Otter v The Queen
[2017] NZCA 334
•11 August 2017 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA67/2016 [2017] NZCA 334 |
| BETWEEN | DAVID ROSS OTTER |
| AND | THE QUEEN |
| Hearing: | 24 July 2017 |
Court: | Gilbert, Brewer and Peters JJ |
Counsel: | C J Tennet for Appellant |
Judgment: | 11 August 2017 at 2.30 pm |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
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REASONS OF THE COURT
(Given by Gilbert J)
Introduction
Following a trial by jury in the Napier District Court, David Otter was found guilty of attempting to pervert the course of justice, kidnapping and assault with a weapon (a stun gun). He was sentenced by Judge Rea to four and a half years’ imprisonment and directed to serve a minimum period of imprisonment of two years and seven months.[1]
[1]R v Otter [2016] NZDC 877.
Mr Otter appeals against his sentence, contending that it was manifestly excessive. In particular, he argues that:
(a)the starting point adopted was too high;
(b)there should have been no uplift for his previous convictions; and
(c)there is an unjustified disparity between the sentence he received and those imposed on his co-offenders.
Facts
Mr Otter’s offending arose out of assistance he provided to an associate, Depak Hanara, who was in prison on remand facing charges of threatening to cause grievous bodily harm to Caleb Clare, aggravated burglary and possession of an offensive weapon. Mr Otter’s role was to pressure Mr Clare into providing false evidence to assist Mr Hanara to obtain bail and escape conviction.
After initial attempts failed to achieve the desired response, Mr Otter decided to apply more pressure to Mr Clare. Accordingly, he invited Mr Clare to come to his address on the pretext of supplying him with cannabis. When Mr Clare arrived, he found that Mr Otter had arranged for another associate, Teariki Tamoe, to be present with stun guns. Mr Otter intended that Mr Tamoe would use these on Mr Clare. Mr Otter was present while Mr Tamoe attacked Mr Clare with one of these stun guns and administered over 30 electric shocks to his legs, back and neck. Shortly after this, Mr Otter went to Mr Clare’s address and told him that he could not prevent this from happening again if Mr Clare did not cooperate in helping get Mr Hanara released from prison. Mr Clare subsequently signed the false written statement Mr Hanara had prepared for him. He did this because he feared that he would otherwise be killed.
Starting point too high?
The Judge adopted a starting point of four years’ imprisonment for the totality of this offending.
Mr Tennet submits that the overall starting point should have been no higher than three years and six months’ imprisonment. He argues that a starting point of three years’ imprisonment would have been sufficient to recognise Mr Otter’s part in the kidnapping and assault with a weapon. He contends that an uplift of four to six months’ imprisonment would have been sufficient to reflect Mr Otter’s participation with Mr Hanara in attempting to pervert the course of justice.
Mr Barr submits that the overall starting point was generous and should have been considerably higher.
As this Court observed in Miller v R, denunciation and deterrence are prominent sentencing purposes in cases involving attempts to pervert the course of justice.[2] Kidnapping and assault with a weapon are also serious offences requiring a commensurate sentencing response.
[2]Miller v R [2014] NZCA 382 at [11].
Mr Otter’s offending can only be regarded as serious. He was described by the Judge as “the one driving the efforts on the outside” while Mr Hanara directed what he wanted to happen from inside prison.[3] Mr Otter’s efforts to pressure Mr Clare to give false evidence persisted over a period of approximately two months and ultimately involved serious violence. Mr Otter secured Mr Clare’s presence at his house on false pretences, having arranged for Mr Tamoe to be present for the purpose of assaulting Mr Clare with the stun guns. Mr Otter orchestrated the entire event and remained present throughout the sustained and brutal attack on Mr Clare that followed. A short time after this attack occurred, Mr Otter went to Mr Clare’s address and told him that he would not be able to stop anything like this happening again if he did not cooperate in getting Mr Hanara out of prison. Fearing even more serious repercussions if he did not capitulate, Mr Clare went to the Napier District Court and signed in front of a registrar the completely false statement that Mr Hanara had drafted.
[3]R v Otter, above n 1, at [5].
Having regard to Mr Otter’s central role, the sustained and serious nature of the offending and the level of violence involved, we are satisfied that the starting point of four years’ imprisonment was well within range. We agree with Mr Barr that a higher starting point could have been justified but this is offset by the minimum period of imprisonment imposed. This ground of appeal fails.
Was the uplift for previous convictions justified?
The Judge imposed an uplift of six months’ imprisonment to reflect Mr Otter’s previous convictions. Mr Tennet submits that an uplift of no more than two months’ imprisonment could be justified.
We agree with Mr Barr that the uplift was unremarkable given Mr Otter’s previous convictions which include assault with a weapon (2015), male assaults female (2010), five for common assault (2015, 2013, 1991 x 2, and 1989), eight for contravening a protection order (2015, and 2011 x 7) and two for unlawful possession of a firearm (2011 and 2002). This ground of appeal also fails.
Unjustified disparity?
The co-offenders were tried together and Judge Rea sentenced all three.
Mr Hanara was sentenced to six years and six months’ imprisonment for two charges of attempting to pervert the course of justice, one of aggravated burglary, one of possession of an offensive weapon and one of threatening to cause grievous bodily harm.[4]
[4]R v Hanara [2016] NZDC 669.
Mr Tamoe was sentenced to three years, six months’ imprisonment for his part in the kidnapping and assault with a weapon. The Judge adopted a starting point of three years’ imprisonment and applied an uplift of six months for Mr Tamoe’s previous convictions.[5]
[5]R v Tamoe [2016] NZDC 650.
Mr Tennet submits that the disparity is unjustified, particularly having regard to the sentence imposed on Mr Tamoe.
We do not accept this submission, for the reasons the Judge gave. Mr Otter’s involvement was sustained over a much longer period and he orchestrated the kidnapping and the assault with the stun guns. As the Judge put it, Mr Tamoe’s role was confined to supplying the “muscle”. It is particularly significant that, unlike Mr Otter, Mr Tamoe was not convicted of attempting to pervert the course of justice. This alone is sufficient to explain the differential in the starting points adopted for Mr Tamoe and Mr Otter.
It is difficult to draw any direct comparison between the respective sentences imposed on Mr Hanara and Mr Otter. Mr Hanara was not charged with kidnapping or assault with a weapon. On the other hand, Mr Hanara was convicted of aggravated burglary and possession of an offensive weapon. He was also convicted of an additional charge of attempting to pervert the course of justice and a charge of threatening to cause grievous bodily harm. Having presided over the trial, the experienced Judge was in the best position to make the assessment of relative culpability. We are not persuaded that he made any error in making this assessment.
This ground of appeal also fails.
Conclusion
The end sentence of four years and six months’ imprisonment for Mr Otter’s role in attempting to pervert the course of justice, kidnapping and assault with a weapon was well within the range of the Judge’s sentencing discretion. Indeed, a higher sentence could have been justified. We are not persuaded that the minimum period of imprisonment imposed was unjustified in all of the circumstances. There is no basis on which we could interfere with the sentence.
Result
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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