Ofisa v The the Queen
[2022] NZHC 2267
•7 September 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-239
[2022] NZHC 2267
BETWEEN WILLIAM OFISA
Appellant
AND
THE QUEEN
Respondent
Hearing: 6 September 2022 Appearances:
E Priest for Appellant
R Benic for Respondent
Judgment:
7 September 2022
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by me on 7 September 2022 at 10.30 am.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Auckland
OFISA v R [2022] NZHC 2267 [7 September 2022]
[1] Mr Ofisa pleaded guilty in the District Court to charges of aggravated burglary and wilfully attempting to pervert the course of justice.1 On 20 May 2022 Judge K Maxwell sentenced Mr Ofisa to three years and three months imprisonment.2
[2] Mr Ofisa appeals against sentence on the basis that the Judge ought to have given him greater discounts for mitigating factors. He says this error has resulted in an end sentence that is manifestly excessive.
The offending
Aggravated burglary
[3] The charge of aggravated burglary was laid as a result of an incident that occurred on 10 June 2020. At about 10 pm on that date Mr Ofisa went to a residential address in Avondale. He knocked on the door and it was opened by the male victim. Mr Ofisa asked the victim where his mother was and, upon learning she was not at the address, he demanded that the victim call her. The victim agreed to do so and went back into the house, closing the door behind him. Mr Ofisa then opened the door and followed the victim into his bedroom.
[4] Once inside the bedroom Mr Ofisa told the victim that his mother owed him money. He demanded that the victim hand over his car keys. When the victim refused to do so, Mr Ofisa took out a revolver and pointed it at him. Not surprisingly, the victim immediately handed over his car keys. Mr Ofisa then asked the victim if he had any money, but the victim said he did not. Mr Ofisa then instructed the victim to open the gate on the property. The victim obliged and Mr Ofisa proceeded to drive away in the victim’s vehicle.
[5] The police located Mr Ofisa driving the victim’s vehicle a short time later. They found four rounds of live ammunition in a bag Mr Ofisa was wearing on his person. When the police searched the vehicle, they found a revolver that was loaded with eight rounds of live ammunition.
1 Crimes Act 1961, ss 232(1)(a) and 117.
2 R v Ofisa [2022] NZDC 10063.
[6] Following his arrest, Mr Ofisa was initially remanded in custody. He was then granted EM bail to an address in Whanganui. He absconded from the address and returned to Auckland, where he committed further offences. He was then remanded in custody to await trial.
[7] Whilst in custody Mr Ofisa made a determined attempt to dissuade the victim’s mother from giving evidence at his trial. This involved telephone contact between Mr Ofisa and the victim’s mother. He also sent his partner and members of his family around to her address. This resulted in Mr Ofisa being charged with attempting to pervert the course of justice.
The sentence
[8] The Judge took the charge of aggravated burglary as the lead charge. The aggravating features of that offending included premeditation, the fact that Mr Ofisa was armed with a lethal weapon and that the offending occurred inside a residential address. These factors led the Judge to select a starting point of four years six months imprisonment. The Judge then considered an uplift of nine months was appropriate to reflect the charge of wilfully attempting to pervert the course of justice. This led to a sentence of five years three months imprisonment before taking into account aggravating and mitigating factors personal to Mr Ofisa.
[9] The Crown did not seek any uplift to reflect the fact that Mr Ofisa has previous convictions for burglary. Instead it sought an uplift to reflect the fact that Mr Ofisa had committed further offences after being released on EM bail on the charge of aggravated burglary. The Judge declined to apply an uplift to reflect this factor.
[10] Turning to mitigating factors, the Judge applied a discount of 20 per cent to reflect the guilty pleas. She then applied a further discount of 15 per cent to reflect mitigating factors identified in a report tendered under s 27 of the Sentencing Act 2000. However, the Judge declined to apply any discount to reflect Mr Ofisa’s addiction to methamphetamine because she was unable to discern any causal connection between the addiction and the present offending.
[11] The discounts applied to reflect mitigating factors led to an overall deduction of two years from the starting point of five years three months imprisonment. This resulted in the end sentence of three years three months imprisonment.
Grounds of appeal
[12] On Mr Ofisa’s behalf Ms Priest does not take issue with the starting point the Judge adopted on the charge of aggravated burglary, nor the uplift she applied to reflect the charge of wilfully attempting to pervert the course of justice. She submits, however, that the Judge erred in the following ways:
(a)In refusing to find a causal connection between Mr Ofisa’s addiction to methamphetamine and the present offending.
(b)In failing to apply a greater discount to reflect the other mitigating factors identified in the s 27 report.
(c)In failing to apply a discount of 25 per cent to reflect Mr Ofisa’s guilty pleas.
Decision
Addiction
[13] The Judge dealt with the issue of Mr Ofisa’s addiction to methamphetamine in the following passage of her sentencing remarks:
[35] When I look at the report overall, Mr Ofisa, and also the pre-sentence report, it is not apparent that your offending was the product of a marginalised upbringing or associated with deprivation, poverty, or systemic disadvantage as a result of social or cultural dislocation. I refer to these having regard to the principles that come through the likes of Zhang v R and Carr v R.3 I struggle to see a connection between your background and what might be described as something which is causative of your offending.
[36] I make the same observations as regards the references to addiction. Whilst the Court [in Zhang] held that addiction can be a mitigating factor, there does not appear to be sufficient evidence before me to conclude that, firstly, you were addicted to methamphetamine or that that contributed to this particular offending. For that reason, I do not consider that your
3 Zhang v R [2019] NZCA 507, [2019] NZLR 648; and Carr v R [2020] NZCA 357.
methamphetamine use can be seen to diminish your moral culpability in relation to this offending. Having said that, I can tell from the report that there have been struggles for you at times and I am prepared to take that into account in this sentencing exercise.
[14] For the Crown, Mr Benic submits that the only material before the Court regarding Mr Ofisa’s addiction is his own reporting of the issue. However, I do not consider that to be correct. The writer of the s 27 report interviewed Mr Ofisa’s partner, who said Mr Ofisa’s greatest problem has been his addiction to methamphetamine. She would obviously be in a position to know if this was the case. I am therefore prepared to accept, unlike the Judge, that Mr Ofisa has an addiction to methamphetamine. However, this does not automatically translate into a discount for sentencing purposes. In order to receive a discount Mr Ofisa must establish a causative link between his addiction and the present offending.
[15] Ms Priest submitted, as she had done in the District Court, that Mr Ofisa went to the victim’s address to purchase methamphetamine from the victim’s mother and became frustrated when she was not there. This prompted him to produce the pistol and steal the victim’s vehicle. Ms Priest points out that the victim’s mother provided the police with a written statement confirming that she had supplied Mr Ofisa with a gram of methamphetamine when he visited her address on a previous occasion.
[16] I am not prepared to accept the version of events described by Ms Priest in the absence of any evidence to support it. Mr Ofisa filed an affidavit before being sentenced in the District Court and this did not refer to the explanation advanced by Ms Priest at sentencing and on the present appeal. Nor did he provide that explanation to the writers of the s 27 report and the pre-sentence report.
[17] Mr Ofisa told the writer of the pre-sentence report his plan “was always to go the address to take [the victim’s] car”. He said he knew the victim’s mother and had been to her house previously because a friend had served a sentence of home detention there. He also said he owed the victim’s mother money, and he knew the car he wanted was at the address.
[18] When the writer of the s 27 report asked Mr Ofisa about the present offending Mr Ofisa said he did not go to the victim’s address with the intention of committing a
crime. He said that he could not recall or explain his actions as he was under the influence of drugs.
[19] None of the material before the District Court or this Court is to the effect that Mr Ofisa went to the victim’s address to acquire methamphetamine. Rather, it suggests he went there with the express intention of taking the victim’s vehicle. I therefore consider the Judge was correct to find there was no causative link between the present offending and Mr Ofisa’s addiction to methamphetamine.
Other mitigating factors identified in s 27 report
[20] The s 27 report confirms that Mr Ofisa grew up in a supportive environment in which both his parents worked hard to provide for their family. His childhood and adolescence appear to have been relatively uneventful until he was around the age of 13 years. At this point he began associating with persons who were consuming drugs and alcohol and he adopted their lifestyle. This led to a series of appearances in the Youth Court in 2008 and 2009. During this period he acquired several notations for burglary and other forms of offending involving dishonesty.
[21] On 1 August 2010 Mr Ofisa attended a party with his brother. A fight broke out and his brother was attacked by several other persons. Mr Ofisa tried to rescue his brother by driving a motor vehicle directly at the group attacking him. Unfortunately, however, the group scattered and Mr Ofisa ran over his brother, killing him instantly. This led to Mr Ofisa being charged with manslaughter. He received a sentence of eight months home detention on that charge on 16 February 2012.4 It is apparent that this incident had a profound effect on Mr Ofisa. The Judge who sentenced him on that occasion noted that there was no evidence of drugs or alcohol abuse.5 However, it seems clear that Mr Ofisa began to use methamphetamine in increasing quantities after this event. He still has strong feelings of guilt about the actions that led to the death of his brother.
4 R v Ofisa [2012] NZHC 171.
5 At [19].
[22] Mr Ofisa is the father of five children. He told the writer of the s 27 report that he needed to turn his life around because of this fact. The report states that Mr Ofisa is now motivated to undertake rehabilitative courses. Such counselling as he has received to date has plainly been inadequate to deal with the issues arising out of his brother’s death and the events that followed it.
[23] The s 27 report also confirms that Mr Ofisa is remorseful for the present offending and sought to attend restorative justice with the victim and his mother.
[24] The mitigating factors identified in the s 27 report were therefore remorse and motivation to undertake rehabilitative therapy. The Judge gave Mr Ofisa a discount of 15 per cent to reflect these factors, and this may be regarded as generous given the fact that Mr Ofisa absconded whilst on EM bail on the present charges and committed a raft of other offences. This does not bode well for his long-term rehabilitative prospects. I therefore do not accept that the Judge was required to provide a greater discount to reflect the other mitigating factors identified in the s 27 report.
Discount for guilty pleas
[25] Mr Ofisa made his first appearance on the charge of aggravated burglary on 11 June 2020. He entered his pleas on 15 February 2022. This means there was a period of approximately 20 months between first appearance and entry of guilty pleas.
[26] The events that led to Mr Ofisa being charged with wilfully attempting to pervert the course of justice occurred between 9 May and 15 June 2021, approximately a year after his arrest. The charge was added by the Crown on 13 August 2021.
[27] It appears that the original trial date of 6 September 2021 could not proceed, possibly because of the addition of the new charge. A replacement trial date was subsequently allocated for 13 June 2022. Mr Ofisa ultimately pleaded guilty approximately four months before his trial was due to commence.
[28] Ms Priest points out that she was not instructed until December 2021. Mr Ofisa’s previous counsel had advised him that his conviction for manslaughter in 2018 was a “first strike” offence under the so-called “three strikes” legislation. This
meant he would be required to serve the whole of any sentence imposed on the charge of aggravated burglary. The advice was incorrect because Mr Ofisa was less than 18 years of age when he committed the offence of manslaughter. He was therefore not subject to the three strikes regime at that time.
[29] Ms Priest also points out that disclosure of the telecommunications evidence that the Crown proposed to adduce in relation to the charge of attempting to pervert the course of justice did not occur until 22 January 2022. This formed the bulk of the evidence on that charge. Mr Ofisa asked to be arraigned on both charges very shortly thereafter. Ms Priest submits that Mr Ofisa ought to have been given a full discount of 25 per cent on both charges.
[30] There is some force in the Crown’s argument that it was always open to Mr Ofisa to enter a guilty plea to the charge of aggravated burglary much earlier than he did. Mr Benic submits that he chose to delay his plea for tactical reasons. However, I consider it is understandable that Mr Ofisa delayed his guilty plea on that charge given his belief as to the sentencing consequences that would follow.
[31] If Mr Ofisa had received a 25 per cent discount for his guilty pleas, his end sentence would have been reduced by approximately six months. However, the fact that he did not receive a greater discount for his pleas does not necessarily mean the sentence was manifestly excessive.
[32] At the time Mr Ofisa was sentenced he had four previous convictions or notations for burglary. Three of these were committed between 2008 and 2015, whilst the fourth was committed on 25 March 2021 after Mr Ofisa absconded whilst on EM bail on the charge of aggravated burglary. These convictions were obviously relevant in the context of a further charge of aggravated burglary and it is unclear why the Crown did not seek an uplift to reflect this factor at sentencing. I consider it would have been open to the Judge to apply an uplift of around six months to reflect the fact that at the time of the present offending, Mr Ofisa had three previous convictions for burglary. The fact that Mr Ofisa was prepared to commit a further burglary whilst on bail on the charge of aggravated robbery indicates that his proclivity for committing burglaries remains undiminished.
[33] I am therefore satisfied that any failure to provide Mr Ofisa with a discount of 25 per cent for his guilty pleas needs to be balanced against the fact that he did not receive an uplift to reflect his relevant previous convictions. The end sentence of three years three months has not been shown to be manifestly excessive.
Result
[34]The appeal against sentence is dismissed.
Lang J
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