Holtz v R [2022] NZHC 245 (22 February 2022)

Last Updated: 16 March 2022

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 swing the piece of steel at the victim again. This time the steel grazed the victim’s arms. Mr Holtz then swung the piece of steel at the victim again, this time hitting him on the left leg. By this time, another work colleague saw what was happening and came to the victim’s assistance.

• [5] Mr Holtz did not speak during the entire attack. The victim had done nothing to provoke the attack.

• [6] As a result of the attack, the victim suffered an eight centimetre laceration to his left ear which required plastic surgery to re-attach it completely. He also received a cut above his left eye and superficial grazes and abrasions to his face, neck, arm and left leg. As a result of the second strike, the victim suffered a small cut on his right arm and as a result of the third strike he suffered a 1.5 centimetre cut to his left leg below the knee.

• [7] At the time of the offending, Mr Holtz was on bail for two charges of injuring with intent to injure or reckless disregard and one charge of male assaults female. He was subsequently convicted of those offences.

District Court decision

• [8] In sentencing Mr Holtz, the Judge took as a starting point six years six months’ imprisonment, placing the offending within the lower third of band two of R v Taueki.³

• [9] The Judge then uplifted that by three months to take account of Mr Holtz’ previous conviction history, tempering the uplift because of the consequences of the offending as a second-strike offence.

• [10] The Judge then accepted counsel’s agreed reduction of 25 per cent for the guilty plea and allowed a further five per cent for rehabilitation and remorse, tempering that because of her concern as to whether or not Mr Holtz actually had any insight in relation to his violence.

³ R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.

• [11] The combined reduction of 30 per cent led to the end sentence of four years nine months’ imprisonment.

The proposed appeal

• [12] Mr Hudson appeared for Mr Holtz at sentencing. Mr Hudson has filed a memorandum in which he says that after sentence was imposed, Mr Holtz disclosed to him factors personal to his upbringing that were causally linked to his offending. Mr Hudson then obtained the s 27 report. At the hearing Mr Hudson clarified that he had only had the discussion with Mr Holtz last year, when the issue of repeal of the three strikes legislation was being discussed.

• [13] The s 27 report was completed in January 2022. It sets out Mr Holtz’s background in some detail. Mr Hudson submitted Mr Holtz’ background provided a causative link to the offending. He argues a further reduction of 10 per cent was appropriate to reflect the need for the Court to consider the least restrictive sentence and to take into account the link Mr Holtz’ personal and cultural background had to his offending. On Mr Hudson’s submission, the further reduction of 10 per cent would lead to an end sentence of around four years one month’s imprisonment.

The Crown’s position

• [14] The Crown opposes leave being granted to bring the appeal out of time and to file fresh evidence. The Crown submits the delay is significant and not adequately explained. The s 27 report could have been obtained and presented to the Court with reasonable diligence and, in any event, the proposed appeal lacks merit.

• [15] Mr Howard submitted that, even if the Court was to grant leave to bring the appeal out of time, the appeal should be dismissed as, even taking into account the s 27 report, the end sentence was not manifestly excessive.

The application for an extension of time

• [16] Section 248(2) of the Criminal Procedure Act 2011 required the appeal to be filed by 10 June 2019. The application for leave and appeal were filed almost two and a half years late.
• [17] The Court has a discretion to extend the time allowed for filing an appeal.⁴ However, the discretion to grant an extension of time to file a notice of appeal is not unfettered. The touchstone is the interests of justice in the particular case. The discretion must be exercised in accordance with the policy underlying the legislative provisions, which include the feature that the reason for the time limit is the interest of society in the final determination of litigation. That carries through as a powerful consideration in determining whether leave should be granted to appeal out of time. The overall interests of justice in a particular case may call for balancing the wider interests of society in the finality of decisions against the interests of the individual applicant.⁵

• [18] As the Court of Appeal confirmed in R v Slavich,⁶ such applications reduce to two heads. Why was the appeal filed late? What, if any, merit does the appeal have?

• [19] There is no adequate explanation for the long delay in this case. No affidavit (even an unsigned one) has been provided by the appellant. Counsel’s memorandum simply says:

After sentence was imposed the appellant disclosed to counsel factors personal to his upbringing that are causally linked to his offending.

• [20] It now seems that disclosure was shortly before the appeal was lodged on 4 November 2021. The delay in Mr Holtz either raising the point is extensive, and is not satisfactorily explained.

• [21] The merits of the appeal are related to the application to adduce the evidence of the s 27 report.

The application to adduce further evidence

• [22] Section 335 of the Criminal Procedure Act empowers the Court to receive and hear further evidence on appeal. The principles are that the evidence must be fresh,

⁴ Criminal Procedure Act 2011, s 248(4)(a).

⁵ R v Knight [1998] 1 NZLR 583 (CA) at 587; R v Lee [2006] NZCA 60; [2006] 3 NZLR 42 at [102]–[103].

⁶ R v Slavich [2008] NZCA 116; Mikus v R [2011] NZCA 298.

credible and cogent. In Mark v R,⁷ the Court of Appeal confirmed that the established principles apply to an appeal against sentence.

• [23] The s 27 report is credible. It is written by a person with appropriate qualifications and background. The next issue is whether or not the report could have been presented to the sentencing court with reasonable diligence. Clearly in this case, it could have been.

• [24] As the evidence in the s 27 report is credible, but not fresh, this Court must assess its strength and potential impact on the sentence. If this 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.

• [25] Although not directly expressed in those terms, in Aramoana v R,⁸ the Court granted leave for a s 27 report to be adduced as evidence in the appeal despite the fact the appeal was out of time. However, in that case the appeal was only approximately two months out of time. Also, in granting leave for the report under s 27 to be adduced as evidence in the appeal, the Court was influenced by the particular procedural complexities of that case and, importantly, the Crown consented.⁹

• [26] Mr Hudson also referred to the case of Emery v R.¹⁰ In that case, again it was common ground, and the Crown accepted, that Mr Emery should be re-sentenced having regard to the s 27 report.

• [27] In both cases relied on by the appellant, Aramoana and Emery, there were particular circumstances which supported the admission of the s 27 report. However, the practice of adducing such reports for first time and for the purpose of appeal is not to be encouraged. In Carroll v R,¹¹ the Court of Appeal noted that, while the Crown did not oppose admission of the s 27 report on appeal, “such reports should not be

⁷ Mark v R [2019] NZCA 121 at [16].

⁸ Aramoana v R [2021] NZCA 558.

⁹ Aramoana v R [2021] NZCA 241 (leave judgment).

¹⁰ Emery v R [2021] NZCA 158.

¹¹ Carroll v R [2019] NZCA 172.

produced for the first time on appeal”.¹² In Laipato v R,¹³ the Court declined an application to adduce further evidence, namely a s 27 report. The report would not have affected the final sentence. Each case will, of course, depend on its particular circumstances.

The merits of the proposed appeal

• [28] Mr Hudson submitted that the s 27 report described in a high level of detail the systematic deprivation and social disadvantage Mr Holtz had suffered during his formative years. He had been exposed to familial violence from a young age, ultimately resulting in his placement with other family members and the intervention of then Child, Youth and Family. Mr Holtz had also been exposed to cannabis and methamphetamine from an early age and became a daily methamphetamine user in his early teens. It seems that leading up to his most recent offending, he was smoking large amounts of methamphetamine. Mr Hudson submitted the s 27 report gave some insight into how Mr Holtz’ upbringing and background had impacted upon his decision-making ability and diminished his moral culpability in this case. Mr Hudson also noted that it appeared Mr Holtz was now embarking on a drug and alcohol course within the prison.

• [29] In response, the Crown submit that, given the entirely unprovoked and gratuitous nature of the attack, it is difficult to establish a clear nexus between Mr Holtz’ background and his offending. The offending was not triggered by financial pressure, gang associations or a poor response to domestic conflict. It occurred in a work place without any clear motive, other than to inflict violence and harm on the work mate. The offending may well have been influenced by Mr Holtz’ addiction to methamphetamine but offending under the influence of alcohol or a drug does not of itself reduce culpability.

• [30] Section 250 of the Criminal Procedure Act confirms this Court must allow an appeal if satisfied that there is an error in the sentence imposed and a different sentence should be imposed. In Tutakangahau v R,¹⁴ the Court of Appeal confirmed that,

¹² At [8].

¹³ Laipato v R [2021] NZCA 562.

¹⁴ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

although not referred to in s 250, the concept of whether a sentence is manifestly excessive:

... [still] provides a helpful means of examining the significance of the error to decide whether a different sentence should be imposed.

• [31] The Court of Appeal also confirmed that the focus is on whether the end sentence was within range not the process by which the sentence was reached.

• [32] Even having regard to the matters referred to in the s 27 report, in this case an overall allowance for Mr Holtz’ personal circumstances could have been no more than 10 per cent in total. Judge Clark in the District Court had somewhat generously allowed a reduction of five per cent for remorse and rehabilitation efforts. At the time, there was little evidence before the Court of either. The allowance for remorse was perhaps also generous, given that no explanation had been put forward for Mr Holtz’ actions nor in his letter of remorse. Further, to the extent that the s 27 report refers to rehabilitative steps in relation to addiction, and Mr Hudson seeks an allowance for that, the Judge noted at the sentencing that Mr Holtz had taken some steps to address his drug abuse.

• [33] As to the starting point, given the use of the weapon, the nature of the weapon, the attack to the head with the weapon and the injuries and impact on the victim, the Judge could not have been criticised for taking a higher starting point closer to seven years than the six years six months she adopted.

• [34] Further, while the Judge appropriately tempered the uplift for Mr Holtz’ previous offending because of the impact of the three strikes legislation on the sentence, this being a second strike offence, the more serious aggravating feature in this case was that it was committed whilst he was on bail for other violent offending.

• [35] Next, the Crown had a very strong case and Mr Holtz had no apparent defence. In the circumstances, the 25 per cent reduction for the guilty plea might be regarded as generous.

• [36] On that basis, and standing back and looking at the matter overall, 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. It cannot be said that the sentence imposed of four years nine months’ imprisonment was manifestly excessive. It was clearly within the range available to the Judge.

• [37] I do not overlook the impact of the three strikes legislation and the fact that, as a second-strike offence Mr Holtz will have to serve the full sentence. Of itself, that does not make an otherwise appropriate sentence manifestly excessive.

Summary

• [38] The significant delay of almost two and a half years before applying for leave to appeal is not adequately explained. The merits of the proposed appeal do not support the grant of leave. While the s 27 report is credible, it would not impact on the sentence imposed.

• [39] For those reasons, the applications to adduce further evidence and for leave to extend the time for appeal are dismissed.

Venning J