Ormandy v Police
[2021] NZHC 3298
•3 December 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-409-107
[2021] NZHC 3298
BETWEEN JESSIE ORMANDY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 November 2021 Appearances:
M E Rout for Appellant
J E Lancaster for Respondent
Judgment:
3 December 2021
JUDGMENT OF MANDER J
This judgment was delivered by me on 3 December 2021 at 4 pm pursuant to Rule 11.5 of the High Court Rules 2016
Registrar/Deputy Registrar Date: .
ORMANDY v POLICE [2021] NZHC 3298 [3 December 2021]
[1] Mr Jessie Ormandy was sentenced to a cumulative term of nine months’ imprisonment by Judge Gilbert on one charge of intentional damage that he committed whilst a serving prisoner at Christchurch Prison.1 He appeals that sentence on the basis it was manifestly excessive.
Factual background
[2] On 27 August 2020, Mr Ormandy, together with several other inmates, that included his co-offenders, Messrs Hurrell, Ratahi, Brooking and Jetson, broke out of their prison cells and caused considerable damage. The genesis of this disturbance appears to have been advice received by Mr Hurrell that afternoon that he was going to be moved to a high security unit. He refused to co-operate with Corrections staff and was left in his cell.
[3] The subsequent narrative begins with Mr Brooking breaking off a metal TV bracket and using it to pry open the cell observation window in his cell door. Mr Ormandy, using the same method, did the same. After smashing the observation window, he then ripped up his bedding but was unable to leave his cell.
[4] Mr Brooking, on the other hand, was able to exit his cell and he assisted Mr Ratahi and Mr Hurrell out of their cells. Some two hours later, they also assisted Mr Ormandy to escape from his cell. Once released, Mr Ormandy threw apples at the guardroom, smashed a camera monitor and ripped another camera monitor from its bracket. Mr Jetson was subsequently assisted out of his cell via another damaged door before the group were brought under control by the Corrections Site Emergency Response Team.
[5] Over the period they were out of their cells, the five men caused damage to fittings, fixtures, furniture and other miscellaneous items within the prison unit. Overall, the total cost to repair the damage was estimated at some $160,000, with the damage done to the cell doors being particularly expensive because they cost many thousands of dollars to replace.
1 Police v Ormandy [2021] NZDC 12444; Crimes Act 1961, s 269(2)(a).
District Court sentence
[6] In approaching the sentencing exercise before him, Judge Gilbert had the benefit of having reviewed the sentencing notes in respect of three of Mr Ormandy’s co-offenders. The Judge described the offending as essentially involving a group of young men “behaving like idiots” and showing their defiance within the prison environment by causing a substantial amount of damage. Aggravating factors identified included the custodial environment in which the offending took place and the extent of the damage — the cost of which would not realistically ever be recovered from the offenders.
[7] A starting point of 18 months’ imprisonment was adopted. An uplift of two months was imposed to reflect Mr Ormandy’s extensive previous convictions which included a charge of escaping custody. A full 25 per cent discount was extended for Mr Ormandy’s guilty plea. The Judge also provided additional credit, said to be “in the realm of 15 to 20 per cent”, for matters personal to Mr Ormandy canvassed in the pre-sentence and s 27 cultural reports. These included his difficult upbringing while in State care and the trauma he suffered, for which he is receiving counselling, and Mr Ormandy’s apparent motivation to assist his wife and children when he is released from prison, and to do better in the future despite the obvious risk of re-offending, apparent from his criminal record.
[8] After taking into account the cumulative nature of the sentence to be served in addition to the sentence Mr Ormandy is presently serving and the principle of totality, an overall discount of 55 per cent was extended to arrive at an end sentence of nine months’ imprisonment, which the Judge considered was “broadly consistent” with his co-defendants. Outstanding fines of $3,750 and enforcement fees were also remitted.
Application for leave to appeal out of time
[9] Mr Ormandy’s appeal was filed six days late. However, it appears this delay was caused by ongoing difficulties with correspondence being received by him at Auckland Men’s Prison. The Crown is not prejudiced and does not oppose an extension of time. Leave is therefore granted.
The appeal
[10]Mr Ormandy, in challenging his sentence, relies on three grounds:
(a)the sentence lacks parity with that imposed on Mr Ormandy’s co- defendants;
(b)an uplift for Mr Ormandy’s previous convictions should not have been imposed; and
(c)a greater discount should have been afforded for the personal factors raised in the s 27 cultural report.
I consider each of these grounds in turn.
Starting point
[11] The challenge to the starting point adopted by the District Court raises the issue of parity with Mr Ormandy’s co-defendants. Ms Rout, on behalf of Mr Ormandy, submitted that, while the Judge referred to the need for parity, he failed to properly consider Mr Ormandy’s actual role in the overall offending and that, had he done so, he could not have adopted the starting point he did.
[12] When imposing sentence on multiple defendants involved in the same offending, it is necessary to assess the individual roles of those co-offenders and their level of culpability.2 The principle of parity was articulated by the Court of Appeal in R v Kohey:3
[20] Whilst it is vital for a sentencing Court to strive for parity in sentencing co-offenders (whether sentenced separately or together), parity will not be achieved by a simple measurement against a co-offender's culpability. Parity means treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedent and taking into account any aggravating or mitigating features personal to the offender.
2 Harvey v R [2017] NZCA 171 at [15].
3 R v Kohey (2003) 30 CRNZ 62 (CA).
[13] It is accepted that Mr Brooking was the principal offender. His sentence of 17 months’ imprisonment was imposed after he accepted a sentence indication of a “final sentence” of 21 months’ imprisonment with the possibility of home detention, from which a further four months’ imprisonment was deducted for time spent on EM bail. Judge Gilbert, when sentencing Mr Ratahi, deduced that the indicated 21-month “final sentence” for Mr Brooking must have included deductions for personal mitigating factors and that a starting point of “around about” two and a half years’ imprisonment must have been adopted.4 It was reasonable for the Judge to assume that given Mr Brooking’s sentencing took place in February 2021, he at least must have had the benefit of a full discount of 25 per cent for a guilty plea, and there is nothing to suggest the Judge’s understanding of the approximate sentence starting point for Mr Brooking was incorrect.
[14] The starting point taken in respect of Mr Hurrell was 18 to 20 months’ imprisonment. In respect of Mr Ratahi, a 20 month term of imprisonment was taken as a starting point. Judge Mill, who sentenced Mr Jetson, considered him to be the least culpable offender and adopted a starting point of 12 months’ imprisonment.
[15] In support of her argument, Ms Rout placed considerable emphasis on the fact that Mr Ormandy did not get out of his cell until some two hours after Messrs Brooking, Ratahi and Hurrell had escaped from their cells and had control of the unit. It was therefore submitted that Mr Ormandy should be viewed as being less culpable. However, as the Judge noted, Mr Ormandy had been “acting up” from the very start of the disturbance. He broke the TV bracket in his cell and pried open the observation window at the same time as Mr Brooking, or shortly thereafter. He also damaged furniture and bedding in his cell while the others were outside.
[16] Ms Rout identified an error made by the Judge when sentencing Mr Ratahi, when he referred in his summary of the offending to Mr Ormandy having damaged the sprinkler system outside his cell, causing it to become activated. However, later the same day when he sentenced Mr Ormandy, the Judge did not refer to him having
4 Police v Ratahi [2021] NZDC 7800 at [9].
committed such an act, and it is not apparent that the error was repeated or that he was materially influenced by the erroneous reference made when sentencing Mr Ratahi.
[17] Judge Gilbert was cognisant of the need for parity between the defendants and was well-placed to assess their respective roles, as he sentenced not only Mr Ormandy but also Messrs Ratahi and Hurrell, and had the benefit of the sentencing notes in respect of Messrs Jetson and Brooking, who had already been sentenced. The Judge reminded himself of the need to be consistent “as far as is appropriate with [Mr Ormandy’s] co-defendants” and he expressly had regard to the starting points adopted in respect of his co-defendants. When reviewing the respective submissions of the parties as to the appropriate starting point, Judge Gilbert found that the 36- month starting point suggested by police could not be sustained “in light of the start[ing] points adopted for co-defendants”.
[18] As I have observed, the timing of Mr Ormandy’s escape from his cell is stressed as a reason for viewing him as less culpable than Messrs Hurrell and Ratahi. However, to the extent Mr Ormandy’s involvement could be construed as arguably less than those two co-offenders, I accept the respondent’s submission that this is not to any significant degree. Mr Ormandy was involved almost from the outset and his delayed departure from his cell does not appear to have been the result of any restraint on his part, given the damage to his bedding and the way he joined in the mayhem once gaining access to the wider prison unit. All of this conduct was consistent with his initial actions in damaging his cell door at the same time as Mr Brooking when the disturbance first commenced.
[19] Having regard to Mr Ormandy’s willingness from the outset to damage his cell and join in and be part of the disorder initiated by Mr Brooking, and his overall participation in what unfolded, I do not consider the Judge’s approach to the starting point, which is comparable to, although slightly less than, that adopted in respect of Messrs Hurrell and Ratahi, was unavailable to him.
Uplift for previous convictions
[20] Judge Gilbert applied an uplift of two months for Mr Ormandy’s criminal history, which he described as “very extensive”. Ms Rout submitted this uplift was
inappropriate because his co-offender, Mr Ratahi, did not receive any uplift. However, the Judge explained his approach to this issue in respect of each of these defendants. In respect to Mr Ratahi, the Judge noted:5
You have some previous convictions. Over the last five years you have got a moderately serious history. There is quite a bit of property offending which is broadly relevant but, on a generous view of it, I will not increase your sentence because of your prior history. There is no intentional damage type charges in it and I am conscious, ultimately, of not imposing a sentence which is too crushing on you.
[21]In relation to Mr Ormandy, the Judge noted that his criminal history:6
… includes recently a charge of escaping from custody and whilst you did not escape from custody in the sense of leaving the prison grounds on this occasion, you certainly escaped from your cell.
[22] Previous relevant convictions relate to the assessment of whether there is the need for a greater deterrent response.7 In assessing the appropriateness of imposing an uplift for these offenders’ prior convictions, the Judge clearly had regard to their relevance. Mr Ormandy had numerous previous convictions but, importantly, they included a relatively recent charge of escaping from police custody. This conviction was relevant to Mr Ormandy’s prior criminal conduct while in custody, and that his present offending had involved him breaking out of his cell.
[23] It is noted that Mr Hurrell also received an uplift for his prior convictions, so it is not a case of Mr Ormandy being unfairly singled out. Ultimately, the appropriateness of recognising an offender’s criminal history will vary depending upon the nature of the offending and the relevance of an individual’s previous convictions. The two-month uplift was justifiable in the circumstances.
Discount for personal circumstances
[24] The sentencing Court was provided with a comprehensive cultural report that superseded an earlier report prepared for Mr Ormandy that was considered to be incomplete. Ms Rout submitted that the Judge’s approach to the matters raised in that
5 Police v Ratahi, above n 4, at [12].
6 Police v Ormandy, above n 1, at [7].
7 Reedy v Police [2015] NZHC 1069 at [19].
material regarding Mr Ormandy’s marginalised and dysfunctional upbringing resulted in an inadequate level of discount. In particular, it was argued the Judge’s observation that the link between Mr Ormandy’s personal background and his present offending was “tenuous” had resulted in insufficient credit being afforded to him. It was suggested that a 30 per cent discount was warranted.
[25] Judge Gilbert noted his concern with some apparent inconsistencies in the details provided in the two reports. However, he accepted “the thrust” of the information that had been put before him regarding Mr Ormandy’s deprived upbringing, and that he had faced “challenges that no child should have to face”.8 Importantly, the Judge accepted that Mr Ormandy had been abused in State care from a relatively young age and that this was “no doubt a significant contributor” to his offending that had led him to being imprisoned.9 The Judge expressed some reservation about whether there was a direct link to what had specifically occurred on this occasion, but he recognised the relevance of Mr Ormandy’s difficult past circumstances to him being incarcerated in the first place.
[26] Ms Rout sought to rely upon the approach taken by Whata J in Solicitor- General v Heta, where a 30 per cent discount was extended for matters of systemic social and cultural deprivation that had impacted on an offender’s personal circumstances, and that could be linked to the offending and the person’s moral culpability.10 It is not disputed that similar considerations arise in Mr Ormandy’s case, but the level of discount to be applied will vary depending on the individual assessment of a defendant’s past, their particular circumstances, and the nature of their offending. In Poi v R, the Court of Appeal allowed a 20 per cent discount for a combination of severe deprivation and disadvantage, combined with the offender’s rehabilitative prospects and the steps he had already taken to address the impact of his prior offending.11 Whereas in Biddle v R, the same Court considered that personal background factors detailed in a s 27 report that had led the appellant to become
8 Police v Ormandy, above n 1, at [14].
9 At [12].
10 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [63].
11 Poi v R [2020] NZCA 312 at [39].
involved in criminal offending, together with rehabilitative prospects, was appropriately reflected in a 12 per cent credit.12
[27] Judge Gilbert described the discount he was willing to provide for personal mitigating factors as being in the realm of 15 to 20 per cent. However, after taking into account the 25 per cent reduction for the guilty plea and having regard to considerations of totality, it is apparent that in arriving at the final sentence of nine months’ imprisonment, the Judge must have extended a discount approaching 30 per cent for the factors raised in the cultural reports. It is apparent that, whatever reservations the Judge may have had regarding the accuracy of certain details in the reports and his observations regarding whether there was a direct nexus between this particular offending and Mr Ormandy’s background, it cannot realistically be concluded that the Judge failed to adequately recognise Mr Ormandy’s personal history.
[28] Discounts of 15 per cent are frequently granted for such factors as social, cultural, and economic deprivation where such circumstances can be linked with the offending or are considered relevant to the assessment of culpability.13 I accept Ms Rout’s submission that Mr Ormandy’s experiences as a young person and the trauma he suffered while in State care potentially forms part of his adverse reaction to prison authority. However, having regard to the end result of this part of the sentencing exercise, I consider the level of credit applied was well within the reasonable range available to the Judge and that no error arises. It follows that this ground of appeal must also fail.
Result
[29]The appeal is dismissed.
Solicitors:
Prime Legal Limited, Christchurch Crown Solicitor, Christchurch
12 Biddle v R [2021] NZCA 57.
13 Gray v R [2020] NZCA at [29], citing Woodstock v R [2020] NZCA 472 at [35]; Carr v R [2020] NZCA 357 at [57]; Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [70]; and Minogue v R [2020] NZCA 515 at [47].
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