Ormsby v R - [2014] NZCA 73

IN THE COURT OF APPEAL OF NEW ZEALAND

CA504/2013
[2014] NZCA 73

BETWEEN	GEORGE NGATAI ORMSBY Appellant
AND	THE QUEEN Respondent

Hearing:	12 March 2014
Court:	Wild, Goddard and Clifford JJ
Counsel:	G A Walsh for Appellant M H Cooke for Respondent
Judgment:	18 March 2014 at 10 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of two years eight months imprisonment imposed by the District Court is quashed.
CA sentence of two years imprisonment is substituted.

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REASONS OF THE COURT

(Given by Wild J)

Introduction

On the ground that it is manifestly excessive, Mr Ormsby appeals against a sentence of two years and eight months imprisonment.[1] The sentence was imposed by Judge Tompkins in the Hamilton District Court on 19 July 2013, after Mr Ormsby pleaded guilty to a charge of injuring with intent to disfigure.
[1]R v Ormsby DC Hamilton CRI-2012-019-4076, 19 July 2013.
The two submissions on appeal are that the Judge’s sentencing starting point of three years imprisonment was too high, and the discount of 10 per cent the Judge allowed for a guilty plea too low.

Facts

Mr Ormsby had for some time been in a domestic relationship with the complainant. The couple had two children. The relationship had not been a smooth one. Mr Walsh described it as of the “on and off type”. When the offence occurred the couple were living apart.
Mr Ormsby went to the complainant’s home. The Crown says he had been invited for dinner. Mr Ormsby says he went there to mind the children while the complainant was out. In any event the couple began drinking and then arguing. This woke the children who were asleep in the lounge.
The complainant pushed Mr Ormsby out the back door. Both she and Mr Ormsby fell to the ground, the complainant ending up underneath. As she tried to get away Mr Ormsby bit off a portion of her left earlobe. He then spat the piece of earlobe onto the ground.
When the children came outside Mr Ormsby initially stopped them and the complainant from going back inside, but eventually the complainant was able to go in and call the police. Mr Ormsby admitted to the police that he had bitten off part of the complainant’s earlobe.
The complainant was in hospital for two days. An attempt to reattach the bitten off piece of the earlobe failed. The complainant is left with a disfigured earlobe.

Starting point too high

The Judge’s sentencing starting point was three years imprisonment. It appears he accepted the Crown’s submission that the offending fell within the upper part of the second band in this Court’s “guideline” judgment in Nuku v R:[2]
Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.
[2]Nuku v R [2012] NZCA 584 at [38]. In [37] this Court observed “We see this…

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 Ormsby v R

Details

AGLC: Ormsby v R [2014] NZCA 73
Case: [2014] NZCA 73
Decision Date: 18 March 2014 at 10 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, George Ngatai Ormsby, appealed against the sentence of two years and eight months imprisonment imposed by the District Court on 19 July 2013, after he pleaded guilty to a charge of injuring with intent to disfigure. The appeal was heard on 12 March 2014 by Wild, Goddard and Clifford JJ, and judgment was given on 18 March 2014. The main legal issues were whether the sentencing starting point of three years imprisonment was too high and whether the discount of 10 per cent the Judge allowed for a guilty plea was too low. The court found that the starting point was too high, and the discount for the guilty plea was too low. The court substituted a sentence of two years imprisonment.

The court found that the sentencing starting point of three years imprisonment was excessive because the Judge had accepted the Crown's submission that the offending fell within the upper part of the second band in Nuku v R. The court found that there were only two matters contributing to the seriousness of the offending: the level of and seriousness of the actual violence used and the offending in the home. The court considered that the appropriate sentencing starting point was two and a half years imprisonment. The court also found that the discount for the guilty plea was too low. The Judge had considered that a reduced discount of 10 per cent was appropriate because the plea was only entered on the morning of what was to be a reserve trial date. However, the court found that the full 25 per cent discount sanctioned by the Supreme Court in Hessell v R should have been allowed. The court considered that the appropriate discount was 20 per cent. If a 20 per cent discount is applied to the two and a half years starting point, the result is a sentence of two years imprisonment.

Orders