HOLTHAM v NEW ZEALAND POLICE [2018] NZHC 2160

HOLTHAM v NEW ZEALAND POLICE [2018] NZHC 2160 [22 August 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2018-485-000047[2018] NZHC 2160BETWEEN EDWIN EEJAE HOLTHAMAppellantAND NEW ZEALAND POLICERespondentHearing: 22 August 2018Counsel: L C Brown for AppellantT G Bain for RespondentJudgment: 22 August 2018JUDGMENT OF COLLINS JIntroduction[1] The issue raised by Mr Holtham's appeal is whether the end sentence offour years' imprisonment imposed upon him in relation to 20 charges, includingburglary, was manifestly excessive.Background[2] Mr Holtham's offending may be summarised in the following way:(1) The burglary charge stems from events on 28 July 2017, whenMr Holtham entered the premises of Pak'nSave in Petone. He hadpreviously worked at that supermarket. He took a set of store keys andgained entry to the butchery section of the supermarket. He thenunlocked doors to the rear entry of the butchery which enabled him andan associate to later re-enter the premises and take meat productsvalued at $8,000.1(2) On 29 July 2017, Mr Holtham was stopped whilst driving a Holdenmotor vehicle. Checks by the police revealed that his licence had beensuspended.2(3) On 7 August 2017, Mr Holtham stole a bank credit card from a vehicleparked at a service station in Miramar.3(4) Later on 7 August 2017, Mr Holtham gave the credit card to anassociate. They made three purchases of $79.80, $57.10 and $54.50using that credit card. These incidents resulted in three charges ofdishonestly using a document.4(5) Between 14 September and 16 September 2017, Mr Holthamunlawfully took a Honda motor vehicle valued at $1,600 by tamperingwith the vehicle's ignition. The vehicle was recovered but the vehicle'scontents, valued at $700 were not recovered.5(6) Between 17 September and 18 September 2017, Mr Holtham entered aproperty and unlawfully gained access to a Toyota Corolla. No itemswere taken from that vehicle. Mr Holtham then gained access to thevictim's Subaru motor vehicle, valued at $2,500 and stole it from theproperty. That vehicle has not yet been recovered. This offending gaverise to two charges, namely unlawfully interfering with a motorvehicle6 and unlawfully taking a motor vehicle.71 Crimes Act 1961, s 231(1)(a); maximum penalty 10 years' imprisonment.2 Land Transport Act 1998, s 32(1)(c) and (3); maximum penalty three months' imprisonment.3 Crimes Act 1961, s 219 and 223(c); maximum penalty one year's imprisonment.4 Section 228(1)(b); maximum penalty seven years' imprisonment.5 Section 226(1)(a); maximum penalty seven years' imprisonment.6 Section 226(2); maximum penalty two years' imprisonment.7 Section 226(1)(a); maximum penalty seven years' imprisonment.(7) On 18 September 2017, Mr Holtham unlawfully interfered with amotor vehicle by attempting to open the door of a Jeep. When he wasconfronted by the owner of the vehicle, Mr Holtham drove off atspeed.8(8) Between 19 September and 6 October 2017, Mr Holtham committedseven acts of theft.9 The offending involved Mr Holtham:(i) obtaining fuel from a service station in Palmerston Northvalued at $61.80 before driving off without making payment;(ii) entering the Bunnings store in Feilding, where Mr Holthamassisted an associate in stealing a deadlock valued at $414.45.(iii) gaining entry to a Ford Ranger vehicle by breaking the glass tothe front passenger door, causing approximately $700 worth ofdamage. He also got into that vehicle and stole a radar detectorvalued at $549;(iv) stealing number plates from a Mitsubishi vehicle, valued at $50;(v) obtaining $95 worth of petrol from a service station inUpper Hutt without paying for that petrol; and(vi) on two occasions stealing the registration plates from twoSubaru cars. The value of the registration plates was $50.(9) On 7 October 2017, Mr Holtham was found driving a Subaru motorvehicle which had been stolen from an address five days earlier. Thepolice endeavoured to stop Mr Holtham by giving chase and activatingthe siren of their patrol car. Mr Holtham turned his vehicle lights offand kept driving at high speed to evade police. He overtook on a double8 Crimes Act 1961, s 226(2); maximum penalty two years' imprisonment.9 Sections 219 and 223(d); maximum penalty three months' imprisonment.yellow line into on-coming traffic. He reached speeds of up to 125km/h in an 80 km/h zone. The vehicle he was driving was eventuallybrought to a stop by road spikes. As a consequence, Mr Holtham wascharged with driving in a dangerous manner10 and failing to stop.11(10) Mr Holtham was also charged with breaching his release conditions forfailing to report to a probation officer on 9 August 2017.12District Court decision[3] On 7 March 2018, Mr Holtham was sentenced by Judge Kelly in the DistrictCourt at Porirua.13 Mr Holtham was sentenced to three years' imprisonment on thelead charge of burglary and one year imprisonment, to be served cumulatively, for thecharge of unlawfully taking a motor vehicle. All other sentences of imprisonmentwere imposed concurrently. Mr Holtham was also disqualified from driving for a totalof nine months in relation to the driving offences.[4] In reaching her decision, Judge Kelly adopted a starting point of three years'imprisonment for the burglary charge. She then imposed an uplift of 18 months forthe remaining imprisonable offences. Judge Kelly then applied a further uplift of12 months' imprisonment to recognise Mr Holtham's previous criminal history.Judge Kelly then reduced the sentence by six months to reflect Mr Holtham's remorseand his efforts at restorative justice. A further discount of 12 months was afforded toMr Holtham in recognition of his guilty pleas. This resulted in the end sentence offour years' imprisonment.Mr Holtham's circumstances[5] Mr Holtham is now 30 years old. Prior to the convictions that are the subjectof this appeal, he had acquired 34 criminal convictions. Most relevantly he wassentenced in April 2013 to three years and six months' imprisonment in relation to five10 Land Transport Act 1998, s 35(1)(b); maximum penalty three months' imprisonment.11 Section 52A(1)(a)(i) and (2); maximum penalty a fine not exceeding $10,000.12 Parole Act 2002, s 71(1); maximum penalty one year's imprisonment.13 Police v Holtham [2018] NZDC 4417.burglaries. He also received cumulative sentences of one year's imprisonment at thattime for unlawfully taking a motor vehicle and for arson.[6] At the time of the offending covered by this appeal, Mr Holtham was subjectto parole conditions. He was recalled to prison on 9 October 2017. The end date forhis previous sentences of imprisonment is 11 February 2019.[7] Mr Holtham is in a relationship and has four children from three previousrelationships. He advised the pre-sentence report writer that he was introduced tomethamphetamine following his release on parole and that he quickly became addictedto that drug.[8] Mr Holtham was admitted into a Release to Work programme in November2015. He was provided with employment at Pak'nSave Petone, where he was highlyregarded by his employer, the owner of the premises burgled by Mr Holtham on28 July 2017.Principles governing the appeal[9] Mr Holtham's appeal is governed by s 250 of the Criminal Procedure Act 2011.Thus, I must allow his appeal if I am satisfied that:(1) for any reason, there is an error in the sentence imposed; and(2) a different sentence should be imposed.[10] The Court of Appeal has explained that the concept of "manifestly excessive"is still applicable to sentence appeals.14 The Court of Appeal has also explained:15The discretion to vary [a] sentence [on appeal] is not unfettered; this Courtdoes not embark upon the sentencing afresh nor substitute its own opinion forthat of the original sentencer. There must be an error vitiating the exercise ofthe original sentencing discretion. In short, this Court must proceed on an"error principle".14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.15 At [29], citing R v Shipton [2007] 2 NZLR 218 (CA) at [138].Grounds of appeal[11] Five grounds of appeal are advanced:(1) that the sentence starting point of three years in relation to the burglarycharge was too high;(2) the uplift of 18 months for additional offending was too high;(3) the uplift of 12 months for Mr Holtham's previous criminal history wastoo high;(4) Judge Kelly erred in not giving Mr Holtham full credit for his earlyguilty pleas; and(5) Judge Kelly erred by not giving adequate recognition to the attemptsmade by Mr Holtham in relation to rehabilitation.Analysis[12] Ms Brown, counsel for Mr Holtham challenges individual components of thesentence imposed by Judge Kelly. Ultimately, however, the issue is whether or not theend sentence imposed by the Judge was manifestly excessive.16First ground of appeal[13] Ms Brown challenged the three years starting point for the burglary charge.She submitted that a starting point of 18 months was appropriate in the circumstancesof this case. She gained some support for this submission from Police v O'Neill, inwhich the District Court adopted a starting point of 18 months' imprisonment foroffending similar to that of Mr Holtham.1716 Ripia v R [2011] NZCA 101 at [15].17 Police v O'Neill [2016] NZDC 10659.[14] Fixing the starting point for a burglary sentence involves an evaluation of theculpability of the offender.18 In the present case there are three factors thatdemonstrated a high level of culpability on the part of Mr Holtham. Those factors are:(1) The significant breach of trust involved in the offending. Mr Holthamhad been given a generous opportunity when he was admitted into theRelease to Work programme and provided with employment atPak'nSave in Petone. Through that work he acquired knowledge aboutthe layout and security arrangements in the supermarket. He then usedthat knowledge to commit the burglary on 28 July 2017.(2) The value of the goods stolen in the burglary was significant.(3) There was premeditation involved in the offending. The SentencingAct 2002 recognises this as an aggravating factor when determining asentence.19[15] The starting point of three years was, however, very high compared to othercases I have examined20 in which the starting points ranged from 18 to 21 months'imprisonment.[16] While the amounts involved in the other cases were less than the amountsstolen by Mr Holtham, I am satisfied that the appropriate starting point should nothave been more than 24 months in this case.Second ground of appeal[17] Ms Brown submits that the uplift of 18 months' imprisonment forMr Holtham's additional imprisonable offending was excessive and did not properlyreflect the seriousness of that offending.18 R v Nguyen CA110/01, 2 July 2001.19 Sentencing Act 2002, s 9(1)(i).20 McCormick v Police [2012] NZHC 309; R v Stevens [2009] NZCA 190; and Police v O'Neill,above n 17.[18] In my assessment, an uplift was required to reflect Mr Holtham's otherimprisonable offending. The scale of that uplift needed to reflect the magnitude andseriousness of his other offending. By my calculation there were 18 otherimprisonable charges for which Mr Holtham was sentenced. His offending can becorrectly described as "flagrant and prolific". The offending was undertaken by MrHoltham without regard to the impact of his offending on his victims.[19] While the uplift of 18 months was on the high side, I do not think that by itselfwas manifestly excessive.Third ground of appeal[20] Ms Brown submitted that the uplift of a further 12 months' imprisonment toreflect Mr Holtham's previous convictions was also excessive.[21] The number and seriousness of previous convictions is an aggravating factorthat can properly be taken into account when sentencing a defendant.21 Care, however,needs to be taken to ensure a defendant is not punished more than once for his or herprevious offending.[22] In the present case, the uplift of 12 months' imprisonment for Mr Holtham'sprevious convictions reflected a 22 per cent uplift on the provisional sentence of fourand a half years reached by Judge Kelly. That, by any standard, was a very high uplift.It was particularly punitive when regard is had to the fact that Mr Holtham will nowserve the full term of the prison sentences imposed in 2013.[23] Although Mr Holtham has a disconcerting number of convictions, thoseconvictions were not sufficiently compelling to justify the 12 months uplift adoptedby Judge Kelly. In my assessment, an uplift of six months' imprisonment was morethan adequate to reflect the objective of s 9(1)(j) of the Sentencing Act.21 Sentencing Act 2002, s 9(1)(j).Fourth ground of appeal[24] Mr Holtham pleaded guilty to 19 charges within six weeks of his firstappearance and he indicated a guilty plea to the 20th charge prior to the case reviewhearing. The guilty plea was not formally entered until the day of sentencing becausethat was more practical.[25] A discount of 12 months was provided by Judge Kelly to take account ofMr Holtham's guilty pleas. This equated to a 20 per cent reduction.[26] While a more generous discount could have been provided, the discountactually given was not inconsistent with the guidance provided by the Supreme Courtin Hessell v R.22Fifth ground of appeal[27] Ms Brown submits that the discount of six months provided to Mr Holtham toreflect his remorse and his efforts at restorative justice were inadequate. That is not asubmission that gains traction. Judge Kelly was fully aware of Mr Holtham's personalcircumstances, including his efforts to restorative justice. The discount of six months'imprisonment to reflect these factors was adequate in the circumstances of this case.Summary[28] In my assessment, the appropriate end sentence in this case was three years andtwo months' imprisonment. I reach that sentence by setting a starting point of twoyears and six months' imprisonment for the burglary charge. I then adopt JudgeKelly's uplift of 18 months' imprisonment to reflect Mr Holtham's other imprisonableoffending. To that I add a further six months uplift to reflect Mr Holtham's previousoffending. I then provide a six months discount to reflect his remorse and efforts atrehabilitation. From there I deduct 20 per cent to reflect his guilty plea.[29] In these circumstances, I am satisfied that the sentence imposed was"manifestly excessive". Accordingly, I allow Mr Holtham's appeal and quash the22 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.sentence of three years' imprisonment for the burglary charge and substitute thatsentence with one of two years and two months' imprisonment.[30] All other sentences imposed by Judge Kelly are upheld, including the 12-month cumulative sentence of imprisonment for unlawfully taking a motor vehicle.[31] This produces a total end sentence of three years and two months'imprisonment._________________D B Collins JSolicitors:Public Defence Service, Wellington for AppellantCrown Solicitor, Wellington