R v Dehar
[2021] NZHC 3504
•16 December 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-063-2105
[2021] NZHC 3504
THE QUEEN v
ANGELA DEHAR
Hearing: 16 December 2021 Appearances:
A McConachy and S J Bird for Crown P McGuire for Defendant
Judgment:
16 December 2021
SENTENCING REMARKS OF LANG J
Solicitors:
Crown Solicitor, Rotorua
R v DEHAR [2021] NZHC 3504 [16 December 2021]
[1] Ms Dehar, at 49 years of age, you appear for sentence having pleaded guilty to charges of wounding with intent to cause grievous bodily harm, one charge of kidnapping and one charge of participating in organised criminal group. The Crown offers no evidence on the remaining charges and I now make an order under s 147 of the Criminal Procedure Act 2011 discharging you on those charges.
[2] You entered your guilty pleas after I gave you a sentence indication on 14 October 2021.1 At that time you also faced the charges on which I have just discharged you. The sentence indication remains unchanged, however, because counsel agree that I should still sentence you on the basis of the summary of facts used for the sentence indication hearing.
The facts
[3] Your offending occurred because you became involved in the latter part of a series of events organised by a woman by the name of Ms Rickylee Dixon. She was of the view that the female victim had stolen methamphetamine from her. She therefore set about making a series of arrangements by which she hoped to obtain either recompense or restitution for that fact. In essence this involved kidnapping the victim on two separate occasions, the administration of a severe beating on each and the extortion of sums of money from her father in order to ensure her release.
[4] The victim was kidnapped on 21 October 2020. It is common ground that you were not party to that incident. Your liability arose because you were present in a motel in Rotorua when the victim was severely beaten on the morning of 22 October 2020. During this incident several persons, including Ms Rickylee Dixon and her daughter Daisy, bound and gagged the victim and then struck her on numerous occasions to the head and body using a variety of instruments. These included a baseball bat, gardening shears and a tomahawk. At one stage several members of the group took the victim into a bedroom and continued the beating there.
[5] You were not physically involved in these assaults. Your culpability lies in the fact that you were prepared to guard the doorway of the motel unit to ensure the victim
1 R v Ohlson & Dehar [2021] NZHC 2748.
did not escape. On one occasion, when she went to try to move through the doorway, you wagged your finger at her and said words to the effect of “No”. You also wedged the door shut with your foot. In doing so you prevented the victim from escaping from the unit. In that sense you actively assisted with what was going on, but your role was obviously very different from those who carried out the physical assaults.
[6] When the violence concluded you provided assistance to those who placed the victim in the rear tray of a utility vehicle that had been brought to the unit by one of the persons in the group. You were shaking rugs in the vicinity to disguise the fact that the victim was being placed on the tray of the vehicle. You were also the driver of the vehicle when it drove away from the motel complex with the victim hidden in the back. This occurred at about the same time as the police arrived. You then returned to the unit once the police had left, but you did not participate in the efforts that were undertaken at that point to clean the unit up.
[7] Your culpability in this incident led me to select a starting point of four years six months imprisonment.
Aggravating factors
[8] You have previous convictions for offending involving violence but these are historic and the Crown did not seek an uplift to reflect them. I therefore applied no uplift to reflect aggravating factors personal to you.
Mitigating factors
[9] The only mitigating factor for which I was prepared to apply a discount at the sentence indication stage was in relation to guilty pleas. I said I would apply a discount of 20 per cent, or 11 months, to reflect that factor. This reduced the sentence to one of three years seven months imprisonment before taking into account any other mitigating factors.
[10] I have now received a detailed report tendered to me by your counsel under s 27 of the Sentencing Act 2002. In many ways this is a mirror image of those tendered earlier today by other persons who participated directly in the assaults on the victim.
The report shows that you had an extremely disadvantaged upbringing. Your family were close associates of the Mongrel Mob gang and the gang ruled every aspect associated with it. Your co-offenders were associated with the Black Power gang but this offending was not the result of gang-related activity. Rather, it related to the debt allegedly owed by the victim to Ms Rickylee Dixon in relation to the theft of drugs.
[11] You grew up in an atmosphere where violence was commonly used in and around the household. Drug and alcohol use were also a regular feature of family life. You became involved in these activities from an early stage and these prevented you from having any form of normal life as a child and as an adolescent. You were the subject of abuse in different ways. This effectively caused you to withdraw from your family’s life. You have had periods when you have been away from gang-related activity and the consumption of drugs. For a variety of reasons, however, you have returned to those types of activity and you were involved in them as at the date of the present offending.
[12] What marks you out as different from your co-offenders is that you appear to have been at the motel by way of coincidence when the offending occurred. You had come to Rotorua for a tangi and were staying at the motel. Somehow you became involved in the events that occurred very much as an outsider. It appears from the report that you did not have a great degree of connection with the primary participants in the attack on the victim.
[13] I have no doubt that the factors that shaped your childhood and adolescence also caused you to become involved in the incident that really did not concern you. I am satisfied that your overall background contributed to the offending because it prompted you to become involved when another person may have walked away. Like the other persons I have sentenced today I propose to allow a discount of 11 months, or 20 per cent, to reflect these factors.
[14] I also detect from the report a very real willingness on your part to rehabilitate yourself. You have been on EM bail for some time, and you have been able to abide by the conditions of that. You are now caring for your mother and adopting a responsible lifestyle. I consider those rehabilitative efforts require discrete
recognition. I propose to apply a discount of five months, or approximately ten per cent, to reflect them. You have also spent approximately six months on EM bail leading up to today. I allow a discount of three months to reflect that factor.
[15] I am therefore prepared to allow an overall discount of 30 months to reflect mitigating factors. This reduces the sentence from one of 54 months imprisonment to one of 24 months imprisonment. As a result a sentence of home detention becomes a realistic prospect.
Home detention
[16] In deciding whether to impose that sentence two factors stand out. The first is that you were not directly involved in either of the events that led up to this offending or the infliction of physical violence on the victim. Had you been involved in either of those capacities I would have had no hesitation in concluding that a sentence of imprisonment was the only available sentencing option. Secondly, I consider the rehabilitative prospects I have identified would be undone if you were now required to return to serve a sentence of imprisonment. This would require you to spend 12 months in prison before being eligible for automatic release.
[17] I am therefore satisfied that a sentence of home detention is the appropriate sentence. You spent a total of six months in custody on remand. If this is not recognised now you will receive no credit for that factor. I consider that six months needs to be deducted from the 24 month end sentence I have selected. This reduces the sentence to one of 18 months imprisonment. I convert that to a sentence of nine months home detention.
Sentence
[18] On each of the charges you are sentenced to nine months home detention. You are to serve that sentence at the address nominated in the report dated 13 December 2021. You are to be subject to the conditions set out in that report. In addition, I impose the following conditions:
(a)When you leave the Court precincts you are to proceed by the most direct practicable route to your EM bail address.
(b)When you reach your bail address you are to await the arrival of the EM bail monitoring authorities who will install the necessary equipment.
(c)You are thereafter to serve the sentence of home detention at that address and you are not to leave the address other than for the purposes set out in the conditions suggested in the pre-sentence report.
[19] You are also to be the subject to the post-detention conditions suggested in the pre-sentence report.
Lang J
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS
PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE
CRI-2020-063-2105 [2021] NZHC 2748
THE QUEEN
v
DESMOND OHLSON ANGELA DEHAR
Hearing: 14 October 2021
Counsel:S J Bird (on behalf of A McConachy) for Crown H Roose for Mr Ohlson
P McGuire for Ms Dehar
Judgment: 14 October 2021
SENTENCE INDICATION OF LANG J
Solicitors:
Crown Solicitor, Rotorua
[1] Mr Ohlson and Ms Dehar face a variety of charges arising out of incidents that occurred on 12 September and 21–22 October 2020. The charges include kidnapping, participating in an organised criminal group, causing grievous bodily harm with intent to do so and wounding with intent to cause grievous bodily harm.
[2] The defendants now seek a sentence indication. This is an indication of the sentences they would receive if they were to enter guilty pleas to the charges that they face in the near future.
[3] If the defendants decline the indications and are found guilty at trial the sentence indications will have no further effect. In that event the trial Judge will impose a sentence that reflects the overall gravity of their offending as established by the evidence at trial.
The facts
[4] A summary of facts has been prepared for sentence indication purposes. These are summarised in a sentence indication that I gave for another defendant in this proceeding, Ms Rickylee Dixon.2 I take the reader of the present indication to be familiar with the facts set out in the sentence indication I gave Ms Dixon on 7 October 2021 and I do not repeat them here. Rather, I summarise the involvement of the present defendants having regard to the factual background set out in the sentence indication for Ms Dixon.
Mr Desmond Ohlson
Starting point
[5] Mr Ohlson faces charges of kidnapping and participating in an organised criminal group.
[6] Mr Ohlson was only involved in the first phase of the second incident. This occurred during the afternoon and evening of 21 October 2020. On that date
2 R v Dixon [2021] NZHC 2679.
Mr Ohlson drove to a shopping mall with Ms Rickylee Dixon and accompanied her when she approached a vehicle in which the victim was sitting. He promised the victim he would bring the victim’s partner to the address to which the victim was to be taken so he could give her support. Mr Ohlson then got into the vehicle the victim had arrived in. He travelled in this vehicle to the address of the victim’s partner, where attempts to persuade the victim’s partner to get into the vehicle were unsuccessful.
[7] Mr Ohlson later met members of the group at a bar in Rotorua where the victim was being detained in a vehicle. He and several of his co-defendants were drinking in the bar for some time using money Ms Rickylee Dixon had obtained earlier from the victim’s father. He was not involved in the incident that occurred the following morning when the victim was bound, gagged and assaulted with a variety of weapons in the motel unit. Nor did he threaten the victim at any stage.
[8] Mr Ohlson’s culpability lies in the fact that he drove to the shopping mall knowing that Ms Rickylee Dixon intended to abduct the victim in order to extort money from her father. He then supported Ms Dixon as she told the victim to get out of the vehicle in which she had travelled to the mall. It is difficult to know why he agreed to uplift the victim’s partner from his address. I regard that as a neutral factor for present purposes.
[9] Counsel for the Crown has referred me to the sentence indication given to another of Mr Ohlson’s co-defendants, Mr Thorne Tucker. Mr Tucker was present when the victim was brought to the motel unit on the evening of 21 October 2020. He was also present the following morning when the victim was loaded onto the tray of Ms Harete Ohlson’s utility vehicle and then driven around Rotorua. Mr Tucker was one of the passengers in the vehicle during that journey. He then returned to the motel unit but was not present when the assaults on the victim took place in the unit. However, he endeavoured to distract the police when they arrived at the unit later in the morning. This meant the police did not notice the victim had been wrapped in a sheet and hidden in the back of the utility vehicle at that time.
[10] Mr Tucker was then one of two persons who cleaned the motel unit after the victim had been taken away in the utility vehicle. Mr Tucker was therefore not
involved in the abduction of the victim although he travelled in a vehicle in which she was being held captive. He also aided the group to avoid detection. Katz J considered Mr Tucker’s role in events warranted a starting point of three years two months imprisonment.3
[11] I consider Mr Ohlson’s culpability is greater than that of Mr Tucker because of the role he played in the abduction of the victim on the afternoon of 21 October 2020. I consider a starting point of three years nine months imprisonment is appropriate for Mr Ohlson.
Aggravating factors
[12] Mr Ohlson has previous convictions for offending involving violence but the Crown acknowledges these are historic and relate to relatively low level offending. There is therefore no uplift to reflect aggravating factors personal to him.
Mitigating factors
[13] I would apply a discount of nine months, or 20 per cent, to reflect guilty pleas entered at this stage. This would reduce the sentence to one of three years imprisonment before taking into account other mitigating factors that may be revealed in material provided prior to sentencing.
Ms Angela Dehar
Starting point
[14] Ms Dehar faces charges of kidnapping, participating in an organised criminal group, wounding with intent to cause grievous bodily harm, causing grievous bodily harm with intent to do so (x2) and injuring with intent to cause grievous bodily harm (x3).
3 R v Tucker [2021] NZHC 1548 Al-Yousef [24]
[15] Ms Dehar was not involved in the first incident that occurred on 12 September 2020. Nor was she involved in the events that occurred during the afternoon and early evening of 21 October 2020.
[16] Ms Dehar was present at the motel when the victim was taken there on the evening of 21 October 2020. However, her meaningful involvement in events began the following morning after Ms Rickylee Dixon and others returned to the unit after unsuccessfully trying to meet the victim’s father. A t this point Ms Dixon told those present at the unit, including Ms Dehar, that they were not finished with the victim and were going to get more money from her.
[17] Ms Dehar did not take part in the physical assaults that occurred at the motel unit later in the morning. However, she stood in the doorway of the unit when this was occurring in the lounge of the address. She also prevented the victim from leaving the unit when she tried to escape immediately after having her elbow broken. She did this by wedging the door shut with her foot. She therefore actively assisted those who were assaulting the victim to continue to do so. She also remained in the unit while the victim was being beaten in the bedroom.
[18] When the violence concluded Ms Dehar assisted those who placed the victim in the rear tray of the utility vehicle by shaking rugs in the vicinity to disguise what was occurring. After the police arrived at the motel Ms Dehar was the driver of the utility vehicle when it drove away with the victim hidden in the back. She returned to the unit once the police had left but did not participate in the efforts that were undertaken to clean the motel unit up after the utility vehicle had left.
[19] The Crown contends Ms Dehar’s role in events warrants a starting point of around five years imprisonment. On Ms Dehar’s behalf Ms McGuire contends a starting point of around three years imprisonment is appropriate.
[20] I consider Ms Dehar’s overall culpability is greater than that of Mr Ohlson, largely because of her presence in the unit whilst the victim was severely assaulted and the role she played in preventing the victim from escaping. She also assisted to disguise the fact that the victim was being loaded onto the utility and she drove the
utility when it left the motel complex. For the same reasons I consider her culpability is greater than that of Mr Tucker. I therefore consider a starting point of four years six months imprisonment is appropriate for Ms Dehar.
Aggravating factors
[21] Ms Dehar has previous convictions for offending involving violence but these are historic and the Crown does not seek an uplift for these.
Mitigating factors
[22] As in the case of the other defendants I would apply a discount of 20 per cent, or eleven months, to reflect guilty pleas entered at this stage. This would reduce the sentence to one of three years seven months imprisonment before taking into account other mitigating factors that may be available on sentence.
Time for acceptance
[23] The defendants have until 4 pm on Wednesday 20 October 2021 to advise the Crown and the Court whether they accept the sentence indications I have given.
Lang J
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