Ogle v The King

[2024] NZHC 2228

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2024-488-000035

[2024] NZHC 2228

BETWEEN

AARON CHARLES FREDERICK OGLE

Appellant

AND

THE KING

Respondent

Hearing:

8 August 2024

Counsel:

S Thode for Appellant

CHB Megala for Respondent

Judgment:

12 August 2024

JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 12 August 2024 at 11 am.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Whangārei. Thode Utting, Auckland.

OGLE v R [2024] NZHC 2228 [12 August 2024]

The appeal

[1]    Aaron Ogle appeals his sentence of two years and five months’ imprisonment in relation to offences of family violence, including strangulation.1 The appeal must be allowed if there is an error in the sentence and a different sentence should be imposed,2 or in short, if the sentence is manifestly excessive.3

Background

[2]    Mr Ogle pleaded guilty to three charges of assault on a person in a family relationship;4 two charges of strangulation;5 and one each of assault with a weapon;6 wilful damage;7 and assault with intent to injure.8

[3]    Mr Ogle’s offending was summarised by Judge T Bayley at sentencing. I gratefully adopt the Judge’s summary:9

Your offending occurred on three occasions described as incidents 1, 2 and 3 in the Crown summary of facts. The victim of your offending is your former partner and at the time of your offending in 2022, you had been in a relationship with her for two years.

I turn to the first episode of the offending described as incident 1. On 28 April 2022 after an evening of drinking while in the car with the victim, in derogatory terms towards the victim, you accused her of being unfaithful. At that time the victim bit your nose. You responded by grabbing the victim around her neck and squeezing, pushing her back into the seat. During that time, the victim could not breathe for approximately 10 seconds. You then grabbed the back of the victim’s head with your hands and forced her head down towards the footwell of the vehicle preventing her from moving.

A short time later, you drove the victim towards her home address in Hikurangi but deliberately missed the turn-off. She became concerned about where you were taking her. She pushed your face out of frustration. In response, you hit the victim to the right cheek with your left hand using a closed fist. As a result of that series of assaults, the victim suffered a black eye and bruising on her face, legs and arms.

1      R v Ogle [2024] NZDC 9543.

2      Criminal Procedure Act 2011, s 250(2).

3      Tutukangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

4      Crimes Act 1961, s 194A; maximum penalty, two years’ imprisonment.

5      Crimes Act, s 189A(b); maximum penalty, seven years’ imprisonment.

6      Crimes Act, s 202C(1)(a); maximum penalty, five years’ imprisonment.

7      Crimes Act, s 269(2); maximum penalty, seven years’ imprisonment.

8      Crimes Act, s 193; maximum penalty, three years’ imprisonment.

9      R v Ogle, above n 1, at [2]–[11].

Several months later on 24 September 2022, the victim had been intending to go to a bar with her hockey team. You offered to drive her. When she was at your home, you became jealous and the two of you began to argue. The victim threw a vape on the floor out of frustration. At that point you jumped off the bed and grabbed the victim around the neck with one hand, pushing her up against a wall of a walk-in-wardrobe in that same bedroom. The victim hit her head against the wall, she made choking noises as she could not breathe for a few seconds. She collapsed on the floor immediately you let go of her neck. She grabbed her belongings and got into her car to leave. You pulled the victim out of her car, the two of you ended up wrestling on a gravel driveway.

She ran behind the house and got into your vehicle to leave the property. You saw her do this and ran, you grabbed her by the arm and threw her to the ground. As a result she hit her head. She sustained bruising to her face and legs as well as swelling and bruising to her head as a result of the second episode of offending.

The following year on 26 March 2023, the victim had arrived at your house in Opuawhanga. The two of you argued about the relationship the victim had had with her ex-husband. She attempted to leave to diffuse the situation, but you had taken her car keys, phone and bag. This essentially prevented her from leaving. You then demanded answers from her about her relationship with her ex-husband. She grabbed your keys and ran down the driveway. You chased her. You picked up a rock said to be the size of a Frisbee and held it above your head while approaching the victim indicating that you were going to hit her with it or throw it at her. You then eventually threw the rock to the ground, telling the victim that she was not worth it and that she was lucky that you were not on drugs or she would be dead. You refused to return to the victim her keys, phone and bag.

You then lifted a box out of the complainant’s property which contained a laptop, you threw that on the ground, that laptop screen smashed. The value of that laptop was said to be around $900. The victim grabbed your face when you refused to give back her property. You then overpowered her by pulling her back inside the home and pushing her down on a chair. You then demanded answers from her about her relationship with her ex-husband. You placed the victim in an armlock, twisting and threatening to break her thumb. The victim started answering questions so that you would stop hurting her.

You told the victim that if she did not talk, that you would tie her hands and legs and tape her mouth shut and put her in what you call the dungeon, which was a lockable cupboard under the stairs. You told the victim to stay in the house while you went to get some food and you left the property for around half an hour. As the victim did not have her key, she had no means or method by way of leaving the property.

Later that evening, you decided you wanted to go to sleep and asked the victim to turn off the light. She refused and told you to do it yourself. As a result you backhanded the victim in the face with a closed fist. She hit you back in the face. You straddled the victim on the bed and punched her in the back of the head four times, described as being full-force punches. The victim saw flashes of light from each blow. You then grabbed the victim around the neck with both of your hands, squeezing hard. This cut off her air supply

completely for around 20 seconds. At that time the victim believed she was going to die. When you let go of her neck she gasped for air.

As a result of that third episode of offending, I am told by way of the summary that the victim received soreness to the neck and further injuries which included grazing and bruising.

[4]    The Judge settled on a global starting point of six years’ imprisonment. She deducted:

(a)20 percent for Mr Ogle’s guilty pleas “which have been of great benefit to the victim”.10

(b)10 percent for Mr Ogle’s personal circumstances, which the Judge concluded had contributed to the offending.

(c)10 percent for remorse “and the genuine steps … taken towards … rehabilitation”.11

(d)Five percent “to reflect the separation from [Mr Ogle’s] children” given his incarceration.12

(e)A “generous discount”13 of 10 months’ imprisonment for time on electronically monitored bail.

[5]    As observed, this resulted in a sentence of two years and five months’ imprisonment.

The contention

[6]    Mr Ogle contends  the  sentence  is  manifestly  excessive.  On  his  behalf, Ms Thode argues the starting point should have been five years and three months’ imprisonment (after consideration of totality), and that the discounts at [4(b) and (c)]

10     R v Ogle, above n 1, at [34(a)].

11     At [34(c)].

12     At [34(d)].

13 At [35].

should have been greater. Ms Thode also contends the sentence should have been home detention rather than imprisonment.

Analysis

Starting point

[7]    As may be gleaned from [6], Ms Thode’s challenge to the starting point is somewhat muted. Essentially, the contention is that the starting point of six years’ imprisonment is a little too high. Indeed, Ms Thode acknowledges “a starting point of five years and nine months’ imprisonment could be adopted across all charges”, subject to an adjustment for totality of approximately six months.

[8]    I begin with the obvious: sentencing is an art, not a science, and a measure of discretion attaches to a sentencing Judge’s evaluation of matters such as the starting point for an offence (or offences), and the level of discount afforded to mitigating features. These points are so well known no citation of authority is required for them.

[9]    The offending comprised by incident 3—as it was called at sentencing—was more prolonged, and appreciably more serious, than that in the guideline judgment of Shramka  v  R,14  in  which  a  three-year  starting  point  was   adopted   by   the Court of Appeal. It follows the four-year starting point in relation to incident 3 was available.

[10]   Incidents 1 and 2 were also serious. Each involved the application of pressure to the airways;15 additional violence (including a punch to the face in incident 1 leaving a black eye); and constraint by Mr Ogle of the victim (for example, pulling the victim out of the car, onto the gravel driveway, during incident 2). A starting point of more than two years for both incidents could not be impeached.

14 Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348.

15 Incident 1 included strangulation but this aspect was treated, following a plea arrangement, as but one aspect of what was described as a “representative” charge of assault on a person in a family relationship; see [22].

[11]   The question then becomes whether an  available global starting point  (of  six years’ imprisonment) required a downward adjustment for totality. Two cases of the Court of Appeal are of assistance. In the first of Ashcroft v R, that Court said:16

We agree with the Judge’s assessment. A totality reduction is not automatic. It is only if the end sentence is “wholly out of proportion to the gravity of the overall offending” that a discount must be given. The high unlawful sexual connection starting point and the modest discount for youth were balanced by a lenient starting point on the earlier indecent assaults and attempted rape. While our consideration of those two issues has varied from that of the Judge, it is our conclusion that in all the circumstances five years and six months’ imprisonment was a fair sentencing response and no deduction was required as the end sentence was not out of proportion to the gravity of the overall offending.

In the second of Blackwood v R, the Court said:17

We are also satisfied the criticism of double counting is unjustified. It overlooks the fact that although there was only one charge of posting online, Mr Blackwood carried out the threat in relation to two other victims in addition to D. We note too that the Judge was acutely aware of the risk of double counting. She made two specific references to the risk and took care to avoid it. As regards totality, it is correct that the Judge did not make any reduction on account of totality. But she was not obliged to do so. Totality is a principle that should be applied flexibly. The critical question is whether the starting point appropriately reflected the gravity of the overall offending viewed in the round. We are satisfied it did.

[12]   While it was open to the Judge to make a small adjustment for totality, not doing so could not be described as an error. First, as observed earlier, sentencing is an art. Second, and importantly, the starting point was not out of proportion to the gravity of the overall offending, the point emphasised by the Court of Appeal in both cases above.

Discounts for mitigating features

[13]   The Judge had the benefit of reports from two psychologists in  relation to  Mr Ogle. That of Jim  van  Rensburg  helpfully  summarises  the  key  aspects  of  Mr Ogle’s personal circumstances the Judge considered contributed to the offending:

[63]   … Exposure to a wayward uncle who prematurely introduced him to drugs and who modelled spousal violence. His uncle made a huge impression

16     Ashcroft v R [2014] NZCA 551 at [32] (footnotes omitted).

17     Blackwood v R [2018] NZCA 215 at [36] (footnotes omitted).

on him through grooming him with money and excitement, which fitted well with his needs as a boy who suffered from ADHD. He evidently tried to compensate for the problems he experienced through his ADHD symptoms, by becoming a fearless tackler in rugby matches leading to several brain injuries, as well as being a careless driver which resulted in two serious car accidents, with further brain injuries.

[64]   Otherwise, he had a good and secure upbringing. Through naivety and lack of information, his parents seemed to have missed the fact that he was suffering from ADHD, and seemingly failed to set clearer boundaries for him while growing up.

[14]   Ms Thode contends the discount of 10 percent for this combination was inadequate.

[15]   Discount in this context depends (heavily) on the facts of the case; the strength of the causal connection; and policy considerations, including the seriousness of the offending.18

[16]   I accept Mr Megala’s submission on behalf of the respondent that the level of discount was not in error given (a) “the ongoing offending by the appellant against the victim over an extended period of time and the appellant’s choice in the continued use of substances” and (b) the discretion available to the Judge.

[17]   Ms Thode also contends the discount of 10 percent for remorse and rehabilitative steps was inadequate given the content of the second psychological report by Malcolm Falconer. He describes Mr Ogle as having undergone “transformational change”.

[18]   A similar issue arose in the Supreme Court decision of Berkland v R. That Court said:19

This brings us to the instrumental purposes of sentencing and, in particular, the character references from the two Corrections Officers and a report from the Rimutaka Prison Drug Treatment Unit (DTU). They speak to the fact that Mr Berkland has taken every opportunity offered to him before sentencing and had become a positive role model for his peers in the DTU programme. The references describe him as hardworking, trustworthy and honest, and as someone who is respected by staff. According to one officer, Mr Berkland “is

18     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.

19     At [159]–[161].

a prisoner who I have watched go through stages of change which can be rare but it has been rewarding to see this evolving, he is a prisoner of change.”

This aspect of Mr Berkland’s background is genuinely exceptional and warrants a significant sentencing response despite the gravity of the offending. He appears to have broken the cycle in his own life, and turned to help other inmates do the same in theirs. As the DTU Report suggests, his respected status among the inmates means this help is likely to be impactful. Such leadership can accrue benefits to Mr Berkland in terms of building the self- esteem and resilience his ex-partner considered had been in deficit prior to his incarceration. Equally, the potential social and economic advantages for the inmates whose lives he helps to turn around, and ultimately the benefits for their families and communities, could also be very significant.

Sentencing judges should encourage offenders to take up the opportunities offered by rehabilitative programmes to make the necessary changes in their lives. One way to do this is by providing material sentencing discounts when the evidence suggests that is what an offender is genuinely willing to do. Such encouragement can be an inflection point in the life of a prisoner.

[19]   The Court held a discount of 10 percent was appropriate.

[20]   Berkland is, of course, only an example, albeit one of high authority. The point, however, is that discounts of this nature tend to be modest given the presence of competing sentencing rationales, including denunciation and general deterrence. These rationales have obvious importance to a case involving repeated family violence, especially given the troubling incidence of strangulation in New  Zealand.  I am, therefore, unpersuaded of error; again, bearing in mind the discretion available to the Judge.

[21]   The issue of home detention advanced by Ms Thode does not arise because that sentence may be imposed only if the sentence would otherwise be two years’ imprisonment or less, and the preceding analysis reveals the two-year, five-month sentence as within range. Two further points confirm as much.

[22]   First, Mr Ogle received a 20 percent discount for his pleas of guilty. This discount could have been  a little less as the charges were laid on 13 April 2023;    Mr Ogle did not plead guilty until 31 January 2024 (having intimated guilty pleas earlier that month); and those pleas reflected an arrangement in which other serious charges were abandoned.20 Mr Ogle benefitted from that arrangement.

20     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[23]   Second, Mr Ogle received a 10-month discount for a 10-month period on home detention. Discounts of this nature “commonly range between 30 and 50 percent, and discounts of up to  50  percent  are  not  uncommon”.21  Mr  Ogle’s  discount  was 100 percent, and as the Judge recognised, “generous”.

Compassionate bail

[24]   Mr Ogle received compassionate bail following the imposition of sentence as his mother has terminal cancer. Necessarily, bail must end. That is reflected in the orders below.

Additional material

[25]   Ms Thode offered, without objection, two short letters from Mr Ogle’s parents, and another confirming his mother’s illness. While I have considered all three, none change the analysis.

Result

[26]The appeal is dismissed.

[27]   Mr Ogle’s (compassionate) bail is rescinded. He must surrender to the Whangarei District Court on Wednesday, 14 August 2024 at 9 am.

……………………………..

Downs J

21     Shramka v R, above n 14, at [62].