Ofisa v The the Queen - [2022] NZHC 2267

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ofisa v The the Queen

Details

AGLC: Ofisa v The the Queen [2022] NZHC 2267
Case: [2022] NZHC 2267
Decision Date: 7 September 2022

CaseChat Overview and Summary

William Ofisa appealed against the sentence imposed on him by the District Court, arguing that the Judge had erred in failing to give him greater discounts for mitigating factors, resulting in a sentence that was manifestly excessive. The appeal was heard by Lang J in the High Court of New Zealand. The legal issues before the court were whether the Judge had erred in finding that there was no causative link between Mr Ofisa's addiction to methamphetamine and the present offending, whether the Judge had erred in failing to apply a greater discount to reflect other mitigating factors identified in a report tendered under s 27 of the Sentencing Act 2000, and whether the Judge had erred in failing to apply a discount of 25 per cent to reflect Mr Ofisa's guilty pleas. The court found that the Judge was correct to find there was no causative link between the present offending and Mr Ofisa's addiction to methamphetamine. The court also found that the Judge had applied a generous discount of 15 per cent to reflect other mitigating factors identified in the s 27 report and that the failure to provide Mr Ofisa with a discount of 25 per cent for his guilty pleas needed to be balanced against the fact that he did not receive an uplift to reflect his relevant previous convictions. The court therefore dismissed the appeal against sentence.

Orders