Olsen v The King

[2023] NZHC 2967

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-57

[2023] NZHC 2967

BETWEEN

BENJAMIN DYLAN OLSEN

Appellant

AND

THE KING

Respondent

Hearing:	16 October 2023
Appearances:	S Saunderson-Warner for the Appellant C E R Power for the Respondent
Judgment:	24 October 2023

JUDGMENT OF HARLAND J

Introduction

[1]                 Benjamin Olsen was sentenced in the District Court1 on 25 May 2023 to 26 months’ imprisonment in relation to charges of failure to carry out computer search obligations (x 2),2 theft (over $1,000),3 burglary (x 2),4 breach of community work,5 unlawful possession of a pistol6 and unlawful possession of ammunition.7

[2]                 Mr Olsen appeals this sentence in three respects; first he submits there was an excessive uplift for the Arms Act charges, second, a failure to give credit for restorative justice and, lastly, a failure to assess the overall sentence imposed for totality.

1      New Zealand Police v Olsen [2023] NZDC 10547.

2      Search and Surveillance Act 2012, s 178; maximum penalty 3 months’ imprisonment.

3      Crimes Act 1961, ss 219 and 223(b); maximum penalty 7 years’ imprisonment.

4      Crimes Act, s 231(1)(a); maximum penalty 10 years’ imprisonment.

5      Sentencing Act 2002, s 71; maximum penalty 3 months’ imprisonment or a $1,000 fine.

6      Arms Act 1983, s 45(1); maximum penalty 4 years’ imprisonment and/or a $5,000 fine.

7      Arms Act, s 54(2); maximum penalty 5 years’ imprisonment.

OLSEN v R [2023] NZHC 2967 [24 October 2023]

The offending

[3]                 On 16 July 2021, Mr Olsen was sentenced to 250 hours community work in respect of two driving while disqualified (3rd or subsequent) charges. While he completed a substantial amount of this sentence, he failed to report for work on several occasions with most of the sentence outstanding.

[4]                 The two burglary charges arise from offending that occurred between late on 23 August and early on 24 August 2022. Mr Olsen entered two different residential properties and removed trailers, attaching them to his vehicle and driving away.

[5]                 Sometime in early September 2022 and while on bail, Mr Olsen drove past an address in Balclutha and saw a trailer there. Using bolt cutters, he cut a chain securing the trailer to a tree before attaching it to his vehicle and driving away.

[6]                 At about 11 pm on Friday 9 September 2022, Mr Olsen left his motor vehicle parked in a rest area north of Balclutha. The Police attended and observed the registration plate off the stolen trailer in the rear of the vehicle.

[7]                 On 14 September 2022, a search warrant was executed at the defendant’s then address. Two phones were seized, but Mr Olsen refused to provide the passcodes. The suggestion is that the details of the phones may have contained information relevant to suspected drug dealing. A search warrant was executive on Mr Olsen’s vehicle. Located and seized from inside the vehicle were a pair of bolt cutters. Mr Olsen denied the offending and claimed he had found the registration plate off the stolen trailer at the side of the road.

[8]                 On 20 January 2023, search warrants were executed at Mr Olsen’s address on a vehicle parked on the road in Corstorphine, Dunedin. A backpack was located in a bedroom at the address containing a loaded Ruger .22 semi-automatic pistol and more than 100 rounds of ammunition. Mr Olsen refused to provide the passcode to his cell phone when asked. Mr Olsen claimed the bag did not belong to him and he had no knowledge of its contents. He denied possession of the pistol or ammunition, stating that he thought he had previously seen that bag in the possession of another person.

[9]                 For the offending in September and thereafter, this occurred while Mr Olsen was on bail. He had been granted bail in relation to the two burglary charges when he first appeared in relation to them on 20 September 2022. Due to various breaches of bail conditions, he was remanded in custody on 21 January 2023.

District Court Decision

[10]              Judge Smith took the dishonesty offending as the lead charges. She considered the burglary offending was aggravated by the fact that they involved the targeted, premeditated taking of trailers from residential properties in the early hours of the morning. There was significant loss of property. A starting point of 18 months was adopted for the burglaries with an uplift of six months for the theft charge, which also involved premeditation and significant loss. Mr Olsen does not challenge the way these charges were dealt with by the Judge.

[11]              The Judge noted the seriousness of the Arms Act offending, namely that it involved keeping an unsecured, loaded gun under a bed in a residential home, particularly in circumstances where there was a suggestion of some kind of drug involvement, although she was careful not to sentence on this basis. The amount of ammunition found during the search was also considered to be an aggravating feature of this offending. A 15-month uplift was adopted for the unlawful possession of the pistol, with a concurrent uplift of 12 months’ imprisonment for the ammunition charge.

[12]              An uplift of one month was applied for the breach of community work, and Mr Olsen was convicted and discharged on the computer matters.

[13]              This led to a global starting point of 40 months’ imprisonment, which the Judge then uplifted by a further one month to take into account that much of the offending occurred when Mr Olsen was on bail.

[14]              The Judge then applied a full 25 per cent discount for Mr Olsen’s guilty pleas. There was a suggestion that the offending was connected to a self-reported drug addiction. The Judge allowed a 10 per cent discount for this.

[15]              The Judge acknowledged Mr Olsen had engaged in restorative justice with the victim whose trailer he had cut away from the tree it was secured to, and was due a credit for this effort, but no credit was applied.

[16]Rounded down, the end sentence was one of 26 months’ imprisonment.

Discussion

[17]              Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.8 As the Court of Appeal identified in Tutakangahau v R (quoting the lower court’s decision), a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.9 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.10

Was the uplift for the Arms Act offending excessive?

[18]              Ms Saunderson-Warner, for Mr Olsen, submitted the uplift provided for the Arms Act charges was excessive and that a six month uplift was appropriate. She referred to Tuuta v R, where the appellant had been stopped driving and was found in possession of approximately 16g of methamphetamine, thousands of dollars in cash, a sawn-off shotgun and ammunition.11 The six month uplift for the Arms Act offending was upheld on appeal.

[19]              Ms Saunderson-Warner also referred to Harris v R,12 where a six month uplift for possession of a pistol was imposed. She highlighted that, in Harris, the Court of Appeal compared Mr Harris’ offending to the offending in Mills v R,13 where the Court of Appeal had observed that uplifts of 12 to 18 months for firearms offending associated with drug dealing were typically imposed, but it depended on the

8      Criminal Procedure Act 2011, ss 250(2) and 250(3).

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

10     Ripia v R [2011] NZCA 101 at [15].

11     Tuuta v R [2019] NZHC 2788.

12     Harris v R [2021] NZCA 143 at [19].

13     Mills v R [2016] NZCA 245 at [18].

circumstances and there were a number of cases where six month uplifts were imposed as well.

[20]              Mr Power for the Crown submitted a possible connection with drug offending, the large amount of ammunition, and the fact the pistol was loaded would justify a starting point of 18 months or even a two year uplift for the Arms Act offending in this case.

[21]              The Court of Appeal has recently observed that, where firearms offending is taken as the lead offence, starting points of between two and three years are frequently adopted for the unlawful possession of a single firearm.14 But, as outlined above, the Court of Appeal has also observed, when such offending is recognised by way of an uplift and sits alongside drug dealing offending, uplifts of between 12 to 18 months are appropriate.15 The firearms in Mills were both loaded and unsecured, but they were treated as an aggravating factor in relation to the methamphetamine charge. It was therefore important not to double count this by way of an uplift. All of this highlights the obvious that each case will depend on its own facts.

[22]              The aggravating features of the Arms Act offending in this case include the fact that the pistol was loaded and unsecured. As well, a large amount of ammunition was found with the pistol. The fact the gun was found at a residential address is not in itself aggravating, but the lack of securing the weapon is. However, I agree with Ms Saunderson-Warner that the connection to drug dealing in this case is not clear but, importantly, the Judge did not sentence Mr Olsen on the basis of any involvement in drug dealing.16

[23]              Although Mr Olsen has tried to distance himself from the ownership of the gun and ammunition, but the fact of the matter is that he pleaded guilty to these charges. Accordingly, the time to have challenged this was not at sentence but at plea.

[24]              In my view, the 15 month uplift was stern but it cannot be said to be out of range. This is because of the matters I have referred to above. I conclude that the

14     Campbell v R [2022] NZCA 579.

15     Mills v R, above n 13, at [18].

16 At [13].

facts of this case make it distinguishable from those in Tuuta and Mills. I decline to interfere with the uplift adopted by the Judge.

Was totality appropriately taken into account?

[25]              Mr Olsen’s next ground of appeal is that the Judge failed to undertake a totality assessment. Ms Saunderson-Warner submitted that the global starting point should have been lower, around 31 months.

[26]              Mr Power submitted there is no scope to criticise totality because the uplifts applied by the Judge for Mr Olsen’s other offending and his offending while on bail were particularly generous. I am not persuaded by this argument. The uplifts were within range and appropriate.

[27]              The appropriateness of the totality of a starting point is very much a matter of judgment. Even though it would have been preferable for the Judge to refer to totality, what I need to assess is whether I can infer that she did, even if she expressly did not refer to it by the way the starting point and uplifts were applied.

[28]              Standing back, a case can be made that a further small deduction could have been applied to reflect totality. But, given that these were separate incidents of offending over a period of time and there was a clear need for personal deterrence and denunciation, as well as arguably a need to protect the community, I am not persuaded that the Judge was wrong to exercise her discretion not to provide a deduction for totality. It follows I do not agree with Ms Saunderson-Warner that the global starting point ought to have been around 31 months or, indeed, any lower than that.

Should an additional credit be applied for restorative justice?

[29]              Finally, Ms Saunderson-Warner seeks a greater credit to reflect Mr Olsen’s constructive engagement in restorative justice, in which he offered reparation in excess of the loss suffered to recognise the emotional harm caused and where the victim accepted his apology as genuine. The Judge acknowledged that Mr Olsen was due a credit for this,17 but did not apply one.

17 At [18].

[30]              I accept that Mr Olsen’s engagement with restorative justice was worthy of a discount. Remorse and reparation were offered, and the reparation offered went beyond the value of the property stolen. However, restorative justice only occurred in relation to the one charge of theft and not in respect of any of the remainder of the offending.

[31]              No reparation has in fact been paid but this is not surprising given that Mr Olsen is serving a sentence of imprisonment. For this reason, however, a cautious approach, in my view, ought to be taken to the level of discount applied to reflect the offer of reparation. Having said that, the restorative justice conference was very successful and resulted in Mr Olsen taking responsibility for his offending against that victim and being accountable for that offending. However, it does impact on the level of discount I consider appropriate. In my view, a discount of five per cent was justified.

Was the end sentence manifestly excessive?

[32]              Ultimately, the question is whether the end sentence is manifestly excessive.18 I have declined to interfere with the end starting point of 41 months’ imprisonment. I have outlined that I consider a five per cent discount would have been appropriate for restorative justice. This would have taken the allowable mitigation credit to 40 per cent as opposed to 35 per cent. The end result, rounded up to favour Mr Olsen, would therefore have meant a deduction of 17 months. This would have resulted in an end sentence of 24 months’ imprisonment as opposed to the end sentence of 26 months’ imprisonment in respect of the burglary charges.

[33]              The question, as to whether the end outcome I have reached makes the sentence manifestly excessive, is finely balanced. By a narrow margin, I have decided that it is.

[34]              The PAC reports had recommended intensive supervision, reparation, the potential of an electronically monitored sentence should an address become available, community work, supervision or, as a final option, imprisonment with release on special conditions. It appears that the last significant sentence received by Mr Olsen

18     Tutakangahau v R, above n 9, at [36].

was one of home detention. There is no suggestion that he did not comply with this sentence.

[35]              The end sentence reached by the Judge did not take him within the realms of being able to undertake a non-custodial sentence. The Judge noted that this was a short term of imprisonment and addressed the question of home detention. Given the end position she had reached, this was not an option but she did note that no sentence less than home detention would meet the principles and purposes of sentencing having regard to what she described as Mr Olsen’s serious offending. Nonetheless, home detention would have been an option had an address been available and arguably could have been the least restrictive outcome appropriate in the circumstances.

[36]              In light of these matters, I am persuaded, by a narrow margin, to allow the appeal and to reduce the sentence of imprisonment imposed to one of 24 months. Mr Olsen does not seek conversion to home detention so I am not asked to consider leave under s 80I of the Act. I would have granted leave had it been sought. Despite this, a reduction of his end sentence by two months will make a difference to Mr Olsen who may otherwise have been eligible for home detention.

Result

[37]The appeal is allowed in part.

[38]              The sentence of 26 months’ imprisonment imposed in respect of the burglary charges is quashed and replaced by a sentence of 24 months’ imprisonment. The remainder of the sentence imposed by the Judge, as outlined in paras [30](b)-(g) and

[33] remain extant.

Harland J

Solicitors:

S Saunderson-Warner, Barrister, Dunedin Crown Solicitor, Dunedin.