assessment to be justified based on the gravity and protracted nature of the violence. Additionally, the Court held that the overall starting point of six years and ten months, which included uplifts for other offences such as dangerous driving and breach of bail, was not disproportionately high given the scale and seriousness of the offending. The significant reductions for mitigating factors, including guilty pleas and remorse, brought the final sentence to three years and nine months, which the Court deemed to be within an acceptable range. The appeal was dismissed.

Orders