R v Ohlson
[2021] NZHC 3499
•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 3499
THE QUEEN v
HARETE OHLSON
Hearing: 16 December 2021 Appearances:
S Bird for Crown
F Wood for Defendant
Judgment:
16 December 2021
SENTENCING REMARKS OF LANG J
Solicitors:
Crown Solicitor, Rotorua
R v OHLSON [2021] NZHC 3499 [16 December 2021]
[1] Ms Ohlson, you appear for sentence today having pleaded guilty to two charges of causing grievous bodily harm with intent to do so, three charges of injuring with intent to cause grievous bodily harm, and one charge of wounding with intent to cause grievous bodily harm. You have also pleaded guilty to charges of kidnapping and participating in an organised criminal group.
[2] In terms of penalty the most serious charges are those of kidnapping and wounding, or causing grievous bodily harm, with intent to do so. Those charges each carry a maximum sentence of 14 years imprisonment. The remaining charges carry lower maximum penalties.
[3] You entered your guilty pleas after I gave you a sentence indication on 27 September 2021.1 This will be annexed to my sentencing notes and will form part of them.
The facts
[4] The offending occurred after you became involved in a plan by Ms Rickylee Dixon to gain retribution, or compensation, for the fact that she believed the female victim had stolen methamphetamine from her. This led her to arrange for the victim to be kidnapped on two separate occasions. On each occasion she was subjected to substantial and prolonged bouts of physical violence using weapons. The object of both exercises was to extort money from the victim’s father, no doubt to provide compensation for the allegedly stolen methamphetamine.
[5] You were not involved in the first incident, which occurred on 12 September 2020. However, you became involved in the second incident. This began on the afternoon of 21 October 2020 and extended through to the rest of the next day.
[6] On 21 October 2020 Rickylee Dixon arranged for the victim to be taken to the carpark of a shopping mall on a pretext. The victim was then ordered to get into Ms Dixon’s car, and she was driven around the streets of Rotorua. During the afternoon Ms Dixon and her associates stopped at a tavern and kept the victim effectively
1 R v Ohslon [2021] NZHC 2536.
imprisoned inside the vehicle whilst they were there. Ms Dixon and her associates had taken the victim’s cellphone and handbag from her so she could not call for help. There is no suggestion you played any active role in the events that occurred on the afternoon of 21 October.
[7] However, at the end of the day Ms Dixon and her associates took the victim to a motel where Ms Dixon was staying. The next morning Ms Dixon made contact with the victim’s father and told him to go to a designated place so that he could bring money to secure his daughter’s release. The victim and the group then went to the place where they were to meet the victim’s father. For whatever reason he did not turn up, and the group then returned to the motel. At that point Ms Dixon told the group they were not finished with the victim yet and that they were going to get more money from her. Then began a series of events that left the victim seriously injured. You were a willing participant in those events.
[8] You responded positively when the group arrived back at the motel and Ms Dixon said they were going to get more money. You, and others, assaulted the victim and threatened her with extreme violence. During this, the victim was struck several times on the head with a baseball bat and a tomahawk. One of your co-defendants also pierced the victim’s lip with some form of sharp object.
[9] One of the most significant roles you played in the events that occurred in the motel unit was to bend the victim’s arm back to such an extent that her elbow snapped. This required her subsequently to have urgent surgery.
[10] You also accompanied an associate who took the victim into a bedroom. You assisted in binding the victim’s hands behind her back using a cellphone charging cord. You and your associate then rammed a sock into her mouth to stop her screaming and tied a bandanna around her mouth and the back of her head to hold the sock in place. Not surprisingly, this caused the victim to find it difficult to breathe. You then commenced a physical attack during which you punched the victim in the head and began kicking her. You also tried to kick the victim in the head but were unable to do so. You then began kicking her in the kidneys and in her lower back.
[11] The incident eventually finished, and the victim was wrapped in a sheet and loaded onto the back of a utility motor vehicle that one of your co-defendants had brought to the motel. She was then driven away to two other addresses. She was eventually released when persons who had been looking for her over the previous 24 hours found the vehicle in which she was travelling.
[12] The victim suffered extensive injuries including significant bruising and swelling to her face, two black eyes, a broken nose, a broken elbow, a wound to her lip and numerous bruises and abrasions. As I have already observed, she required urgent surgery for her broken elbow.
Starting point
[13] I selected a starting point of ten years six months imprisonment for your role in the events I have described. This took into account several factors. The first was that it involved a premeditated attack on a vulnerable victim who had been detained against her will for a considerable period. Secondly, it involved offending in which weapons were used to strike the victim’s head. The fact that you were prepared to deliberately break the victim’s elbow is an obvious aggravating factor so far as you are concerned.
[14] Furthermore, the purpose of the offending was to extort money from the victim’s father. It was therefore a deliberate infliction of violence for commercial gain, albeit not by you but by Ms Rickylee Dixon.
[15] Finally, the incident has had significant consequences for the victim. When Ms Rickylee Dixon was sentenced this morning the victim read out her victim impact statement. I considered that to be a heartrending, yet measured, description of the results that the offending has produced for her. These include not only the physical injuries, which were considerable and required medical intervention over some months. It also involved the victim having to make considerable financial outlay to meet medical and other costs for her treatment and rehabilitation. In addition, it has resulted in the victim and her family leaving this city because they no longer feel safe here. They are concerned that persons who may be sympathetic to your position will exact retribution on her for enabling charges to be laid. Finally, the offending has
caused significant psychological trauma for the victim. She no longer feels safe in open spaces and distrusts other people significantly.
Aggravating factors
[16] In the sentence indication I applied an uplift of four months to reflect aggravating factors personal to you. This comprised the fact that you have previous convictions for offending involving violence. The sentences imposed on those charges obviously acted as no deterrent to you becoming involved in the incident that has given rise to the present charges.
Mitigating factors
[17] So far as mitigating factors were concerned the only factor I was prepared to give you a discount for at the sentence indication stage was guilty pleas. I indicated I would provide a discount of 20 per cent, or two years two months, to reflect this factor. I now have a very detailed report tendered to me by your counsel under s 27 of the Sentencing Act 2002. In many ways this mirrors the s 27 reports that were provided in relation to Ms Rickylee Dixon and her daughter, Ms Daisy Dixon, before they were sentenced today.
[18] You grew up in a household in which the Black Power gang was a significant influence. Gang members were constant visitors to your home, and this meant your childhood and adolescence were spent in an environment where drugs and alcohol were consumed on a very regular basis. Your mother was an alcoholic and a drug addict. She frankly acknowledges that her concern during your childhood was not with your upbringing but with meeting her own needs. She therefore left your care largely to your grandparents.
[19] You grew up in circumstances that can properly described as poverty. Education was never an interest for you. You became involved in the consumption of alcohol at an early age, and then drugs. Later you progressed to consuming methamphetamine on a very regular basis, just like your mother. You also witnessed violence meted out as a matter of routine within both your household and the gang environment. In many ways it is absolutely no surprise at all that you ultimately
became involved in a matter as serious as this. It represents the culmination of all of the factors that conditioned you during your childhood, adolescence, youth and now as a young adult.
[20] I have no doubt that these factors contributed significantly to your willingness to become involved in such a violent episode. It is no surprise that you did not consider there to be anything unusual about inflicting such serious violence on a helpless and vulnerable victim.
[21] I note also, however, that you were prepared to attend a restorative justice conference with the victim. Understandably, she was not prepared to attend. You were also proactive in seeking a sentence indication for these charges.
[22] In addition, there are real signs that you have rehabilitative prospects. Rehabilitation will not be an easy task for someone in your position. Your background is such that all you have ever known is drugs, alcohol, gangs and violence. This also represents your future unless you take meaningful steps to address it.
[23] Perhaps the greatest indication of rehabilitative prospects flows from the fact that you now recognise that the persons with whom you formerly associated cannot possibly be a positive influence in your future. I also noted your comment to the report writer that you were not interested in sympathy and you just wanted understanding. Well I am not here to sympathise in the true sense, Ms Ohlson, but I do understand the factors that led you to this offending. I also consider you now have a degree of insight that will enable you to embark on rehabilitative steps in the future.
[24] Finally, I note that your mother is here in Court today. She has now been drug and alcohol-free for four years. It seems to me that if you can use her as a role model there will be real rehabilitative prospects for you. However, it will not be an easy task. The biggest challenge facing you will be your release from prison and what you do with your life at that point. If you return to the same kind of environment in which you were living up until this offending, then it is inevitable that you will be before the courts again.
[25] I am therefore prepared to give you a slightly greater discount than I have given other defendants who provided s 27 reports that in many ways mirrored yours. I am prepared to allow a discount of two years eight months to reflect the mitigating factors arising out of the s 27 report, your willingness to attend restorative justice, your expression of your remorse to the Court today and the fact that you were proactive in having these charges resolved.
[26] This means that from the starting point of ten years ten months imprisonment I am left with an end sentence of six years.
Sentence
[27] The sentences that I now impose are as follows. On the charges of wounding, or causing, grievous bodily harm with intent to do so you are sentenced to six years imprisonment. On the charge of kidnapping you are sentenced to two years imprisonment. On the charge of injuring with intent to cause grievous bodily harm you are sentenced to four years imprisonment. On the charge of participating in an organised criminal group you are sentenced to two years imprisonment.
[28] All sentences are to be served concurrently. This means you will serve an effective sentence of six years imprisonment.
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 2536
THE QUEEN
v
HARETE OHLSON
Hearing: 27 September 2021
Counsel: S Bird for Crown
F Wood for Defendant
Judgment: 27 September 2021
SENTENCE INDICATION OF LANG J
Solicitors:
Crown Solicitor, Rotorua
[1] Ms Ohlson faces charges of kidnapping, participation in an organised criminal group, wounding with intent to cause grievous bodily harm, causing grievous bodily harm with intent to do so (x 2) and injuring with intent to cause grievous bodily harm (x 3). She now seeks a sentence indication. This is an indication of the sentence that would be imposed on her if she was to enter guilty pleas to the charges in the near future.
[2] If Ms Ohlson declines the indication and goes to trial the sentence indication will be of no further effect. In that event the trial Judge will need to sentence Ms Ohlson on the basis of his or her appreciation of the overall gravity of Ms Ohlsen’s offending as established by the evidence at trial.
The facts
[3] A summary of facts has been prepared for the hearing today. This reveals that one of Ms Ohlson’s co-defendants believed the victim of the offending had stolen methamphetamine from her. She then enlisted the aid of others, including Ms Ohlson, to assist in kidnapping the victim and extorting money from her father.
[4] This resulted in the victim being kidnapped on two separate occasions. Ms Ohlson was not involved in the first, which occurred on 12 September 2020. This resulted in the victim’s father paying the sum of approximately $1500 in cash to Ms Ohlson’s co- defendant.
[5] Ms Ohlson’s role in the events that led to the charges began after she arrived at a bar in Rotorua on the afternoon of 21 October 2021. Several of her co-defendants were present, including the person who had arranged the kidnappings. The complainant had earlier been picked up from her address under a pretext and was being held captive in a vehicle parked outside the bar. Ms Ohlson’s co-defendants had taken her handbag and cellphone from her. There is no suggestion Ms Ohlson played any active role in the events that occurred at the bar.
[6] Later in the evening the victim was driven to a motel complex where several of her co-defendants were living. They took the victim into one of the units and she stayed the night there. At 7 am the next morning Ms Ohlson arrived in her utility motor vehicle.
She and others made the victim get into the rear tray of the vehicle after having arranged to meet the victim’s father at a pre-set location so he could pay more money for his daughter’s safe return. The victim’s father went to that location but Ms Ohlson and her associates never turned up. They drove around Rotorua with the victim in the tray of the vehicle for some time before returning to the motel.
[7] When Ms Ohlson arrived the instigator of events told those in the room that they were not finished with the victim yet and they were going to get more money. Ms Ohlson responded “Fuck yeah, let’s go”. There followed a series of events that lasted several hours. This involved Ms Ohlson and others assaulting the victim repeatedly and threatening her with extreme violence. One of her co-defendants struck the victim at least twice on the head with a baseball bat. One of these blows broke her nose. Ms Ohlson participated fully in these events and at one stage she pulled the victim’s arm backwards until the elbow snapped.
[8] At one stage Ms Ohlson and an associate took the victim into a bedroom. She bound the victim’s hands behind her back using a cellphone charging cord. She and her associate then rammed a sock into the victim’s mouth to stop her screaming. They also tied a blue bandanna around her mouth and around the back of her head to hold the sock in place. Not surprisingly, this caused the complainant to find it difficult to breathe.
[9] Ms Ohlson then commenced a physical attack during which she punched the victim in the head and began kicking her. She also tried to kick the victim in the head but was unable to do so. She then began kicking her in the kidneys and area of her lower back.
[10] At some stage the victim’s legs with tied up using a belt. As she was lying on the ground with hands and legs bound she was being punched, elbowed and kicked by at least three persons, one of whom was Ms Ohlson. One of Ms Ohlson’s associates also struck the victim in the head with the flat end of a tomahawk. That person also used a pair of hedge-clippers to threaten to cut the victim’s fingers. During this beating Ms Ohlson and one of her associates picked up items in the room and used them as weapons to strike the victim. At one stage one of her associates shoved a sharp object into the victim’s mouth, causing a hole in her lip.
[11] During these events one of Ms Ohlson’s associates began filming what was happening on her cellphone. She told the others that these images would be sent to the victim’s father so they could get more money from him.
[12] When the beating finished Ms Ohlson moved her vehicle to the door of the motel unit and others positioned themselves so they could hide what was about to happen. The complainant was then wrapped in a sheet and placed in the tray of the vehicle. By this stage other occupants of the motel complex had heard noises coming from the unit and called the police. When the police arrived, however, Ms Ohlson and her associates had left the address.
[13] Ms Ohlson and several associates drove the complainant to another address where they removed the bindings from her arms and legs. Ms Ohlson told the victim to sit down and that she should not say anything or they would kill her. Ms Ohlson then returned to the unit after the police had left.
[14] The victim’s ordeal ended later in the morning when members of the Black Power gang intervened. They had been looking for the victim and removed her from a vehicle in which she had been taken away from the address to which Ms Ohlsen and her associates had taken her.
[15] The victim suffered extensive injuries including significant bruising and swelling to her face, two black eyes, a broken nose, a broken elbow, a wound to her lip and numerous bruises and abrasions. She required urgent surgery for her broken elbow.
Starting point
[16] There is no tariff or guideline judgment of the Court of Appeal for the charge of kidnapping. Both counsel agree, however, that the principles referred to in R v Taueki inform the starting point to be selected for Ms Ohlson’s offending.2 Taueki relates to the offence of causing grievous bodily harm with intent to do so, and Ms Ohlson faces several charges of that nature.
2 R v Taueki [2005] 3 NZLR 372 (CA).
[17] Aggravating features of the offending include the fact that it was clearly premeditated to some degree because Ms Ohlsen arrived at the motel by design rather than coincidence. It involved the victim being incapacitated and then assaulted by multiple attackers over several hours. The victim was in a position of significant vulnerability throughout this period because she was alone with no hope of escape as well as being bound and gagged.
[18] I would also categorise the violence used against the victim as extreme because it involved the blows to the head with a baseball bat, tomahawk and other items. Although these weapons were mainly used by others Ms Ohlson participated in this type of activity by striking the victim with items she picked up in the room. She was also the person who snapped the victim’s elbow. The attack resulted in the victim suffering extensive injuries, although it is not yet known whether these will be of long- lasting effect.
[19] Counsel have referred me to several authorities.3 These show that starting points of six to 15 years imprisonment will be appropriate for offending involving the prolonged detention and infliction of violence against a vulnerable victim. The Crown contends a starting point of 12 to 13 years is appropriate given the fact that Ms Ohlson was a principal protagonist in binding the victim and inflicting serious violence on her over several hours. It accepts she was not, however, the overall instigator of the offending.
[20] On Ms Ohlson’s behalf Mr Wood contends that, based on the authorities, a starting point greater than eight to nine years imprisonment cannot be justified. He also submits the Court should be careful not to double count the aggravating features relied on by the Crown.
[21] I consider Mr Wood’s submissions as to starting point may have merit if the incidents that led to the charges are not considered in isolation. I consider another factor needs to be taken into account in setting the starting point. This is the fact that the object of the offending was to unlawfully extort money from the victim’s father. It was facilitated, in other words, to enable Ms Ohlson and her associates to commit another
3 R v Johnson [2019] NZHC 111, R v Live [2017] NZHC 2253, R v Salt [2017] NZHC 1978, Coke v R
[2010] NZCA 87, Couper v R [2017] NZCA 588, R v Hourigan [2020] NZHC 2753, R v Mulvey [2016]
NZHC 2568, R v Yates [2018] NZHC 1341 and Kreegher v R [2012] NZCA 22.
criminal offence involving a second victim. Taking this factor into account I consider an appropriate starting point to be 10 years six months imprisonment.
Aggravating factors
[22] Ms Ohlson has a considerable number of convictions for offending involving violence. Some of these date back to offending dealt with by the Youth Court. However, she also has more recent convictions in 2017, 2018 and 2020 for offending involving violence. I therefore apply an uplift of four months to reflect this factor.
[23] This results in a sentence of ten years ten months imprisonment before taking into account mitigating factors personal to Ms Ohlson.
Mitigating factors
[24] The only mitigating factor for which I propose to give credit at this stage is guilty pleas. Ms Ohlson’s trial is not due to commence until August 2022. The guilty pleas would therefore be entered 11 months prior to the trial date. However, Ms Ohlson first appeared in September 2020 and she faces a strong Crown case. I would therefore allow a credit of 20 per cent to reflect guilty pleas. This would result in a discount of two years two months.
[25] In addition, Ms Ohlson may be able to rely on other mitigating factors identified in material provided prior to sentencing.
Indicated sentence
[26] The indicated sentence is one of eight years eight months imprisonment. Mr Wood is to file and serve a memorandum no later than Monday 4 October 2021 to advise the Crown and the Court whether Ms Ohlson accepts the indication I have given.
Lang J
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