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…

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 The Queen

Details

AGLC: Ormsby v The Queen [2017] NZHC 2508
Case: [2017] NZHC 2508
Decision Date: 13 October 2017

CaseChat Overview and Summary

In this case, the appellant, Mr. Jason Edward Ormsby, appeals against his sentence of five years and nine months imprisonment, with a minimum term of three years and ten months, imposed for ten charges of burglary committed shortly after his release from a five-year imprisonment sentence. The appeal is brought under section 244 of the Criminal Procedure Act 2011, and the High Court must determine whether the sentence is manifestly excessive and if a different sentence should be imposed. The appellant argues that the starting point of seven years was excessive, and the minimum term of imprisonment was too long, especially given his motivation to address his drug dependency, which was a significant causative factor for his criminal offending.

The Court examined the appellant's extensive criminal history, which includes 52 convictions for burglary in the District Court and 13 convictions for burglary in the Youth Court, as well as 31 convictions for other offences of dishonesty. The Court considered the principles established in Senior v Police, and the Court of Appeal's judgment in Rohloff, which justified a starting point of seven years for the appellant's offending. The Court also considered the need to protect the community when deciding whether to impose a minimum term of imprisonment and assessing the length of that minimum term.

The Court held that the starting point adopted by the sentencing Judge was within range, having regard to the accepted principles and established authority. The Court found that 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. The Court concluded that there was no error in the sentencing of Mr. Ormsby and that the ultimate sentence imposed was not manifestly unjust. Therefore, the appellant's appeal is dismissed.

This case highlights the importance of considering the offender's criminal history, the nature and number of the current burglaries, and the need to protect the community when imposing a sentence for a recidivist burglar. The Court must ensure that the sentence is within the range that can properly be justified by accepted sentencing principles, and only intervene if the sentence is manifestly excessive.

Orders