THE QUEEN v MICHAEL SCOTT HOLDEM [2000] NZCA 35 (2 March 2000)

IN THE court of appeal of new zealand

ca480/99

THE QUEEN

V

MICHAEL SCOTT HOLDEM

Coram:	Thomas J Blanchard J Tipping J
Decision: (ex parte)	2 March 2000

judgment of the court delivered by blanchard j

[1] The appellant, Mr Holdem, and his co-accused Mr Isherwood, pleaded guilty to representative charges of living off the earnings of prostitution, sexual intercourse with a girl under the age of 16 and above the age of 12, and administering morphine.They were both sentenced in the High Court at Christchurch on a cumulative basis to an effective term of imprisonment of 8 years comprising 2 years, 2 years and 4 years imprisonment for the respective charges.Mr Holdem now appeals against that sentence.

[2] The appellant applied for legal aid in respect of this appeal.The Registrar declined the application after consultation pursuant to s15 Legal Services Act 1991.The appeal has, therefore, been determined on the basis of written submissions for the appellant.

[3] The complainant was a 14 year old girl when she met the appellant and Mr Isherwood.Through her involvement with them she began to use morphine which was administered by them.They then introduced her to prostitution as a means of supporting her drug addiction.Her considerable earnings from prostitution were taken by Mr Isherwood and the appellant and in return she was supplied and administered morphine.Mr Isherwood appears to have been the principal force behind introducing the complainant to prostitution and teaching her skills relevant to the trade.He also appears to have been primarily responsible for initiating her use of morphine.However, when Mr Isherwood was recovering from a serious head injury, the appellant assumed responsibility for sending the complainant out to work as a prostitute, collecting her earnings and administering her morphine.During part of this time the complainant was living with the appellant and had sexual intercourse with him.The appellant also had sexual intercourse with the complainant on at least one previous occasion.This was when they first met.The evidence establishes, and was accepted by the sentencing Judge, that at these times the appellant was aware the complainant was only 14 years old.

[4] The submissions of the appellant raise a number of grounds of appeal.In essence, the appellant disputes matters of fact upon which the Judge relied in determining the sentence.There are three main respects in which the appellant disputes facts: first, that he did not at any stage administer morphine to the complainant; secondly, that there is no evidence that he received money earned by her through prostitution and, thirdly, that he had sexual intercourse with her only once and did not know that she was only 14.

[5] The summary of facts on the basis of which the appellant pleaded guilty describe his activities in administering morphine to the complainant and living off her earnings of prostitution.Those matters were not in dispute before the sentencing Judge, save in minor respects.The first was the exact role played by Mr Holdem concerning the morphine.It was suggested by his counsel that it was a secondary role.On the basis of the evidence at depositions the Judge formed the view, which he was entitled to do, that it was a "team effort".He rightly saw the question of whether the appellant was using the complainant's earnings to support his drug habit as irrelevant.Finally, he observed that there was an issue over whether the appellant knew the complainant's age when he first had sexual intercourse with her.Again, on the basis of deposition evidence, the Judge accepted that the appellant had been overheard by a police constable to say to another person in custody that he was aware of her age and had sexual intercourse with her regardless.

[6] There is no basis to disturb the sentencing Judge's factual findings on which he proceeded to sentence the appellant.He was not asked to hear oral evidence.

[7] The appellant also complains about the length of the term, saying that the sentences should have been imposed concurrently.This would have meant an effective term of imprisonment of four years.We have no hesitation in rejecting this submission.This was, in cumulation, very serious and prolonged offending, for financial gain and sexual gratification, against a vulnerable young girl.As a result of the activities of the offenders she developed Hepatitis C which a doctor has described as a "life sentence".In our view the total sentence could not be less than what would have been imposed for a rape with serious aggravating factors.An eight year sentence is by no means excessive.

[8] The appellant also raises a question of parity.Another accused, Mr Vincent, received a sentence of nine months imprisonment cumulative upon an existing prison term.However, Mr Vincent was charged only with manufacturing and administering morphine, and his involvement had begun after the complainant was already introduced to morphine by the other offenders.Also, Mr Vincent was not involved in the exploitation of the complainant.

[9] The appeal is dismissed.