HOLTZ v R [2021] NZHC 3158

HOLTZ v R [2021] NZHC 3158 [23 November 2021]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2021-488-000050[2021] NZHC 3158BETWEEN ZION HAMUERA HOLTZAppellantAND THE QUEENRespondentHearing: 18 November 2021Counsel: AM Dooney for AppellantCS Taylor for RespondentJudgment: 23 November 2021JUDGMENT OF DOWNS JThis judgment was delivered by me on Tuesday, 23 November 2021 at 12 pm.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, Whangarei.AM Dooney, Whangarei.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 theexecution of duty. Mr Holtz appeals. An appeal in this context must be allowed if theappeal Court is satisfied there is an error in the sentence and a different one should beimposed.1 Or, in short, if the sentence is manifestly excessive.2Background[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'shome; and then fire the gun at the home. Mr Holtz told his sister where the victimlived. The sister agreed to do as she was asked. Mr Holtz said he would call againthat afternoon.[3] The same day, the victim saw Mr Holtz and another putting toilet paper over aCCTV camera in the prison yard. She told him to remove it. Mr Holtz responded bysaying he would have his friend "smack her over". He became aggressive. The victimwalked away. When the victim returned a little later, Mr Holtz said she would "regretthis". He pointed his fingers in the shape of a gun at the victim and said, "you're goingto fucking regret this bitch".[4] Authorities discovered Mr Holtz's phone call earlier in the day. After someencouragement, Mr Holtz rang his sister and called off the plan to shoot at the victim'shome.[5] Mr Holtz and his sister pleaded guilty to an offence of conspiring to dischargea firearm.3 Mr Holtz also pleaded guilty to threatening grievous bodily harm.41 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 Judgeimposed a minimum period of 50 percent.5Mr Holtz's case[7] Mr Holtz argues the Judge should not have added a year to the conspiracyoffence starting point (of two years' imprisonment) as the threat to commit grievousbodily harm was not a bad example of its kind. On his behalf, Mr Dooney notes thethreat was neither premeditated nor sophisticated. Mr Dooney also contends the Judgeshould have discounted the sentence by 20 percent because of mitigating features in acultural report. The result, says Mr Dooney, should be a sentence of one year andseven months' imprisonment.Analysis[8] The critical question in any sentence appeal is whether the sentence ismanifestly excessive. Relatedly, how the sentence is comprised is not important.So, while the parties analysed the individual components of the starting point, it isbetter to assess this holistically. The best way to do this is by examining similarcases—to the extent they can be found. Some are appreciably less serious, but broadlycomparable.[9] Tenahu Tihema and others attempted to smuggle drugs and cigarettes into aprison. When prison officers intervened, Mr Tihema threatened one that he would"fuck him up" and repeatedly leapt toward him. The officer fell backwards into aditch.[10] A starting point of 12 months' imprisonment was adopted for all offences. Onappeal, the 10-month end sentence was upheld. Thomas J noted the sentence couldhave been higher given Mr Tihema's record. A contention the assault was "technical"was rejected. Thomas J said this characterisation "improperly minimises theoffending".65 R v Holtz [2021] NZDC 21034.6 Tihema v R [2017] NZHC 1018 at [42].[11] Maia Rongonui pushed a prison officer "in the chest with both arms" and thenlunged at her.7 He threatened to "smash" her. Three weeks later, Mr Rongonuitouched another prison officer's bottom. When confronted about the offending, hesaid the officer "led me on".8 Muir J upheld the starting point of nine months'imprisonment and the cumulative imposition of the end sentence of six months'imprisonment on an existing term of three years and nine months.[12] Floyd Boyland pointed a loaded shotgun at his mother and said, "I [am] goingto shoot someone, or I could shoot you". Simon France J acknowledged while therewas "room for debate about whether [that] incident would sustain a three-yearstarting point",9 other unrelated offending did, once everything was consideredtogether. The Judge said a starting point "of at least two years' imprisonment wasplainly within range" in relation to the threatening to kill incident.10 As will beapparent, that involved a loaded firearm.[13] Mark Sheridan "went berserk" at a Police station.11 He attempted self-harmwith a syringe, attempted to attack Police personnel and threatened to kill at least onePolice officer. On appeal, a two-year, eight-month sentence for the offence ofthreatening grievous bodily harm was quashed and replaced with a sentence of twoyears and two months' imprisonment.[14] Bob Chiyabi threatened to kill his neighbour's children (aged 14 and 6). In anunrelated arrest, Mr Chiyabi attempted to head butt a police officer. The District Courtimposed a sentence of two and a half years' imprisonment on the threatening to killcharge. The Court added three months for the assault. Mr Chiyabi was on parolewhen he made the threat and the assault was committed while he was on bail for thethreat. Noting that there was no tariff for the offence of threatening to kill, theCourt of Appeal said it had "no doubt the totality of the offending justified a startingpoint of around three years' imprisonment".127 Rongonui v Police [2017] NZHC 688 at [3].8 At [4].9 Boyland v Police [2015] NZHC 2463 at [9].10 At [11].11 Sheridan v Police HC Dunedin CRI-2010-412-000039, 25 November 2010 at [5].12 R v Chiyabi [2008] NZCA 10 at [26].[15] Mr Holtz's offending has aggravating factors. The conspiracy wascold-blooded; the target a prison officer. (The offence was not one of mere words:Mr Holtz arranged for his sister to provide another a firearm; have the other go to thevictim's home; and there discharge the weapon.) The threat of grievous bodily harmpresents as more impulsive; but was again made against the same prison officer, actingin execution of duty. The combination is serious. Overall, the gravity of the offendingmirrors Chiyabi. That case involved a three-year starting point, which, as observed,was upheld by the Court of Appeal. So, no error arises here.[16] The Judge deducted 15 percent for Mr Holtz's guilty pleas. This isunchallenged. The Judge also deducted 10 percent for personal mitigatingcircumstances. This is challenged. Mr Dooney says the deduction should have been20 percent.[17] At first instance and on appeal, Mr Dooney relied on a cultural report dated12 November 2019, that is, a cultural report prepared for unrelated, antecedentoffending. Mr Dooney says its "historical data" remains relevant, for, Mr Holtz'sstepfather was a member of the Black Power gang and Mr Holtz was "pretty muchborn into it". Mr Dooney says this and the allied dimension of deprivation warranteda 20 percent discount.[18] Like the Judge, I accept the cultural report has some relevance insofar as itoutlines Mr Holtz's background. Again like the Judge, I am unpersuaded furtherdiscount was warranted. Importantly, Mr Holtz's stepfather tried to manage gangbusiness away from the home and was not violent to either Mr Holtz or his mother. A10 percent discount sufficiently recognised the likely linkage between Mr Holtz'supbringing and the offending, particularly Mr Holtz's apparent difficulty with prisonofficials.[19] As observed, the critical question in any sentence appeal is whether thesentence is manifestly excessive. It is not given aggravating factors, particularly thatthe victim was a prison officer, acting in the course of duty.1313 Sentencing Act 2002, s 9(1)(fa).Result[20] The appeal is dismissed...Downs J