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High Court of New Zealand Decisions |
Last Updated: 7 May 2020
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CRI-2019-404-537
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BETWEEN
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ZAINE JAMES HUGENHOLTZ
Appellant
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AND
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NEW ZEALAND POLICE
Respondent
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Hearing:
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16 March 2020
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Appearances:
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J Rempe for Appellant
E L Thomas for Respondent
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Judgment:
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30 March 2020
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JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 30 March 2020 at 3.30 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Meredith Connell, Crown Solicitor, Auckland Public Defence Service, Auckland
HUGENHOLTZ v POLICE [2020] NZHC 659 [30 March 2020]
[1] The appellant, Mr Hugenholtz, appeals against a sentence of three years, nine months’ imprisonment imposed by Judge Rollo on 18 November 2019.1
[2] Mr Hugenholtz contends the sentence was manifestly excessive because the Judge erred in identifying a starting point of four years and nine months’ imprisonment for what I shall refer to as the “violence offending”, and in failing to reduce the ultimate starting point of six years and 10 months’ imprisonment for “totality”.
Offences
[3] Mr Hugenholtz was sentenced for the following offending:
(a) 28 March 2019: strangulation (x 2);2 threatening to kill (representative);3 assault with a weapon;4 and assault on a person in a family relationship (representative).5
(b) 20 September 2018: driving whilst disqualified (second) 6 and careless use of a motor vehicle.7
(c) 26 October 2018: dangerous driving;8 failing to stop;9 and driving whilst disqualified (third or subsequent).10
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.
7 Section 37(1). The maximum penalty is a $3,000 fine.
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 disqualification
(d) 13 October 2018: unlawfully taking a motor vehicle;11
24 October 2018: theft under $500 (being $90 worth of petrol);12 7 December 2018: breaching release conditions;13 and
31 March 2019: possession of utensils for smoking methamphetamine.14
Sentence
[4] The Judge adopted a starting point of three years, nine months’ imprisonment for 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 the representative charge of assault on a person in a family relationship. This brought the starting point for the violence offending to four years, nine months’ imprisonment.
[5] The Judge then applied the following uplifts, largely in accordance with Ms 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; and
11 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.
[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 factors personal to Mr Hugenholtz, comprising five percent for rehabilitative efforts; 10 percent for remorse, regret and Mr Hugenholtz’s offer to attend a restorative justice conference; 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:
INTRODUCTION
The defendant, Zaine James HUGENHOLTZ has been living at his partner’s home 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 address with 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 about 4 months which was recently ended by the victim at approximately 11:00 am on Thursday the 28th of March 2019.
There have been two previous recorded family violence callouts between the defendant and victim during their time together.
...
THEFT – CRN: 19004003884
About 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 victim were inside their bedroom when a verbal altercation ensued resulting in the defendant 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: 19004003879
Later this same day about 4:30 pm, the defendant returned home in an agitated state and began a prolonged verbal argument with the victim inside their bedroom which went on for hours to about 10.55 pm. Between these times the 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 bed when the defendant grabbed one of his own t-shirt’s, stood over her and shoved some of it in her mouth as he held both ends of the t-shirt applying downward pressure. The victim’s nose had been blocked from continuous crying throughout the early evening and [she] could not breathe as a result of the defendant’s actions.
IMPEDES BREATHING – CRN: 19004003881
The defendant continued hurling verbal abuse at the victim and while she was standing next to the bed, he grabbed her again with both his hands around her throat and squeezed really hard for several seconds restricting the victim’s normal breathing and causing her to blackout and fall to the ground.
As the victim slowly came around, the defendant picked her up and placed her on 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 but the defendant told her that she could not leave fearing that she would contact the Police.
THREATENING TO KILL – CRN: 19004003882
(Representative Charge)
The defendant on two separate occasions held a red handled box cutter knife to the victim’s throat and threatened to kill her if she said anything out loud as the victim’s mother was inside the house.
[ASSAULT WITH A WEAPON] – CRN: 19004003883
A struggle ensued while the defendant was holding the box cutter knife and in the process, cut the victim on her right tricep area.
The defendant then turned the box cutter knife on himself towards his throat area and threated to cut his jugular vein before moving the knife to his wrist area, again threatening to hurt himself.
ASSAULT ON A PERSON IN A SPECIAL RELATIONSHIP (Representative
Charge as per CRN: 19004003878)
Throughout the evening the defendant punched the victim about thirty times around her head and face area while his fist was wrapped inside a t-shirt in order to leave less marks around the victim’s head and face. He has also pulled at the victim’s hair several times uprooting hair from her skull.
On two separate occasions during the evening the defendant noticed blood on the victim’s upper clothing which were a result of the dripping blood from her face 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 to wrap around his own neck and was distracted ... which provided an opportunity 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 ... and taken back to Auckland Central Police Station.
...
As a result of [his] bags being searched ... various drug paraphernalia were located namely; a glass methamphetamine pipe, 3 x modified straws and a mouth piece for a bong.
INJURIES TO VICTIM
As a result of the chain of violent events throughout the Thursday evening, the victim received a swollen cut bottom lip, minor superficial cut to her right tricep 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 the defendant HUGENHOLTZ.
The defendant started the vehicle using a key that he had obtained dishonestly at an earlier date.
...
[DRIVING OFFENCES — 20 SEPTEMBER 2018]
...
On [20 September 2018], the Defendant was the driver of a Honda Motor Vehicle ... on West Lynn Road, Titirangi.
West Lynn Rd is a residential area, governed by a 50kph speed limit. For the majority of the street there is no centre line, the road is crowded with parked cars 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 the opposite direction.
After the Defendant crashed into the Suzuki, he veered off onto the other side of 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 Black Mazda ... on Pomaria Road in Henderson, Auckland.
Pomaria Road is a residential 50kmph area, the weather at the time was fine and 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 Police requested the Defendant to remain and hand over the keys.
The Defendant failed to remain and accelerated away from the traffic stop at speed and turned off his head lights.
The Defendant continued to drive at speed through and around traffic and away from Police. He was ... eventually stopped ... in Henderson where he was 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 of consciousness, 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 — effectively a knife — to someone’s throat, and to deliver 30 odd punches to the head and body is equally dangerous behaviour. The Judge also referred to Mr Hugenholtz’s previous convictions for violence, which he considered again correctly revealed “an ongoing pattern of very serious violence against women.”17
[11] It was common ground before the Judge that the two charges of strangulation or of impeding breathing were the lead offences. This relatively recently enacted offence carries a maximum term of imprisonment of seven years. It also appears to have been common ground that for the second, more serious strangulation, the Judge
15 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 v Police, of three years, three months’ imprisonment.18
[12] From there, Ms Rempe submitted to the Judge that a one month uplift for the other, first strangulation, would be a sufficient starting point for the two offences, so no 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, but regardless, he treated all the offending bar the assault comprising the punches, as part of a single incident, adopting a starting point of 45 months’, or three years nine months’, imprisonment.19 As to the assault, the Judge considered the duration, number of blows, vulnerability of the victim and breach of trust made it an extremely serious incident, warranting an uplift of 12 months on its own, “deserving a starting point of half” the maximum possible of two years’ imprisonment.20
Starting point
[14] On appeal, Ms Rempe submitted the starting point for all the violence offending ought to have been no more than four years’ imprisonment, being nine months’ less than the Judge’s starting point for that offending. In support of this submission, Ms Rempe referred me to Ackland v Police, T v Police, R v Singh and Latu v Police.21
[15] The defendant in Ackland strangled his wife of many years, when their children were present. The couple had been arguing, he “slapped her across the face four or five times”, and then strangled her to a point she lost consciousness and her body was tingling. 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 knife to his neck. The Judge adopted a starting point of three years’ three months’ on the strangulation, added three months for Mr Ackland’s assault on his wife (assault on a
19 Police v Hugenholtz, above n 1, at [18].
20 At [18].
person in a special relationship) and six months for the assault with a weapon to the neighbour. Cooke J upheld the Judge on appeal.
[16] In T, T and the victim had been in a relationship for nine years, had two children and, after various violent acts for which he was charged separately, T “grabbed [the victim] 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 bladder control. Doogue J upheld the District Court Judge’s three year starting point for the strangulation, but described it as “lenient”.
[17] In Singh, the defendant was for sentence on injuring with intent to cause grievous bodily harm, which has a maximum sentence of 10 years’ imprisonment, threatening to kill and assault with a weapon. Suspicious his wife and their flatmate might be romantically interested in each other, Mr Singh kicked his wife in the stomach, struck her to the head and body with a cricket bat, strangled her to the point she lost consciousness, threatened to kill her, and likewise the flatmate. Davidson J adopted a starting point of four years’ on the injuring charge, uplifted by six months for the other offending.
[18] In Latu, the defendant was for sentence on a raft of offending including three charges of male assaults female, one of assault with intent to injure, two of injuring with 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 two strangulations. 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 not challenged in the High Court.
[19] Plainly, Singh and Latu have their limitations because the defendants were not charged 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 in Singh carried a higher maximum terms of imprisonment.
[20] Ms Rempe acknowledged the second strangulation in this case, and the assault comprising the punches, made the case more serious than Ackland and T, hence her
submission that an overall starting point of four years’ imprisonment would be appropriate.
[21] Despite Ms Rempe’s excellent submissions on behalf of Mr Hugenholtz, I am not 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 actions presented, his offending was protracted, and occurred behind closed doors and in the victim’s own family home. It constituted a gross breach of trust, and of the hospitality her family were extending to him. If I were required to break it down, I would have taken the three year, three month starting point in Ackland, and uplifted by six months for the second strangulation, by at least six months for the assault comprising the punches, and that would still leave the representative charge of threat to kill and the assault with a weapon. I have also considered other appeals to the High Court against sentence for strangulation.22 The starting points have ranged from two years’ imprisonment to three years, three months’ imprisonment in Ackland. This case was as serious as Ackland, hence my decision.
[22] To conclude, I am satisfied four years, nine months’ imprisonment was within range.
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 the gravity of the overall offending, requiring a reduction.23
[24] Ms Rempe submitted that a sentence of more than five years would be out of all proportion and therefore a reduction was required.
[25] Crown counsel, Ms Thomas, rejected the prospect of any reduction for totality reasons, and she also submitted the Judge’s reductions for personal mitigating factors
23 Sentencing Act, s 85(2).
were generous, so that, even if the Judge’s overall starting point appeared high, the generous 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 month period. First, the violence offending, secondly the taking of the motor vehicle, and thirdly the two driving whilst disqualified offences, the failure to remain stopped and the subsequent dangerous driving. It is inevitable that offending of this scale will lead to what on its face may appear a high combined starting point. I also bear in mind that eight months of the overall starting point derived from Mr Hugenholtz’s breach of release conditions, his offending whilst on bail and his prior convictions.
[27] I dismiss this appeal accordingly. I thank both counsel for their excellent submissions and assure Mr Hugenholtz that Ms Rempe could not have said more on his behalf than she did.
Peters J
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