Otter v The Queen - [2017] NZCA 334

IN THE COURT OF APPEAL OF NEW ZEALAND

CA67/2016
[2017] NZCA 334

BETWEEN	DAVID ROSS OTTER Appellant
AND	THE QUEEN Respondent

Hearing:	24 July 2017
Court:	Gilbert, Brewer and Peters JJ
Counsel:	C J Tennet for Appellant S K Barr for Respondent
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…

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 Otter v The Queen

Details

AGLC: Otter v The Queen [2017] NZCA 334
Case: [2017] NZCA 334
Decision Date: 11 August 2017 at 2.30 pm

CaseChat Overview and Summary

David Ross Otter, the appellant, was found guilty of attempting to pervert the course of justice, kidnapping, and assault with a weapon. He was sentenced to four and a half years’ imprisonment and ordered to serve a minimum of two years and seven months. Mr Otter appealed the sentence, contending it was excessive. The appeal was dismissed by the Court of Appeal of New Zealand. The court considered three arguments made by Mr Otter, namely that the starting point adopted was too high, there should have been no uplift for his previous convictions, and there was an unjustified disparity between the sentence he received and those imposed on his co-offenders. The court rejected all three arguments. The starting point of four years’ imprisonment was appropriate, given the seriousness of the offending. The uplift for previous convictions was also justified. There was no unjustified disparity between the sentences of Mr Otter and his co-offenders, as their roles and involvement in the offending were different. The appeal against sentence was dismissed.

Orders