Holdem v R [2018] NZHC 634 (28 March 2018)

Last Updated: 18 April 2018

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-000138 [2018] NZHC 634

BETWEEN	MICHAEL SCOTT HOLDEM Appellant
AND	THE QUEEN Respondent

Hearing:	28 March 2018
Appearances:	J Lucas for Appellant SRDD Bicknell Young for Crown
Judgment:	28 March 2018

ORAL JUDGMENT OF GENDALL J

Introduction

[1] On 13 July 2017 in the District Court at Christchurch, Mr Holdem was sentenced by Judge Farish to 27 months’ imprisonment on one charge of assault with intent to injure, one charge of unlawful possession of a firearm and one charge of unlawful possession of explosives.¹ He appeals that sentence on the grounds that it is manifestly excessive.

The offending

[2] The appellant, Mr Holdem, has been in an on-off domestic relationship with the victim of the assault for the past two years. That relationship, as Judge Farish noted in her decision, had clearly gone sour. After receiving several threatening text messages from Mr Holdem, which the victim says caused her to fear for her life, the

¹ R v Holdem [2017] NZDC 15338.

HOLDEM v R [2018] NZHC 634 [28 March 2018]

victim barricaded herself inside her home, nailing windows shut and boarding the doors to protect herself from Mr Holdem.

[3] Despite these measures, around 11:45 p.m. on 3 July 2016, Mr Holdem managed to gain access and get inside the victim’s house. She was hiding under a bed at the time. He found her using a torch he had with him and then punched her several times in the head with a closed fist. After she covered her face with her hands to protect herself Mr Holdem continued to punch the victim in the stomach. Before leaving, it is said he told the victim that she better not tell anyone or else he would find her and kill her and that she had better move out of that place real fast. She suffered clear injuries as a result of the assault, including a very swollen and bruised eye.

[4] Subsequently during the next day, a search warrant was executed at Mr Holdem’s home. A disassembled .22 rifle was found as well as 16 sticks of explosive gel, 14 metres of detonation cord and five electric detonators.

Jurisdiction and approach to appeal

[5] Mr Holdem appeals his sentence here as of right.² This Court can only allow the appeal if it is satisfied that there is an error in the sentence imposed and that an alternative sentence should be imposed.³ If the sentence under appeal can be properly justified, having regard to relevant sentencing principles, this Court cannot substitute its own views for those of the sentencing Judge. The sentence must be either manifestly excessive or inappropriate if the sentencing Judge’s discretion is to be interfered with. It is not enough that the Judge made an error in his or her reasoning. The focus is on the sentence imposed, rather than the process by which the sentence was reached.⁴

District Court sentencing

[6] In her decision in the District Court Judge noted Mr Holdem’s troubling recent history of being before that Court. At the time of the offending Mr Holdem was subject

² Criminal Procedure Act 2011, s 244.

³ Criminal Procedure Act 2011, s 250.

⁴ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

to release conditions, having earlier in March 2016 been sentenced to eight months’ imprisonment on charges of possession of a knife, possession of utensils for the purposes of using methamphetamine and unlawfully taking a motor vehicle. At the time of that offending he was subject to intensive supervision imposed on 16 January 2016 for charges of methamphetamine possession, driving whilst suspended, and weapons charges. The Judge acknowledged Mr Holdem’s genuine desire to change but warned in her decision that this will only be possible if he addresses his drug abuse problems.

[7] On Mr Holdem’s current offending Judge Farish took the assault charge as the lead charge. Taking into account the attack to the victim’s head, her injuries and the fact that the attack happened in the victim’s home late at night, the Judge adopted a two year starting point with reference to Goodman v Police.⁵ She then uplifted the sentence by six months to take into account the possession of a firearm and explosives charges and a further four months for the fact the offending occurred while the appellant was subject to release conditions. Finally, the Judge discounted the total by 15 per cent for a late guilty plea, saying it would have been 25 per cent if the plea had been entered at the earliest possible time. This left a sentence of 28.9 months which the Judge rounded down to 27 months to account for steps the appellant has taken whilst in custody.

Grounds of appeal

[8] On the present appeal, no issue is taken with the uplifts for offending whilst subject to release conditions and for the firearms and explosives charges. Mr Holdem, however, mounts two challenges to Judge Farish’s overall sentencing process here. The first is to the 24 months starting point for the assault charge and the second is relating to the 15 per cent discount for guilty pleas.

⁵ Goodman v Police [2016] NZCA 64.

Starting point

Submissions

[9] Turning now to the starting point, Mr Lucas, counsel for Mr Holdem, accepts the aggravating features of the offending in this case were the attack to the victim’s head and, to a moderate degree, the vulnerability of the victim. However, he says the offending was less serious than that in Goodman and that the Judge erred in adopting the same starting point as that case. He submits a starting point of, at most, 18 months was available and should have been adopted here.

[10] In response, Ms Bicknell Young for the Crown maintains the Crown submission before Judge Farish that a starting point of between 18 and 24 months was available. Thus, while the starting point might be seen as stern, it was within range. Ms Bicknell Young submits that the offending falls within Band 2 of Nuku,⁶ the aggravating features being an attack to the head, the vulnerability of the victim and an attack carried out within the victim’s home. She notes that, while the charge of threatening to cause grievous bodily harm did not proceed, the appellant’s threat was retained in the summary of facts on which the guilty plea was entered and thus should also be considered as an aggravating feature. Ms Bicknell Young maintains that the offending in Goodman is analogous and, if anything, the attack in that case was less serious than the appellant’s attack here.

Analysis

[11] Turning now to an analysis of the issues in this case, I note first that in Goodman a starting point of two years was upheld by the Court of Appeal. In that case the offender had an argument with his partner, grabbed her around the throat using two hands and threw her across the room. When she got to her feet he pushed her over and this happened a number of times. He then headbutted her and pushed her outside. There was also a separate charge of male assaults female, attracting a discrete uplift consequent on what subsequently occurred outside. As Ms Bicknell Young in her written submissions rightly notes, that continued offending is immaterial to the comparison here.

⁶ R v Nuku [2012] NZCA 584.

[12] On these matters I do not fully agree with the defence suggestion which has been made that the offending in Goodman was more serious than the offending in the present case. In both cases the assaults occurred in the context of a domestic relationship and there was prolonged violence with multiple blows to vulnerable areas of the victim’s body. In my view, the fact that the present attack occurred after threats were issued that made the victim feel she needed to barricade herself into her own home is particularly aggravating. On top of the physical violence, there is clearly a high level of psychological violence.

[13] In Goodman the Court of Appeal in upholding the starting point said that the incident would have been a very frightening and alarming incident for the victim.⁷ Here, the element of fear was at least as strong, if not stronger.

[14] Recent Court of Appeal authority such as this decision in Goodman provides justification enough for the District Court, in my view, to adopt an analogous starting point. It alone compels the conclusion, as I see it, that Judge Farish did not err in exercising her discretion in the way she did. It should be noted though that, in comparison to other recent cases, the starting point is perhaps at one level a reasonably stern one. For example, in Kareko v Police⁸ a starting point of 16 months was adopted where the offender dragged his partner into the bedroom and punched her several times in the head, arms, legs and stomach.

[15] In Harris v R⁹ the offender grabbed her victim by the hair and punched her five times in the head and pushed her to the ground, causing her to strike her head on a table. She then kicked her six times in the head before calling her son into the room so he could join in with the attack. A starting point of 22 months adopted at first instance was reduced to 16 months on appeal.

[16] In Paraone v Police¹⁰ the offender pushed his partner’s head down into an oven, causing soreness to the back of her head. He then grabbed her by her clothing and pushed her through the house to the bedroom and then outside. When outside he

⁷ Goodman v Police, above n 5 at [12].

⁸ Kareko v Police [2016] NZHC 870.

⁹ Harris v R [2017] NZHC 1404.

¹⁰ Paraone v Police NZHC 2549.

wrapped a dog chain around her neck and secured the other end of the chain to her ankle and dragged her around by that. When she feigned unconsciousness he poured a bucket of water over her head. A starting point of 18 months was upheld on appeal.

[17] In Goodman, the Court of Appeal addressed the review by counsel of the case law in a footnote, saying that those comparator cases only illustrated that essentially these cases turn on their own particular combination of facts.¹¹

[18] I agree. In the present case I need to say that, given the particularly egregious set of aggravating features I have noted above, here the 24 months starting point although perhaps towards the top of the available range, was not outside it.

Guilty plea discount

Submissions

[19] Mr Lucas, for the appellant, says a guilty plea discount approaching the maximum of 25 per cent should have been given here rather than the 15 per cent Judge Farish ordered. Initially Mr Holdem faced additional charges of burglary, threatening to cause grievous bodily harm and three other counts of possession of a firearm. From an early stage he indicated he would plead guilty to the charges he ultimately faced if these other charges were dropped. The Crown, it seems, did not accept this proposal until the morning of the trial.

[20] Mr Williams submits therefore that the guilty pleas were entered as soon as the other charges were dropped and as a result full credit should have been given.

[21] In response, Ms Bicknell Young explains that the Crown did not pursue the further charges because on the morning of the trial the Crown were provided with a brief of evidence from a proposed defence witness which suggested the victim had planted the weapons at Mr Holdem’s house.

[22] She contends that Mr Holdem could have entered guilty pleas earlier and that the decision not to do so was a tactical one. Ms Bicknell Young refers to the following

¹¹ Goodman v Police, above n 5 at [11].

passage from the Court of Appeal’s decision in R v Tipene, more recently affirmed in

Cooper v R.¹²

As to the guilty plea, [counsel’s] submission was that the appellant’s plea was made at the first reasonable opportunity because an earlier admission of guilt might have jeopardised the appellant in relation to the three counts on which he was later discharged. This submission fails to distinguish between a plea at the earliest opportunity for which credit will be given, and delaying a plea for tactical reasons, however reasonable that tactic might seem to the guilty person, the timing of which may deprive the offender of a discount.

Joint memorandum and affidavit of Margaret Sewell

[23] I turn now to consider a joint memorandum filed by counsel dated 23 March 2018 together with the affidavit of previous counsel, Margaret Sewell. On 23 March 2018 counsel filed a joint memorandum setting out the circumstances around the guilty plea. The memorandum states that on the first day of Mr Holdem’s trial there was an adjournment due to threats made by another party towards Mr Holdem. During the adjournment Mr Holdem’s counsel gave counsel for the Crown a brief of evidence from a proposed defence witness. As I have already mentioned, the brief contained allegations that, effectively, the complainant had planted firearms and ammunition at Mr Holdem’s house without his knowledge.

[24] Counsel’s memorandum goes on to state that “because of the issues with the trial and the fact that the complainant was somehow involved with the alleged offending, it was agreed that the matter could be resolved by way of amended charges.”

[25] The affidavit filed for this appeal of Margaret Sewell, who was Mr Holdem’s counsel in the District Court at trial, confirms this account. She notes that she was “under no obligation to provide the brief of evidence of the defence witness to the Crown prosecutor” but she did so “with a view to resolving the trial without the need for further delay and the calling of witnesses”.

¹² R v Tipene CA269/01, 27 May 2002 at [13]; Cooper v R [2013] NZCA 551.

Analysis

[26] The cases cited here by Ms Bicknell Young for the Crown seem to suggest that a guilty plea delayed for tactical reasons should be treated as a guilty plea delayed for any other reason. However, in Mains v R¹³ the Court of Appeal recently revisited the issue. There the sentencing Judge had allowed only a nominal two per cent discount, which in the circumstances amounted to one month, for a guilty plea that was entered at the eleventh hour. In that case, shortly after being charged, the offender’s counsel wrote to the Crown solicitor proposing a resolution of the charges whereby he would plead guilty to some charges if other charges were dropped. The offer was conditional on a review of the admissibility of some of the evidence. That letter and a subsequent letter were not responded to. A third attempt, however, was and agreement was reached the week prior to the commencement of the trial.

[27] On appeal it was submitted first, that the end result was broadly in accordance with the plea proposal sent to the Crown at the earliest opportunity and, secondly, that the lateness of the plea was consequent on the Crown’s failure to engage with the offer. It was submitted that 25 per cent discount should therefore have been awarded. The Crown submission on appeal, however, was that, because the offer at the early stage was conditional, no credit should be given.

[28] In Mains, the Court of Appeal was of the view that the plea proposal was “a relevant factor to the overall assessment of the appropriate guilty plea discount”. The Court of Appeal said, further:¹⁴

Each case will turn on its own facts, but in this case the admissibility challenges were not so clearly without merit that Mr Mains should have been expected to forego his right to challenge the admissibility of evidence and simply plead guilty at the outset. Further, the somewhat qualified nature of the...plea proposals did not prevent the Crown from considering and responding to them...Obviously there was no obligation on the Crown to engage in plea discussions...It is possible, however, that if the discussions that took place in 2015 had occurred earlier, a similar result would have been reached despite the ongoing admissibility issues.

As Ms Wong pointed out, the charges that Mr Mains ultimately entered pleas to did not exactly mirror those in his November 2012 plea proposal (or indeed his subsequent proposals)...Viewed in the round, however, it is fair to say that

¹³ Mains v R [2016] NZCA 290.

¹⁴ Mains v R, above n 13 at [26] – [28].

(subject to potential admissibility issues) Mr Mains did indicate at an early stage that he was willing to plead to charges of possession and sale of cannabis, but that he was not willing to plead guilty to cultivation of cannabis.

Taking all of these matters into account, we are satisfied that there has been an error in approach to the assessment of the discount for the guilty plea. We substitute a discount of four months (approximately 10 per cent). This takes into account Mr Mains’ early indication that he was willing to plead to charges of possession and sale of cannabis, but also the benefit he has received by the withdrawal of other charges and the fact that his guilty pleas were not entered at the first available opportunity after the admissibility issues were finally resolved in early July 2015.

[29] In my view, a 15 per cent discount in the present case is in accordance with this reasoning and is appropriate. Any plea proposal is a relevant factor in determining the appropriate discount, but it is not the only consideration. As in Mains, Mr Holdem here has had the benefit of other charges against him not being pursued which, if this had not been the case, might ultimately have led to the appellant facing a significantly longer sentence. Whenever a guilty plea is entered at the last minute a good deal of the benefit to the criminal justice system for which guilty pleas are incentivised, such as the saving of court and counsel time, will not be realised. The correct approach in such circumstances is to award a discount higher than what would ordinarily be awarded for a last minute plea, but short of the maximum 25 per cent.

[30] I conclude therefore that the 15 per cent discount Judge Farish arrived at here was appropriate.

Conclusion

[31] In conclusion, I note that this was a case involving nasty and serious violence after a forced break in by the appellant against his former partner. Out of fear of him, the victim had barricaded herself into her home following threats against her by the appellant. It was violence in the nature of serious and intimidating domestic violence and this, in my view, needs to be met with an appropriate and stern response. That is what has occurred in this case, as I see the position.

[32] With these comments in mind, and for all the other reasons I have outlined in my decision above, Mr Holdem has not demonstrated that there was an error in the
overall sentence imposed by Judge Farish and that an alternative sentence should be imposed here. This appeal is, therefore, dismissed.





...................................................

Gendall J

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co, Christchurch