R v Ohlson
[2022] NZHC 921
•4 May 2022
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-063-002105
[2022] NZHC 921
THE QUEEN v
DESMOND OHLSON
Hearing: 4 May 2022 Appearances:
L Evans for the Crown
F Wood for the Defendant
Sentencing:
4 May 2022
SENTENCING NOTES OF WOOLFORD J
Solicitors: Gordon Pilditch (Office of the Crown Solicitor), Rotorua Counsel: Tompkins Wake (F Wood), Rotorua
R v OHLSON [2022] NZHC 921 [4 May 2022]
[1] Mr Ohlson, you appear for sentencing having pleaded guilty to one charge of kidnapping pursuant to s 209 of the Crimes Act 1961, and one charge of participation in an organised criminal group pursuant to s 98A. The maximum penalties for these charges are 14 and 10 years’ imprisonment respectively.
Facts
[2] You played a small part in a larger plan to kidnap a woman and blackmail her father into handing over large sums of cash in exchange for her safe release. The offending was organised by Ms Rickylee Dixon, who believed the victim had stolen from her.
[3] The victim was kidnapped on two occasions. You were only involved in the second kidnapping.
[4] The first kidnapping occurred on 12 September 2020. The victim was pulled from her bed and threatened with an imitation firearm. She was taken to Ms Dixon’s address and beaten with a baseball bat within earshot of her father, who came to the address three times with increasing sums of money. As I have said, you were not involved in this kidnapping.
[5] The second kidnapping began on 21 October 2020. An associate of the victim took her to the carpark of a shopping centre. The victim sat in the back of the associate’s vehicle, next to the associate’s six-year-old daughter.
[6] You and Ms Dixon were sitting in a vehicle driven by an associate of yours, Mr Te Kiri, in the same carpark. You both left the vehicle and walked over to the victim. You stood by as Ms Dixon persuaded the victim to accompany her. The victim agreed to do so, not wanting to be dragged out of the vehicle in front of the young child next to her. A promise was made that the victim’s partner would be picked up to support her, and you were put in charge of arranging this.
[7] Ms Dixon and the victim left with Mr Te Kiri. You got into the victim’s associate’s vehicle and directed him to drive to the victim’s partner’s address. However, the victim’s partner refused to accompany you.
[8] Meanwhile, Mr Te Kiri and others took the victim to her father’s address, where he paid them several thousand dollars. They did not, however, release her. They drove around Rotorua, ending up at a bar, where you eventually joined them. You and other members of the group spent some of the cash provided by the victim’s father on gambling machines. During this time, the victim was locked in the car, under guard. It is unclear whether you took part in guarding the victim during this time.
[9] Several members of the group left the bar and drove around Rotorua with the victim before returning to the bar in the evening. Members of the group then took the victim to Ms Dixon’s address, a motel room, where she was held overnight. You arrived at the motel at 1.00 am and joined the group for drinks.
[10] The victim, in her interview with the Police, described you as a protective figure during this time. You made sure she did not get hurt, asked her if she was alright, and if she needed anything. You gave her cigarettes when she asked. She said of your actions “that was what kept me going… so I thank him for that”.
[11] You left the motel at 7.00 am that morning, and had no more involvement in the offending. However, for completeness, I will summarise what happened next.
[12] Shortly after you left, members of the group contacted the victim’s father and attempted to extort more money from him. Having failed to meet him, they returned to the motel, tied and gagged the victim, and assaulted her with kicks, punches, and blows from a baseball bat, hand weights, a tomahawk and hedge clippers. She suffered serious injuries including a broken nose and elbow, black eyes, and bruising and swelling to the face and body.
[13] The group then hid the victim in the boot of a vehicle. The Police arrived at the motel, but members of the group distracted them, allowing others to leave the area with the victim. They then made further attempts at extortion. The victim was eventually rescued and taken to a hospital where she spent several nights.
Personal circumstances
[14] You are now 48 years old, from Whakatāne. You are of Tūhoe and Ngāti Awa descent. I have been provided a report by Dr Jarrod Gilbert, among others, that describes your upbringing and hopes for the future.
[15] The report explains that your father was a member of Black Power. Gang members would regularly come to your house to drink, party and take drugs. You witnessed extreme violence between gang members. The gang was like your family, and you say that “anyone with a patch was an uncle”. You were the oldest child and effectively took on the role of parent for your siblings at a young age, including changing their nappies and shoplifting food for them. At one point your mother took you to a women’s refuge, but eventually you returned.
[16] You say school was like a different world, where adults were kind to you. You were embarrassed at having no food and going barefoot, and so often would avoid going. At 14 you left school with no qualifications. You joined Black Power as you saw no other option. You told the report writer you were “sick of being the one that’s getting picked on… I wanna be the one that’s doing the picking on”. You became a patched member at 19, and by your 20s were addicted to methamphetamine. It seems you have been addicted ever since. You were given methamphetamine by Ms Dixon and were high at the time of your offending.
[17] You and your mother both told the report writer your father had left the gang lifestyle and become a voice against methamphetamine in the community. Your father had encouraged you to quit the drug. You did not listen, but are listening now. Your father passed away recently, but not before you made a commitment to him to stop using methamphetamine.
[18] You report you are no longer a member of Black Power. You want to honour your promise to your father, to be a better father to your 12-year-old daughter. You describe her asking you about her whakapapa and you being unable to tell her. You would like to learn about tikanga Māori. You think if you had learnt earlier, you might not have become a drug addict. Your mother says you will be able to learn, and be supported in your rehabilitation, on your marae. Your brother, who is not a gang
member, has offered you work at his orchard. There is clearly a network of support for you to rely on, outside the gang and outside prison.
Sentencing approach
[19] Mr Ohlson, the sentencing process follows a standard approach under the Sentencing Act 2002 (the Act).1 I must consider the purposes and principles of sentencing, as set out in the Act. I will then assess what would be an appropriate starting point for the particular culpability of your offending. In doing so I will have reference to the sentences given to your co-offenders and take into account the particular features of your offending.
[20] I will then consider any relevant aggravating or mitigating features personal to you which might require altering the starting point.
[21] In sentencing you, Mr Ohlson, I have particular reference to the need for the sentence to demonstrate accountability for the harm done to the victim, to promote in you a sense of responsibility for that harm, and to assist in your rehabilitation and reintegration.2 Looking at the principles of sentencing, I also consider especially relevant the need to be consistent with the sentences of your co-offenders, and the effect of your offending on the victim.3
Defence submissions
[22] Your counsel, Mr Wood, concedes this was a premeditated, gang-related offending by multiple offenders against a vulnerable victim. However, he submits your conduct during the offending, in reassuring the victim and offering her support, as well as offering to pick up her partner so he could support her, is a fundamental mitigating factor.
1 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
2 Sentencing Act 2002, s 7(1)(a), (b) and (h).
3 Section 8(e) and (f).
[23] Mr Wood submits that I should adopt a starting point consistent with two of your co-offenders, Ms Dehar and Mr Tucker. Like you, Ms Dehar and Mr Tucker had limited roles in the offending.
[24] Mr Tucker arrived at the motel on the evening of 21 October 2020, and remained there until the following morning. He joined members of the group as they attempted to extort money from the victim’s father. He then left the motel, and was not alleged to have been present during the assault.4
[25] He returned to the motel after the assault. When the Police arrived at the motel, Mr Tucker distracted them by speaking to them and sitting on their car, allowing Ms Dehar and others to drive away with the victim.5 After the other members of the group had left, Mr Tucker stayed behind and, at the direction of Ms Dixon’s mother, cleaned the unit and removed bloodied items of clothing.6
[26] Katz J considered Mr Tucker’s starting point in light of other cases in which the offender played a minor role in a gang-related kidnapping.7 She adopted a starting point of three years, two months’ imprisonment.8
[27] Ms Dehar was also present at the motel with you on the evening of 21 October 2020. Like Mr Tucker, she remained at the motel until the following morning. She was present in the unit during the assault on the victim. The victim tried to flee immediately after having her elbow broken, but Ms Dehar blocked her escape by wedging the door shut with her foot.9
[28] While the victim was being taken from the motel, Ms Dehar disguised the group’s actions by shaking rugs nearby. She then drove the victim away from the motel.10
4 R v Tucker [2021] NZHC 1548 at [5]–[8].
5 At [12]–[13].
6 At [13].
7 R v Blom [2017] NZHC 827; R v Paleaaesina [2017] NZHC 1038; and R v Brown [2017] NZHC 1241.
8 R v Tucker, above n 4, at [24].
9 R v Dehar [2021] NZHC 2748 at [17].
10 At [18].
[29] Lang J considered how Ms Dehar’s culpability compared with your own and Mr Tucker’s.11 Because she was present during the assault, prevented the victim from escaping, and actively helped with moving the victim away from the scene of the offending, Lang J considered Ms Dehar’s culpability greater than both yours and Mr Tucker’s. He adopted a starting point of four years, six months’ imprisonment.12
[30] I note Lang J also provided a sentence indication to you, on 14 October 2021. Lang J considered your culpability slightly greater than Mr Tucker’s, because of the role you played in abducting the victim in the first place. He adopted a starting point of three years, nine months’ imprisonment, which you obviously rejected.13
[31] Mr Wood submits that your role was less serious than Ms Dehar’s. You did not witness the assault, let alone assist by preventing the victim from leaving or distracting Police. You were simply there to “make up the numbers” by being present at the abduction.
[32] In relation to Mr Tucker, Mr Wood submits you assisted in what was then a non-violent kidnapping. Mr Tucker’s meaningful involvement began after the victim had been assaulted. He knowingly contributed to the victim remaining at risk of further harm and being delayed medical care by distracting the Police and allowing her detention to continue. The violence must have been brought home to him, as he assisted in cleaning up the victim’s blood.
[33] Mr Wood therefore submits your culpability was lower than both Ms Dehar’s and Mr Tucker’s. It is lower still after taking into account your protection of and care for the victim during the offending. He suggests a starting point of between two years, six months’ and three years’ imprisonment.
[34] Mr Wood submits there are no aggravating factors personal to you as your previous convictions are too historic and low-level to justify an uplift. I note Lang J agreed with this submission at your sentence indication.14
11 Mr Ohlson and Ms Dehar received a sentence indication together.
12 At [20].
13 At [11].
14 At [12].
[35] At your sentence indication hearing you were offered a 20 per cent discount for pleading guilty. You did not accept the indication. Mr Wood submits that you should nevertheless receive the discount in full, as the delay was caused by you changing legal counsel and caused no prejudice to the Crown or witnesses.
[36] You spent four months on restrictive EM bail conditions, preventing you from seeing whānau while your father’s health deteriorated. Mr Wood suggests a discount of two months to account for this time.
[37] Finally, Mr Wood submits a combined discount of 20 to 25 per cent is appropriate to reflect a number of factors personal to you. First, your personal background, as described , which led to your “all but inevitable” introduction to the criminal justice system. Second, your remorse for the offending, that you take responsibility for the harm suffered by the victim after you left the motel, and your desire to apologise. Mr Wood notes no restorative justice conference was attempted as the victim had already declined such attempts from your co-offenders. Third, your s 27 report also addresses your willingness, and ability, to rehabilitate.
Crown submissions
[38] The Crown submits that I should rely on the starting point adopted by Lang J at your sentence indication, that is, three years, nine months’ imprisonment.
[39] That is because, the Crown submits, nothing has changed since that indication was made. The updated summary of facts that has since been provided, which describes your kindness to the victim during her detention, must be viewed in its context. By your guilty pleas you admit that, while checking on the victim and giving her cigarettes, you were also detaining her with intent to hold her to ransom.
[40] The promise you would pick up the victim’s partner was made to induce the victim to submit to the offending without resistance. The Crown submits that if anything, it was an aggravating factor. At the same time, Ms Dixon promised the victim she would not be hurt. Neither promise was kept. The Crown also considers that, as the only patched gang member in the group, your mere presence likely contributed to the intimidation of the victim.
[41] The Crown also submits you should receive a lower guilty plea discount than the 20 per cent offered to you five months ago. Other co-offenders accepted this offer, but you declined and so should not be entitled to the same benefit. The Crown also disagrees with Mr Wood on the effect of your late plea. The Crown and other witnesses, including the victim, had continued preparing for the trial, causing the victim further stress.
[42] The Crown accepts you are entitled to a discount for time spent on EM Bail, and factors personal to you. However, it notes there is no evidence you have left the gang.
[43] It also submits any discount for remorse should factor in your guilty plea which came months after your co-offenders accepted responsibility for their offending.
[44] While the Crown confirms the victim made clear she did not want to attend any restorative justice conference, it notes you and your counsel never requested this.
Discussion
[45] I agree that you should be sentenced consistently with those co-offenders who had a relatively minor role in the victim’s detention.
[46] Your role in the offending was considerably less serious than that of Ms Dehar, who participated in the detention of the victim during the assault itself.
[47] However, I do not agree with the submission that you are less culpable than Mr Tucker. Mr Tucker’s role in the offending meant the victim remained in danger, but your role helped place the victim in danger in the first place. While you left the situation before the assault, you must bear some of the shared responsibility for it. You and the group detained the victim in order to extort money from her family. You kept her detained while you spent the night drinking. In your s 27 report you describe witnessing violence during such gatherings, and the possibility of violence toward the victim must have been obvious to you.
[48] Neither you nor Mr Tucker were present during the assault, and it is also not clear that the degree of violence was brought home to Mr Tucker until after the assault, when he cleaned the motel unit.
[49] I agree your kindness toward the victim during her detention is a mitigating factor in your favour. But it must be remembered you were kind to her in the context of being her captor. You offered her cigarettes, while assisting others in detaining her in a motel room in order to blackmail her father.
[50] I consider your role in the offending was more serious than Mr Tucker’s, as your presence assisted in the initial detention of the victim. Your conduct throughout can only be a slight mitigating factor.
[51] I therefore adopt a starting point of three years, six months’ imprisonment. This incorporates a reduction of three months from the sentence indication by Lang J to recognise the changes made in the agreed summary of facts.
Aggravating and mitigating factors
[52] I agree with Mr Wood and Lang J that your criminal history is too minor and historic to justify an uplift to your sentence.
[53] Your four months spent on restrictive EM bail conditions justifies a discount to your sentence.15 There is no mathematical formula for calculating this recognition, although it must be less than one-to-one equivalence.16 Given the hardship it must have caused you while your father was unwell, I consider your time on EM bail warrants a discount of two months’ imprisonment.
[54] Having already considered your kindness to the victim during her detention as part of the starting point, I am careful not to double-count this factor. I accept you are remorseful for your actions, but, as the Crown says, I note your late guilty plea, which caused the victim additional unnecessary stress. I place no weight on the fact that you
15 Sentencing Act, s 9(2)(h).
16 Parata v R [2017] NZCA 48.
did not seek a restorative justice conference. It appears the victim had made her views on restorative justice clear.
[55] Much of what your s 27 report says is difficult to verify. However, it is clear that you set out on a path towards the present offending at an early age. Growing up, your only role models were gang members. You were forced to take care of your siblings, even turning to crime to do so. You considered the gang to be your only option. This in turn led to your addiction to methamphetamine, which I accept drove this offending. Your s 27 report is a credible account of matters which I agree diminish your moral culpability for the offending, and justify a discount.17
[56] I also consider, based on your s 27 report, that you have a real chance, and motivation, to rehabilitate. I agree with you that, if you had been immersed in tikanga Māori as a child, you may have seen a path to a different way of life than the one you seem to have thought was your only option. You now have an opportunity to take that path.
[57]I apply a discount of 25 per cent in recognition of these factors.
[58] You were offered a chance to plead guilty in October 2021, for a discount of 20 per cent. I recognise some delay was caused by your change in counsel, and the amended summary of facts. However, the amendments to the summary of facts have made only a slight difference to your end sentence. They concern uncontested statements made by the victim in her interview with Police, and therefore could have been put to the Court earlier. I consider you cannot receive the guilty plea discount originally offered to you, and therefore lower it to one of 15 per cent.
[59] This is consistent with the approach upheld in Westall v R, in which the defendant declined a sentence indication that included a 20 per cent discount, sought to dispute the summary of facts, and ultimately received a 15 per cent discount for a later guilty plea.18
17 Carr v R [2020] NZCA 357 at [65].
18 Westall v R [2021] NZHC 3440.
[60] This leads to an end sentence of 23 months’ imprisonment, which I have calculated by applying the overall discount of 40 per cent to the starting point of three and a half years’ imprisonment before deducting two months for the time spent on restrictive EM bail conditions.
Conclusion
[61] Mr Ohlson, therefore, on the charges of kidnapping and participating in an organised criminal group, I sentence you to 23 months’ imprisonment, to be served concurrently. As this sentence is under two years’ imprisonment, I also give you leave to apply for home detention under s 80I of the Sentencing Act if a suitable address becomes available.
[62] Finally, I direct that Mr Ohlson be subject to six months post-release conditions as follows:
(a)To attend an assessment for alcohol and drugs as directed by a Probation Officer. To attend and complete any counselling, treatment or programme, including residential, as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
(b)To submit to alcohol or drug testing as requested by Police or a Probation Officer.
(c)Attend a psychological assessment with a departmental psychologist as directed by a Probation Officer and complete any treatment and/or counselling as recommended by the assessment to the satisfaction of a Probation Officer.
(d)To reside at an address approved by a Probation Officer and not move to any new residential address without the prior written approval of a Probation Officer.
Woolford J
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