Ormsby v The Queen

[2017] NZHC 2508

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-000105 [2017] NZHC 2508

BETWEEN

JASON EDWARD ORMSBY

Appellant

AND

THE QUEEN Respondent

Hearing:	11 October 2017
Appearances:	R A Peters for the Appellant C Bernhardt for the Respondent
Judgment:	13 October 2017

JUDGMENT OF NATION J

[1]      The appellant, Mr Ormsby, is now aged 43.  He has spent some 25 out of the last 27 years in prison through an extensive history of criminal offending, largely burglary and receiving stolen property.

[2]      On 24 May 2017, Mr Ormsby was sentenced to imprisonment for five years and nine months, with a minimum term of three years and 10 months.  That sentence was imposed on 10 charges of burglary committed shortly after he had been released from a sentence of five years’ imprisonment.  He appeals against that sentence.

Jurisdiction

[3]      Appeals against sentence are brought under s 244 of the Criminal Procedure

Act 2011 and must be determined in accordance with s 250 of that Act.  Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has

ORMSBY v R [2017] NZHC 2508 [13 October 2017]

been an error in the imposition of the sentence and that, in the event, a different sentence should be imposed.1

[4]      If the sentence under appeal may be properly justified, having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge.  It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion.  As Toogood J said (citing Ripia v R2) in Larkin v Ministry of

Development:3

[26]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

[5]      The focus on most appeals is thus on the end sentence.  In Tutakangahau v R, the Court of Appeal held that:4

…the focus is on the sentence imposed rather than the process by which the sentence  is  reached.  That  encapsulation  of  the  position  will  no  doubt represent the position in the vast majority of cases.

District Court decision

[6]      The Judge noted the burglaries were all of residential homes and referred to one occasion where Mr Ormsby was actually confronted by a person at the house. He considered the value of the property taken was around $15,000 but noted the loss of personal possessions and the harm to those whose homes were burgled could not be measured in just monetary terms.   He had regard to a decision of the Court of

Appeal in R v Rohloff5  as the most helpful in ensuring there was consistency with

other sentences.

[7]      The  Judge  noted  Mr  Ormsby’s  acknowledged  need  for  drug  addiction treatment and to his expressed wish to address the causes of his offending, but

indicated he had to be sceptical as to what might be achieved in that regard, given

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

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

3      Larkin v Ministry of Development [2015] NZHC 680.

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

5      R v Rohloff CA193/03, 24 September 2003.

Mr Ormsby’s failure to take advantage of the opportunity to do this in the past.  The Judge therefore considered that protection of the public had to be a priority with the sentencing.

[8]      The Judge adopted a starting point of seven years’ imprisonment for the offending.  He allowed a discount for guilty pleas of 17.5 per cent, or 15 months, reducing the seven year starting point to five years and nine months’ imprisonment.

[9]      The Judge considered s 86 Sentencing Act 2002.  He considered a minimum term of imprisonment was required to protect the community from Mr Ormsby.  He fixed that minimum term at two thirds of the sentence, thus imposing a minimum period of imprisonment of three years and 10 months.

Leave to appeal

[10]     Mr Ormsby filed his notice of appeal himself.  There was a delay in his doing so, requiring leave to appeal.  The Crown did not oppose this.  Accordingly, leave is granted and I deal with the appeal on the merits.

Appellant’s submissions

[11]     In his notice of appeal, Mr Ormsby said there had been mistakes made by the Crown in identifying aggravating features of the offending.   As to that, it is the aggravating features identified by the sentencing Judge which are important.  In that regard, the Judge referred to the offending involving residential properties, Mr Ormsby’s history of prior offending, the value and nature of property taken and the fact the offending occurred so soon after Mr Ormsby’s release from a sentence of imprisonment.   Understandably, Mr Ormsby’s counsel did not make submissions further advancing this as a ground for appeal.

[12]     In his notice of appeal, Mr Ormsby said he had been assured by his lawyer, who assisted him at his sentencing, that he would receive the maximum credit for guilty pleas.   Whether or not that was so could not affect my assessment as to whether the sentence actually imposed was manifestly excessive.  Mr Ormsby does

not suggest he should not have pleaded guilty.  That ground of his appeal was not pursued in submissions.

[13]     In his notice of appeal, Mr Ormsby said the pre-sentence report was not available at the time of sentencing so all relevant factors relating to his offending were not considered.   The record indicates that it was available.   Understandably, again, this was not further advanced as a ground of appeal in counsel’s submissions.

[14]     Counsel suggested the starting point of seven years was excessive and that, having regard to R v Rohloff,6 a starting point of six years would be appropriate.  He also submitted that the minimum period of imprisonment was too long, especially so when Mr Ormsby was motivated to address his drug dependency, which was a significant causative factor for his criminal offending.   He referred to the way the Department   of   Corrections   allows   prisoners   to   be   involved   in   intensive

rehabilitative-type programmes, such as those dealing with alcohol and drug dependency, only as they approach the time when they might be considered for parole.  He said the practical effect of a longer minimum term of imprisonment is that the potential for Mr Ormsby to be on such a programme would be delayed to a time near the end of the minimum term when he needs to be addressing these issues sooner rather than later.   He submitted a shorter minimum term of imprisonment could have facilitated this, with the Parole Board then being able to see what had been achieved and whether Mr Ormsby’s response to such a programme would ensure the risk for the community had been significantly reduced from what it was at the time he was sentenced.

Analysis

[15]     In Senior v Police,7  a full High Court noted that, in the case of a recidivist burglar,  the  length  of  the  sentence  would  largely  depend  upon  the  number  of previous convictions, the number of offences for which the offender appears for sentence and the presence of aggravating and mitigating factors.  Protection of the

public is a significant factor.  They noted that judges are likely to impose sentences

6      R v Rohloff, above n 5.

7      Senior v Police (2000) 18 CRNZ 340 (CA).

which are more severe than those imposed on the offender on previous appearances for the same offence.8

[16]     In Rohloff, the Court of Appeal referred to these aspects of the High Court’s judgment in Senior, but noted how the Court of Appeal had earlier remarked that recent appellant decisions demonstrate that recidivist burglars “cannot assume that Senior may be relied upon to limit their sentences to three years’ imprisonment”.9

[17]     In Rohloff, the Court of Appeal considered a starting point of six years was appropriate for a 22 year old recidivist burglar who had been offending since 1995, when he was aged 15, had 30 burglary convictions, more than 20 convictions for unlawfully taking or interfering with motor vehicles, 15 convictions for theft from cars and other dishonesty offences associated with burglary or car conversion.  The

Court of Appeal considered that starting point was appropriate:10

… given the appellant’s unrelenting pursuit of a career in burglary since the age of 15 years, alleviated only by periods of incarceration; and also given the nature and number of the current burglaries he embarked upon immediately upon his release from prison and whilst still on parole.

[18]     The Judge had careful regard to Rohloff.   I agree that judgment from the

Court of Appeal justified a starting point of seven years for Mr Ormsby’s offending.

[19]   Mr Ormsby’s offending involved 10 burglaries, all involving residential properties.   In  Rohloff there were nine, including two burglaries of commercial premises, which were said to be opportunistic in nature and not apparently the result of any specific targeting.  Mr Ormsby was significantly older.  His prior offending was significantly more extensive and inevitably over a longer time.   He has 52 previous  convictions  for  burglary  in  the  District  Court  and  13  convictions  for burglary in the Youth Court, compared to Mr Rohloff’s 30 burglary convictions.  Mr Ormsby also has 31 convictions in adult courts for other offences of dishonesty, including 17 counts of receiving, one count of fraudulent use of a document, three counts of theft from a motor vehicle and seven counts of unlawfully taking or

interfering with a motor vehicle.

8 At [28].

9      R v Rohloff, above n 5, at [15], citing R v Southon CA314/02, 13 February 2003 at [13].

[20]     I thus consider the starting point adopted by the sentencing Judge was within range, having regard to the accepted principles and established authority.

[21]     For reasons discussed by the High Court in Senior, and by the Court of Appeal in Rohloff and Southon, it was appropriate for the Judge to focus on the need to protect the community when deciding whether or not to impose a minimum term of imprisonment and in assessing the length of that minimum term.  In that regard, I accept  that  it  is  appropriate  for  a  sentencing  Judge  to  be  conscious  of  how  a minimum term might impact on a prisoner’s ability to engage in programmes which would assist in his addressing the factors likely to put him and members of the public at risk of his further offending when he finishes his sentence of imprisonment.  That will be less important in a situation where there has been a previous opportunity for the offender to address those factors but where he has not taken advantage of that opportunity. That was the background with Mr Ormsby.

[22]     In Rohloff, the sentencing Judge had imposed a final sentence of six years’ imprisonment with a minimum non-parole period of three and a half years’ imprisonment.   In allowing the appeal, the Court of Appeal decided that, in the particular circumstances of the case and because of errors the sentencing Judge had made in assessing the discounts, the appropriate sentence should be four and a half years.  The Court of Appeal said “[a]lthough still relatively young, the appellant has demonstrated by this latest offending that he is a determined career criminal whose

offending has caused anguish to numerous victims”.11   In that regard, they accepted

the Judge’s approach as to the need for a minimum sentence of imprisonment to be correct.  The Court of Appeal imposed a minimum non-parole period of three years’ imprisonment, two thirds of their total sentence.

[23]     Before he was sentenced, Mr Ormsby wrote a letter to the Court.   In that letter, he expressed shame for his offending and the hurt it had caused his victims. He expressed a determination to change and the hope that he might be placed at somewhere like Odyssey House where he could deal with drug addiction issues and further address factors which have caused him to offend so seriously for so long.

[24]     With the sentence that has been imposed, Mr Ormsby must accept that he is going to remain in prison for at least the minimum term.  Nevertheless, a time will come when he has the opportunity to demonstrate whether he is really determined to make the changes he referred to in his letter.  He must still take advantage of that opportunity when he can.  While in prison, Mr Ormsby needs to demonstrate that he is doing all he can to be eligible for the sort of programme with which he wishes to be involved.  He will then need to demonstrate to the Parole Board that he has made fundamental changes which would justify him being granted parole to whatever situation the Parole Board considers will be most appropriate to ensure the public are not at risk of his further offending in the way that has happened so frequently in the past.

[25]     I have not been satisfied there was any error in the sentencing of Mr Ormsby or  that  the  ultimate  sentence  imposed  was  manifestly  unjust.    His  appeal  is dismissed.

Solicitors:

Alpers & Co, Northwest Law Office, Christchurch

Raymond Donnelly & Co., Christchurch.