HUGENHOLTZ v POLICE [2020] NZHC 659

HUGENHOLTZ v POLICE [2020] NZHC 659 [30 March 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-537[2020] NZHC 659BETWEEN ZAINE JAMES HUGENHOLTZAppellantAND NEW ZEALAND POLICERespondentHearing: 16 March 2020Appearances: J Rempe for AppellantE L Thomas for RespondentJudgment: 30 March 2020JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 30 March 2020 at 3.30 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors: Meredith Connell, Crown Solicitor, AucklandPublic Defence Service, Auckland[1] The appellant, Mr Hugenholtz, appeals against a sentence of three years, ninemonths' imprisonment imposed by Judge Rollo on 18 November 2019.1[2] Mr Hugenholtz contends the sentence was manifestly excessive because theJudge erred in identifying a starting point of four years and nine months' imprisonmentfor what I shall refer to as the "violence offending", and in failing to reduce theultimate 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 afamily relationship (representative).5Driving(b) 20 September 2018: driving whilst disqualified (second) 6 and carelessuse of a motor vehicle.7(c) 26 October 2018: dangerous driving;8 failing to stop;9 and drivingwhilst disqualified (third or subsequent).101 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 victimare 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 $4,500and 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 disqualificationMiscellaneous(d) 13 October 2018: unlawfully taking a motor vehicle;1124 October 2018: theft under $500 (being $90 worth of petrol);127 December 2018: breaching release conditions;13 and31 March 2019: possession of utensils for smokingmethamphetamine.14Sentence[4] The Judge adopted a starting point of three years, nine months' imprisonmentfor 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 therepresentative charge of assault on a person in a family relationship. This brought thestarting point for the violence offending to four years, nine months' imprisonment.[5] The Judge then applied the following uplifts, largely in accordance withMs Rempe's submissions to him:(a) nine months' for the unlawful taking of a motor vehicle in [3](d) above;(b) four months' for the driving whilst disqualified (second) in [3](b)above;(c) four months' for the driving offences in [3](c) above;(d) two months' for the balance of the offending in [3](d) above; and11 Crimes Act, s 226(1). The maximum penalty is seven years' imprisonment.12 Crimes Act, ss 219 and 223(d). The maximum penalty is three months' imprisonment.13 Sentencing Act 2002, s 96A. The maximum penalty is one-year's imprisonment and/or a fine of$2,000.14 Misuse of Drugs Act 1975, s 13(1)(a). The maximum penalty is one-year's imprisonment and/ora fine of $500.(e) six months' for Mr Hugenholtz's prior convictions and for offendingwhilst on bail.[6] These uplifts brought the Judge to six years, 10 months' imprisonment.[7] The Judge reduced the sentence by 45 percent on account of mitigating factorspersonal to Mr Hugenholtz, comprising five percent for rehabilitative efforts;10 percent for remorse, regret and Mr Hugenholtz's offer to attend a restorative justiceconference; 10 percent for personal circumstances and 20 percent for guilty pleas.These discounts brought the end sentence to three years, nine months' imprisonment.[8] Ms Rempe takes no issue with the uplifts or the percentage reductions in [5]and [6] above.Facts[9] The summaries of fact for the offending are as follows:INTRODUCTIONThe defendant, Zaine James HUGENHOLTZ has been living at his partner'shome address ... for several months. His partner ... is the victim in this matter.This address belongs to the victim's mother who also resides at the addresswith a young teenage sibling of the victim.The defendant and victim occupy one of the three bedrooms at the address.The defendant and victim have been in an on and off relationship for about4 months which was recently ended by the victim at approximately 11:00 amon Thursday the 28th of March 2019.There have been two previous recorded family violence callouts between thedefendant and victim during their time together....THEFT – CRN: 19004003884About 5:15 am on [24 October 2018], the defendant Zaine HUGENHOLTZ[drove onto the forecourt of a service station].The defendant ... filled the vehicle with $90 worth of petrol.He has subsequently driven away without paying for the petrol....ASSAULT ON PERSON IN A SPECIAL RELATIONSHIP – CRN:19004003878(Representative Charge)At approximately 11:30 am on [28 March 2019], the defendant and victimwere inside their bedroom when a verbal altercation ensued resulting in thedefendant slapping the victim in the face using the back of his left hand.Shortly afterwards he left the address for several hours.IMPEDES BREATHING – CRN: 19004003879Later this same day about 4:30 pm, the defendant returned home in an agitatedstate and began a prolonged verbal argument with the victim inside theirbedroom which went on for hours to about 10.55 pm. Between these timesthe victim has been subjected to several violent acts inflicted by the defendant.The victim was lying flat on her back towards the end of their double bedwhen the defendant grabbed one of his own t-shirt's, stood over her andshoved some of it in her mouth as he held both ends of the t-shirt applyingdownward pressure. The victim's nose had been blocked from continuouscrying throughout the early evening and [she] could not breathe as a result ofthe defendant's actions.IMPEDES BREATHING – CRN: 19004003881The defendant continued hurling verbal abuse at the victim and while she wasstanding next to the bed, he grabbed her again with both his hands around herthroat and squeezed really hard for several seconds restricting the victim'snormal breathing and causing her to blackout and fall to the ground.As the victim slowly came around, the defendant picked her up and placed heron the bed on her side, tipping water onto her face to wake her up.On several occasions the victim desperately needed to go to the bathroom butthe defendant told her that she could not leave fearing that she would contactthe Police.THREATENING TO KILL – CRN: 19004003882(Representative Charge)The defendant on two separate occasions held a red handled box cutter knifeto the victim's throat and threatened to kill her if she said anything out loud asthe victim's mother was inside the house.[ASSAULT WITH A WEAPON] – CRN: 19004003883A struggle ensued while the defendant was holding the box cutter knife and inthe process, cut the victim on her right tricep area.The defendant then turned the box cutter knife on himself towards his throatarea and threated to cut his jugular vein before moving the knife to his wristarea, again threatening to hurt himself.ASSAULT ON A PERSON IN A SPECIAL RELATIONSHIP (RepresentativeCharge as per CRN: 19004003878)Throughout the evening the defendant punched the victim about thirty timesaround her head and face area while his fist was wrapped inside a t-shirt inorder to leave less marks around the victim's head and face. He has also pulledat the victim's hair several times uprooting hair from her skull.On two separate occasions during the evening the defendant noticed blood onthe victim's upper clothing which were a result of the dripping blood from herface and has forced the victim to change her top clothing both times.The defendant then attempted to use a bandage from a nearby first aid kit towrap around his own neck and was distracted ... which provided anopportunity for the victim to run out of the room ...POSSESSION OF UTENSILS FOR METHAMPHETAMINE – CRN:19004003885(Representative)... on Sunday, 31st March 2019 the defendant was located by Police ... andtaken back to Auckland Central Police Station....As a result of [his] bags being searched ... various drug paraphernalia werelocated namely; a glass methamphetamine pipe, 3 x modified straws and amouth piece for a bong.INJURIES TO VICTIMAs a result of the chain of violent events throughout the Thursday evening, thevictim received a swollen cut bottom lip, minor superficial cut to her righttricep area, swelling to the back of her head and dizziness....[UNLAWUFL TAKING/USE OF A MOTOR VEHICLE]... on 13 October 2018 the victim's motor vehicle ... was stolen by thedefendant HUGENHOLTZ.The defendant started the vehicle using a key that he had obtained dishonestlyat an earlier date....[DRIVING OFFENCES — 20 SEPTEMBER 2018]...On [20 September 2018], the Defendant was the driver of a Honda MotorVehicle ... on West Lynn Road, Titirangi.West Lynn Rd is a residential area, governed by a 50kph speed limit. For themajority of the street there is no centre line, the road is crowded with parkedcars and the street is tight.At the time of the crash, the road was dry and the sun was shining.The Defendant crashed the Honda into two vehicles on West Lynn Road,Titirangi.The Defendant crashed into a Suzuki Motor Vehicle ... travelling in theopposite direction.After the Defendant crashed into the Suzuki, he veered off onto the other sideof the street and crashed into a [stationary] Nissan Motor Vehicle ...[DRIVING OFFENCES — 26 OCTOBER 2018][At 11.56 pm on 26 October 2018], the Defendant was the driver of a BlackMazda ... on Pomaria Road in Henderson, Auckland.Pomaria Road is a residential 50kmph area, the weather at the time was fineand dry and traffic was light.Police activated their red and blue lights and stopped the Defendant.Enquires revealed the Defendant to be disqualified from driving and Policerequested the Defendant to remain and hand over the keys.The Defendant failed to remain and accelerated away from the traffic stop atspeed and turned off his head lights.The Defendant continued to drive at speed through and around traffic andaway from Police. He was ... eventually stopped ... in Henderson where hewas arrested....Violence offending[10] The Judge described Mr Hugenholtz's offending as "incredibly serious,dangerous acts, by someone with a history of violence".15 I agree. Loss ofconsciousness, or bladder control as occurred ˜n T v Police, to which I refer below,indicates the strangulation was serious.16 Similarly, to hold a box cutter — effectivelya knife — to someone's throat, and to deliver 30 odd punches to the head and body isequally dangerous behaviour. The Judge also referred to Mr Hugenholtz's previousconvictions for violence, which he considered again correctly revealed "an ongoingpattern of very serious violence against women."17[11] It was common ground before the Judge that the two charges of strangulationor of impeding breathing were the lead offences. This relatively recently enactedoffence carries a maximum term of imprisonment of seven years. It also appears tohave been common ground that for the second, more serious strangulation, the Judge15 Police v Hugenholtz, above n 1, at [11].16 T v Police [2019] NZHC 3375 at [51].17 Police v Hugenholtz, above n 1, at [10].should adopt the same starting point as in Police v Ackland, upheld in Ackland vPolice, of three years, three months' imprisonment.18[12] From there, Ms Rempe submitted to the Judge that a one month uplift for theother, first strangulation, would be a sufficient starting point for the two offences, sono more than three years, four months' in total, at least for that offending.[13] It is not entirely clear whether the Judge accepted that submission, butregardless, he treated all the offending bar the assault comprising the punches, as partof a single incident, adopting a starting point of 45 months', or three years ninemonths', imprisonment.19 As to the assault, the Judge considered the duration, numberof blows, vulnerability of the victim and breach of trust made it an extremely seriousincident, warranting an uplift of 12 months on its own, "deserving a starting point ofhalf" the maximum possible of two years' imprisonment.20Starting point[14] On appeal, Ms Rempe submitted the starting point for all the violenceoffending ought to have been no more than four years' imprisonment, being ninemonths' less than the Judge's starting point for that offending. In support of thissubmission, Ms Rempe referred me to Ackland v Police, T v Police, R v Singh andLatu v Police.21[15] The defendant in Ackland strangled his wife of many years, when their childrenwere present. The couple had been arguing, he "slapped her across the face four orfive times", and then strangled her to a point she lost consciousness and her body wastingling. The couple continued to argue after the victim regained consciousness.Mr Ackland grabbed a neighbour who tried to intervene by the throat and held a knifeto his neck. The Judge adopted a starting point of three years' three months' on thestrangulation, added three months for Mr Ackland's assault on his wife (assault on a18 Police v Ackland [2019] NZDC 4208; and Ackland v Police [2019] NZHC 312, [2019] NZAR1112.19 Police v Hugenholtz, above n 1, at [18].20 At [18].21 Ackland v Police, above n 18; T v Police, above n 16; R v Singh [2015] NZHC 1641; and Latu vPolice [2017] NZHC 363.person in a special relationship) and six months for the assault with a weapon to theneighbour. Cooke J upheld the Judge on appeal.[16] In T, T and the victim had been in a relationship for nine years, had two childrenand, after various violent acts for which he was charged separately, T "grabbed [thevictim] around the neck in a headlock and hauled her onto the bed ... [the victim]eventually felt her lips tingle and lost consciousness". The victim also lost bladdercontrol. Doogue J upheld the District Court Judge's three year starting point for thestrangulation, but described it as "lenient".[17] In Singh, the defendant was for sentence on injuring with intent to causegrievous bodily harm, which has a maximum sentence of 10 years' imprisonment,threatening to kill and assault with a weapon. Suspicious his wife and their flatmatemight be romantically interested in each other, Mr Singh kicked his wife in thestomach, struck her to the head and body with a cricket bat, strangled her to the pointshe lost consciousness, threatened to kill her, and likewise the flatmate. Davidson Jadopted a starting point of four years' on the injuring charge, uplifted by six monthsfor the other offending.[18] In Latu, the defendant was for sentence on a raft of offending including threecharges of male assaults female, one of assault with intent to injure, two of injuringwith intent to injure, and two of threatening to kill. The injuring with intent to injure,which carries a maximum sentence of five years' imprisonment, comprised twostrangulations. Mr Latu's victim, his partner, lost consciousness on both occasions.The District Court Judge's starting point of four years for that offending was notchallenged in the High Court.[19] Plainly, Singh and Latu have their limitations because the defendants were notcharged with strangulation, it becoming an offence after the offending in those cases.I take Ms Rempe's point though, that the most serious charge against the defendant inSingh carried a higher maximum terms of imprisonment.[20] Ms Rempe acknowledged the second strangulation in this case, and the assaultcomprising the punches, made the case more serious than Ackland and T, hence hersubmission that an overall starting point of four years' imprisonment would beappropriate.[21] Despite Ms Rempe's excellent submissions on behalf of Mr Hugenholtz, I amnot persuaded the Judge's starting point was too high given the facts of the offending.Quite aside from the points the Judge made as to the danger Mr Hugenholtz's actionspresented, his offending was protracted, and occurred behind closed doors and in thevictim's own family home. It constituted a gross breach of trust, and of the hospitalityher family were extending to him. If I were required to break it down, I would havetaken the three year, three month starting point in Ackland, and uplifted by six monthsfor the second strangulation, by at least six months for the assault comprising thepunches, and that would still leave the representative charge of threat to kill and theassault with a weapon. I have also considered other appeals to the High Court againstsentence for strangulation.22 The starting points have ranged from two years'imprisonment to three years, three months' imprisonment in Ackland. This case wasas serious as Ackland, hence my decision.[22] To conclude, I am satisfied four years, nine months' imprisonment was withinrange.Totality[23] The issue then becomes whether the sentence of six years, 10 months'imprisonment, prior to the discounts referred to, was wholly out of proportion to thegravity of the overall offending, requiring a reduction.23[24] Ms Rempe submitted that a sentence of more than five years would be out ofall proportion and therefore a reduction was required.[25] Crown counsel, Ms Thomas, rejected the prospect of any reduction for totalityreasons, and she also submitted the Judge's reductions for personal mitigating factors22 Houkamau v Police [2019] NZHC 2743; Jenner v Police [2020] NZHC 62; Milne v Police [2020]NZHC 358; and Parker v Police [2020] NZHC 479.23 Sentencing Act, s 85(2).were generous, so that, even if the Judge's overall starting point appeared high, thegenerous discounts given brought it back within range.[26] I am not persuaded the overall starting point was wholly out of proportion.Mr Hugenholtz's offending falls into three categories, committed over a six monthperiod. First, the violence offending, secondly the taking of the motor vehicle, andthirdly the two driving whilst disqualified offences, the failure to remain stopped andthe subsequent dangerous driving. It is inevitable that offending of this scale will leadto what on its face may appear a high combined starting point. I also bear in mind thateight months of the overall starting point derived from Mr Hugenholtz's breach ofrelease conditions, his offending whilst on bail and his prior convictions.[27] I dismiss this appeal accordingly. I thank both counsel for their excellentsubmissions and assure Mr Hugenholtz that Ms Rempe could not have said more onhis behalf than she did.Peters J