R v Ormond
[2023] NZHC 2539
•8 September 2023
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2022-020-866
[2023] NZHC 2539
THE KING v
RYAN REREMOANA WILLIAM ORMOND HARLAND FREEMAN STERLING ORMOND
Hearing: 8 September 2023 Appearances:
M J R Blaschke for Crown
T M Cooper KC for Mr R Ormond A W Clarke for Mr H Ormond
Judgment:
8 September 2023
NOTES ON SENTENCING OF GRICE J
Introduction
[1] Mr Ryan Ormond, you appear for sentence today on a charge of wounding with intent to cause grievous bodily harm.1
[2] Mr Harland Ormond, you appear for sentence on charges of injuring with intent to injure,2 and attempting to pervert the course of justice.3
1 Crimes Act 1961, s 188(1) — maximum penalty 14 years’ imprisonment.
2 Section 189(2) — maximum penalty five years’ imprisonment.
3 Section 117 — maximum penalty seven years’ imprisonment.
R v ORMOND [2023] NZHC 2539 [8 September 2023]
[3] The offending relates to events that occurred in Māhia about 28 February 2022. It involved assaults on the victim, Mr Cameron Karangaroa. He has serious and permanent injuries as a result.
[4] You each played a part in the assaults so the background facts are the same. However, your roles were significantly different. I refer to you in the sentencing by your first names to avoid confusion.
[5] On 17 May this year, I provided a sentence indication in respect of both of you. You both, through your counsel, accepted that indication and pleaded guilty to the charges. So therefore, my remarks today lead on from that sentence indication.
[6]Mr Ryan Ormond, you accepted a sentence indication on the following basis:
(a)a starting point of nine years’ imprisonment;
(b)an uplift of one month for previous relevant conviction or convictions;
(c)a 15 per cent discount for a guilty plea;
(d)a five to seven-month discount for time on electronically monitored (EM) bail; and
(e)there were to be further adjustments granted in respect of relevant personal factors from the material which I now have before me.
[7]Mr Harland Ormond, you accepted a sentence indication with:
(a)a starting point for lead charge of injuring with intent to injure of one year and nine months’ imprisonment;
(b)an uplift of five months for a separate charge of attempting to pervert the course of justice;
(c)a 20 per cent discount for guilty plea; and
(d)further discount for youth and any other adjustments based on material which I now have before me today.
[8] I indicated in respect of you, Harland, that home detention appeared to be the least restrictive outcome available in the circumstances.
Background to the offending
[9] I outlined the factual background in some detail in the sentence indication. Counsel have again addressed me both for the Crown and defence on that background. The background is based on the summary of facts which has been agreed to.
[10] During the tangihanga for your father, who had passed away the day before, you assaulted Mr Karangaroa after he was disrespectful (that is what you had been told) towards your father and had been behaving aggressively towards others in the house where your father’s body lay.
[11] Ryan, you were the primary aggressor and you punched, stomped on, and kicked Mr Karangaroa in the head and body.
[12] Harland was also involved in the assault and punched Mr Karangaroa in the head, rendering him unconscious.
[13] Mr Karangaroa was dragged across the road by one or both of you and into a ditch directly across the road.
[14] Ryan, you then carried out a serious assault on Mr Karangaroa while he lay unconscious in the ditch. This was only stopped by Harland intervening. The assaults caused significant injuries to Mr Karangaroa, including a severe traumatic brain injury, a punctured lung, a number of broken ribs, a lacerated liver, and significant bruising to his face and body as well as his stomach and legs.
[15] Neither of you called emergency services nor did you seek medical assistance for Mr Karangaroa. He was left unattended lying in the ditch for over two hours before he was airlifted to hospital. When a 111 call was finally made over an hour after the
assaults, you, Harland, spoke to the operator and gave them a false name before describing Mr Karangaroa’s condition.
[16] A false story was concocted that Mr Karangaroa had ridden his bike into the ditch, and this was the story that was given to police from those present at the house, including yourselves, your partners and your younger brother. Ryan, you were arrested in relation to the assault on 8 April 2022, and continued to deny that you were involved in the assault.
[17] Harland, you attempted to persuade others, including your younger brother, to keep to the story told to the police, before you were ultimately arrested on 25 April 2022.
[18] A tragic aspect of this is that the victim respected and looked up to your father and had come to pay his respects at the tangi. He was, as Ms Cooper KC says, “also grieving”. You did not know it was a perfect storm that resulted in the tragic events that unfolded.
Victim impact statements
[19] I have read the impact statements and I have also heard them read this morning. I heard the words of the victim’s mother, Ms Dawn Karangaroa. I was impressed by her hope for the future of Mr Karangaroa and her determination to keep moving forward and her positivity as well as her attempt to find healing. I heard from Cameron himself as his victim statement was read out. I heard from Ms Kim Rore, Mr Karangaroa’s partner. Cameron’s life has been changed irrevocably. But also has Ms Rore’s life. It has been restricted as she has had to put her life on hold to care for her partner. The children have also lost out. They and Ms Rore have been at the victim’s side to support and advocate for him since the assault. Together they have eight mokopuna who miss their grandfather and always ask after him.
[20] The injuries that Cameron Karangaroa suffered were severe, and in particular the haemorrhaging in his brain and skull fractures has given him head trauma which he is suffering from. He has memory loss. He is angry over the assault and does not understand why it happened. As I said, his life has been changed forever due to his
injuries. His independence has been taken away from him and he remains disabled despite a year of rehabilitation. The rehabilitation continues and there appears to be improvement.
Approach to sentencing
[21] I now turn to the approach I have got to take to sentencing. I follow the general two-step approach which was outlined by the Court of Appeal in Moses v R.4
[22] The first step is to calculate the starting point, incorporating the aggravating and mitigating factors of the offence. At this step, I assess a number of features which add to or reduce to the seriousness of the conduct and criminality involved. The overall objective is to adopt a starting point reflecting the culpability inherent in the particular offending.5
[23] The second step is to adjust the starting point, applying uplifts and discounts that reflect the aggravating and mitigating factors personal to each of you, the offenders, as well as any guilty plea discount, to reach the end sentence.
[24] As I did in the sentencing indication, I propose to first give the sentence in respect of Mr Ryan Ormond, before turning to Mr Harland Ormond’s sentencing.
Purposes and principles of sentencing
[25] In sentencing you, I must take into account the principles of sentencing under s 8 of the Sentencing Act 2002, and the relevant purposes under s 7 of the Act.
[26] The following principles in my view are particularly relevant to both of you in this case:
(a)first, taking into account the gravity of the offending, including your degree of culpability or blameworthiness;6
4 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
5 Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [28] and [32].
6 Sentencing Act 2002, s 8(a).
(b)secondly, taking into account the seriousness of the offence;7
(c)thirdly, imposing the least restrictive outcome that is appropriate in the circumstances;8 and
(d)then taking into account your personal, whānau, community, and cultural background in imposing a sentence with a rehabilitative purposes.9
[27] I also consider the relevant purposes of sentencing in this case in respect of both of you include in particular:
(a)holding you accountable for the harm done to the victim and the community by the offending;10
(b)promoting in you a sense of responsibility for, and an acknowledgement of, that harm;11
(c)deterring you and others from committing the same or similar offending;12 and
(d)also assisting in your rehabilitation and reintegration.13
Sentence — Ryan Ormond
[28] Mr Ryan Ormond, I first address the appropriate sentence for you. As I noted, I indicated a starting point of nine years’ imprisonment, with one month uplift for previous relevant convictions, a 15 per cent discount for guilty plea, as well as a five to seven-month discount for time on EM bail with further adjustments I will make today.
7 Section 8(b).
8 Section 8(g).
9 Section 8(i).
10 Section 7(1)(a).
11 Section 7(1)(b).
12 Section 7(1)(f).
13 Section 7(1)(h).
[29] Today the focus has been on the personal factors and discounts of both of you defendants. I am of the view that the sentence indication continues to be the appropriate starting point. To that, I will adjust for personal factors and any further discounts for EM bail.
Sentence indication
[30] I set out in detail the reasons I had reached that starting point in my sentence indication and the Crown today has emphasised the considerable difference between you in culpability or blameworthiness in the conduct which has given rise to the offences. My starting points reflect that significant difference in culpability.
[31] Mr Ryan Ormond, you have heard that I have considered the aggravating factors based on R v Taueki to be:14
(a)extreme violence;
(b)serious injury;
(c)attacking the head;
(d)multiple attackers; and
(e)vulnerability of Mr Karangaroa.
[32] I found mitigating factors involved included provocation. It was not self-defence nor was it advanced as such. And by the time of the final attack in the ditch, provocation should have been very much spent.
[33] I therefore found the offending put it within what is described as band three of the R v Taueki bands, attracting a starting point between nine and 14 years’ imprisonment. The presence of the five aggravating factors, particularly the serious injury, meant the combination of factors was grave. The placement in band three,
14 R v Taueki [2005] 2 NZLR 372 (CA).
taking into account those factors, was appropriate, as I set out in the sentencing indication at [40].
[34] I looked at the overall circumstances of the offending and reached the conclusion that based on consistent authorities,15 band three was appropriate, with a starting point as I said between nine and 14 years. At the second step I looked at adjustments including previous convictions for serious violence and mitigating factors, including the guilty plea, to reach a starting point of nine years’ imprisonment, to which I applied a one-month uplift to account for the previous convictions and a discount of 15 per cent for the guilty plea. Overall, I reached a sentence of seven years and 8.8 months as a starting point.
Submissions of the parties
Defence submissions
[35] From there, I have heard today submissions on personal factors. Ms Cooper submitted a discount of 30 per cent was appropriate to recognise your difficult background, Ryan, and its causal links to your offending. She sought a discount of 10 per cent for psychological and emotional factors present at the time. She submitted that was appropriate given the extent to which they have reduced your culpability, and your low risk of re-offending should be considered. Your counsel proposed a discount of five per cent for your evident remorse and willingness to participate in restorative justice, as well as a discount of eight to 10 months for time spent on restrictive bail conditions.
Crown submissions
[36] The Crown, Mr Blaschke, accepted that a substantial allowance was appropriate for your background and upbringing but submitted an allowance of no more than 20 per cent was appropriate. The Crown rejected a separate discount for psychological factors, saying these made you a good candidate for parole but have to be balanced against your previous convictions. The Crown also warns against double
15 Haimona v R [2011] NZCA 375; Rowles v R [2016] NZCA 208; R v Taueki, above n 14; and
Torrington v R [2020] NZCA 301.
counting for these factors, when the starting point I adopted in my indication had already taken into account the provocation and the conduct of the victim on the night (as you saw it).
[37] The Crown accepts a small allowance may be justified in view of the remorse but submits any discount should be taken to be only light in view of the generous guilty plea discount.
[38] In respect of discounts for time spent on EM bail, the Crown submits the Court should adhere to the seven months that I indicated in the allowance.
Uplifts in this case
Previous relevant conviction
[39] I turn to the uplifts in this case. There was only one uplift and that was your previous offending which I have taken into account.
Discounts in this case
Guilty plea
[40] Turning first to the guilty plea. I consider the 15 per cent discount is appropriate and consistent with my sentence indication.
Personal circumstances
[41] I now turn to the personal circumstances. It is well settled that factors relating to personal, familial and cultural backgrounds of offenders can be mitigating at sentencing where they are shown to have a demonstrable or causative connection to the offending.16 Where there are strong causal links to s 27 factors, that is factors that are relevant related to the background and upbringing, discounts of up to 30 per cent can be justified.17
16 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; and Berkland v R [2022] NZSC 143, [2022] 1
NZLR 509.
17 Solicitor-General v Heta [2018] NZHC 2453.
[42] The report you have provided, Ryan, under s 27 of the Sentencing Act, provides a detailed picture of a traumatic upbringing and adverse childhood experiences, including exposure to alcohol, drugs and violence from an early age. The report notes that intergenerational violence has been a central feature in your life, poverty was pervasive, and food was often scarce.
[43] The factors in the cultural report are relevant due to, as the Court of Appeal in Zhang noted, first ingrained and systemic poverty as the result of cultural factors which went to living conditions and your experiences in your upbringing.18 Secondly social, cultural and economic deprivation which has a nexus with the offending so is relevant according to the Supreme Court decision in Berkland.19 To properly consider those types of discounts, it important that the detail and fulsome reports about the personal circumstances are before the Court to ensure consistent outcomes are reached. I have that in this case with fulsome and extensive detailed reports which go into your background including your cultural, economic and social circumstances as well as the number of reference letters that I have read that are before the Court.
[44] The factors in particular which are clearly linked to your offending, as your counsel summarises from the report, include:
(a)cultural dislocation — while you were raised near your tūrangawaewae, you were not raised with close connections to your whakapapa or with tikanga, that has impacted on your sense of self and ability to thrive and be resilient. Despite this you are proud of your family and its strong connections to Māhia, where “Ormond” is a name synonymous with the region, according to the reports.
(b)a high degree of adverse childhood experiences – these had an impact on your cognitive development and ability to learn appropriate emotional regulation strategies and tools to deal with anger and grief;
18 Zhang v R, above n 16.
19 Berkland v R, above n 16.
(c)extensive physical abuse and witnessing family violence in the home - this led to aggressive tendencies as a child and a young adult and the normalisation of using violence to deal with emotionally difficult situations; and
(d)alcohol use from a very early age (Ms Cooper submitted it was from the age of two) - you grew up with a normalisation of substance dependency, resulting in your own substance addiction as a young adult.
[45] Ms Cooper then points to the circumstances as they existed on the night of the offending. These included the fact that you had consumed alcohol, you were suffering grief and mixed emotions at the loss of your father and experienced pressure as the new head of the family.
[46] In those circumstances you were called on to deal with what you were told was disrespect. It was reported to you by your whānau from the house during what was a significant and sacred tangihanga process. The report writer points out that for you, the disrespect and intrusion of the victim on the night in question “would have felt like an enormous affront” both to your father’s mana as well as your mana and that of your whānau. You as the eldest, as the mataamua in charge felt directly responsible. Ms Cooper pointed out that you were undoubtedly in a state of extreme panic and anger, particularly when you heard your wife who seemed afraid in the victim’s presence. Your wife is a key factor and important support in your life. Ms Cooper submitted the clear causal connection between these factors and your offending justifies a discount of 30 per cent.
[47] In addition, I heard from your mother this morning, she appeared in person to address the Court. She accepted responsibility for the deprivation you had growing up as well as the normalisation of the behaviours that contributed to why you are here today. But she also pointed out that this was intergenerational. She outlined your proud cultural ties to Rongomaiwahine. She also pointed out she had a tough upbringing. Your mother said she was now at a turning point in her life and apologised to you.
[48] Your personal circumstances and upbringing have a clear causal connection to your offending in this case. In my view a discount somewhere in the vicinity of 25 to 30 per cent is warranted to acknowledge those difficulties and cultural issues. They resulted in your excessive response in this case to the victim’s conduct according to the reports. I consider there is overlap of material provided in the cultural and psychological report, and the other material (which I am about to outline) and for this reason adopt a figure at the lower end for the discount of the cultural issues of 25 per cent to account for that overlap.
Psychological state factors
[49] I turn to the psychological state factors. You have provided a detailed psychological report which validates and builds on the information in your cultural report. It details that the offending occurred in the context of your grief for your father, which was particularly difficult given the challenging nature of your relationship with him.
[50] The report notes that taking a leading role in the tangihanga was of importance to you and consistent with your strong family values. Additional factors compounding the offending are said to include the victim’s apparent hostility (well that was what was reported to you), indifference and intoxication. The report states your prior alcohol consumption was likely to have been both a coping mechanism for your grief as well as exacerbating your response to the victim. It clouded your judgment and impacted your ability to manage the strong emotions you experienced. The report states that you were in a vulnerable state and appear to have responded impulsively and in an emotionally dysregulated manner, that “suggests a significant loss of control in the face of grief and wanting to protect your own family.”
[51] The report, however, assesses you at low risk of reoffending, and states that you are at present willing and capable of managing risk if future situations like this arise. The report noted your highly successful and otherwise entirely pro-social lifestyle and family support. It says you have evidenced the ability to overcome adversity and you have been positively influenced by some close to you, including your aunt and uncle when you were younger, and more recently your wife and her
family — you are said to have “thrived”. Similarly, in your employment you have excelled and I have read the references, it appears you have achieved well in your career and reached a team leader position. You hold strong family values and appear to enjoy helping others and your local community. The report states that protective factors and strengths for you include your family support, your relationship with your wife, your resilience and your self-insight, your work ethic and career prospects and your desire to support your family and contribute to the wider community.
[52] As I have mentioned earlier, I have numerous character references submitted in support of you. In particular, the reference from your father-in-law impresses me. You are a hard worker, you are a natural leader, with strong family and work values. You have a lot to contribute.
[53] You are well regarded by friends, relations and colleagues alike. I mention also, as it was indicated by the Crown and the defence, that more recently you worked in support of the community, particularly in the recovery from the recent floods which I understand you have taken a lead in. Your father-in-law outlined the assistance you rendered and the responsibilities you took on over that. Also, importantly you assisted your younger brother in his development and growth, particularly since you and your wife have looked after him since 2020.
[54] The Crown submits this material makes you a good candidate for parole but does not warrant a separate discount at sentencing. It says the extent of provocation and the conduct of the victim have already been taken into account in adopting a reduced starting point and those factors should not be double counted.
[55] In this case, I do consider a separate discount is appropriate to acknowledge the difficult circumstances you were under at the time of the offending and in recognition of the psychological factors and your low risk of reoffending as well as the capacity for reintegration into society. It is clear you could make a positive impact. I do not consider granting a discount in acknowledging these factors is double counting, as the reductions at the first stage focused on the mitigating factors in relating to the offending, and that included provocation, which as I indicated was spent at the end of the offending. That would have existed irrespective of the identity of the
offender, whereas I am focused here on your particular circumstances relating to your response to those circumstances.
[56] You were under significant pressure at the time of the offending, and, as I acknowledged above, lacked the protective skills necessary to deal with the difficult and disruptive situation without it escalating to the extent that it did. In saying this I do not overlook your previous convictions. However, I focus on your culpability in this case, which I accept was reduced here due to the psychological factors mentioned, as well as your capacity for future reintegration and positive contribution to society. I consider a discount of 10 per cent is appropriate to recognise those factors.
Remorse
[57] Your counsel also requested a discount of five per cent in respect of remorse. However, while the Crown accepts while a small allowance may be justified, it submitted this should be seen in light of a generous guilty plea discount. It is settled law, as the Supreme Court clearly stated in Hessell v R, that where genuine remorse is demonstrated, a discount for remorse should be given separately from that for a guilty plea.20 In this case you demonstrated clear remorse for your actions, evidenced in a number of ways, including your comments to the writer of the cultural report, your motivation to engage in restorative justice, and your letter to the victim, Mr Karangaroa. There were delays in the restorative justice meeting, which was unfortunate, and the victim and his partner declined to engage in restorative justice, which is entirely understandable and their right. However, I consider your remorse in this case is clear and justifies a further discount of five per cent.
Time spent on bail
[58] I turn to time on bail. The Crown submits that in respect of a discount for time on EM bail, the Court should adhere to the seven months indicated in the sentencing indication. The Crown rightly points out by mistake it was overlooked that you were not entitled to bail by virtue of provisions of the Bail Act 2000.21 The Crown says that
20 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
21 Bail Act 2000, s 11 — you should not have been on bail pending your sentencing due to your previous conviction.
as a matter of principle you should not receive what is effectively a second benefit for the time on bail by way of an additional allowance when as a matter of law you were not entitled to it in the first place.
[59] I do consider the Crown makes a point here. You should not have been on bail due to the provisions of the Bail Act.22
[60] However, as it happened, you were released on bail, and your performance while on bail has been without incident and in fact you have contributed to the community, in particular to your in-laws and family who lost virtually everything in the floods and assisting in the clean-up following Cyclone Gabrielle.
[61] There is recent authority for a further allowance for time spent on bail following a sentence indication and guilty plea even where bail was technically given in error. In R v Lacy, Harvey J noted that the defendant had spent some months on EM bail since the sentence indication and he technically should not have been, but “the reality [was]” that further time was spent on restrictive bail and he had been fully compliant with all conditions.23 The Judge therefore allowed a small allowance to acknowledge this and discounted the sentence by a further month.24
[62] In the indication, I considered the appropriate credit for time on EM bail conditions since May 2022 should be determined at sentencing. It was likely to work out to a discount in the region I said of five to seven months. While a glitch in the system was missed by all parties following your guilty plea, as it transpired, by the time you were remanded in custody you had spent 457 days on EM bail without incident, despite the difficult circumstances that you and your family faced from the floods. Ms Cooper has pointed to authorities stating a discount for time spent on restrictive bail conditions may justify a discount of up to 50 per cent of the time spent on those conditions, and she submitted a discount of 15 months may therefore be available to you.
22 Pursuant to s 11.
23 R v Lacy [2022] NZHC 3009 at [33].
24 At [33].
[63] I am not prepared to go that far. However, in the circumstances, given that you have spent further time on restrictive bail conditions, not only without incident or non-compliance but in assisting in the recovery efforts in the region, I consider an additional two months above that indicated in my indication is appropriate. In respect of time on restrictive bail conditions, I therefore grant a discount of nine months.
Overall level of discounts
[64] So overall, the level of discounts I have granted amount to approximately 55 per cent, plus a further nine months for time spent on EM bail. The Crown submits that the total discounts should not exceed in the region of 45 per cent (excluding the EM bail time).
[65] However, given the range of discounts in the detailed information in this case, and the level of discount I have indicated, I need now stand back and make an overall assessment of the sentencing, to consider the overall effect.25 It is important that when added up, the discounts do not lead to a sentence that is not in proportion to the gravity of the offending.26 The statutory purposes of sentencing cannot be lost sight of.27
[66] As it stands, the final end sentence I have reached is a sentence of 40.5 months’ imprisonment. That was, a starting point of nine years’ (or 108 months), one-month uplift, a reduction of 55 per cent and a nine-month further discount for time on EM bail, resulting in that figure, which is three years and 4.6 months. I intend to round up on the whole to a sentence of three years and six months, before I turn to consider whether or not it is in proportion to the gravity of the offending in this case.
[67] The offending in this case was serious. It resulted in Mr Karangaroa suffering lifelong injuries, including a traumatic brain injury. The offending involved a high level of violence that cannot be overlooked in the holistic consideration of the final sentence.
25 McCaslin-Whitehead [2023] NZCA 259 at [61]; and Dickey v R [2023] NZCA 2 at [175].
26 At [61].
27 Dickey v R, above n 25, at [175].
[68] At the same time I have recognised the circumstances affecting you. The incident took place in a highly stressful and charged environment. You were also dealing with grief and the difficulties from your childhood upbringing and other personal circumstances, including with alcohol. You have what appears to be a positive future ahead of you, in which you can contribute meaningfully to society. This is despite considerable disadvantages that you have overcome and the fact you have taken on responsibility for others, including your younger brother, who appears to have flourished under the care of you and your wife.
[69] It does not take away from the fact, the offending was serious, and it must receive a condign response. An imprisonment is inevitable. Standing back and considering this sentence against all the relevant material and circumstances in this case, I do not consider the sentence I have reached is not in proportion with the gravity of the offending. It is appropriate to recognise the gravity of the offending but also the other factors to which I have referred.
Minimum period of imprisonment (MPI)
[70] Because the sentence being imposed is of more than two years’ imprisonment, I am required to consider whether the Court should order that you serve a minimum period of imprisonment to hold you accountable for harm done, to denounce the conduct, to deter the offender and protect the community.28 The central consideration is your level of culpability.29
[71] I am satisfied the sentence I have reached holds you accountable for the harm done, it denounces the conduct and will deter you and others from such conduct. In respect of the protection of the community, although the offending in this case was serious, it is clear from all the material I have before me that there is no such risk to the community (on the basis of the reports) if you are released after the default minimum one-third of the length of your sentence. A higher MPI is not necessary.
28 Sentencing Act, s 86(2).
29 R v Brown [2002] 3 NZLR 670 (CA) at [32].
Sentence — Harland Ormond
[72] So I now turn to address the appropriate sentence for you, Harland. As noted, in the sentence indication I indicated a starting point of two years and two months’ imprisonment, with a 20 per cent discount for guilty plea and further discount to be added for your youth and other appropriate adjustments. The end sentence reached was 20.8 months.
Submissions of the parties
Defence submissions
[73] I have heard submissions from Mr Clarke on your behalf who has submitted that in addition to the 20 per cent discount for your guilty plea, a discount is appropriate to reflect your still young age, and a discount of around 18 to 20 per cent in respect of your personal circumstances and what it described in your reports as your “profoundly dysfunctional upbringing”. I have read the s 27 report that was provided for you as well, which reflects a similar upbringing to that which Ryan had. Mr Clarke also submitted for you that it is appropriate to provide a further discount of about five per cent because of remorse.
Crown submissions
[74] The Crown says in addition to the 20 per cent discount for guilty plea, Mr Blaschke accepts a small allowance for your youth is appropriate, as well as an allowance for your willingness to express remorse at a restorative justice hui. The Crown submits an allowance of 20 per cent would also be appropriate to take account of your background and upbringing.
Sentencing indication.
[75] In the sentencing indication I noted the aggravating factors were multiple attackers, an attack to the head and serious injury.
[76] The mitigating factors were excessive defence of another and provocation, as well as the fact that Harland had tried to stop Ryan from inflicting further harm on the
victim following the initial incident, which may well have prevented the situation becoming much worse. I noted that there was heightened emotional distress for both you and Ryan, you had been drinking and you had been mourning the immediate loss of your father. Which goes some way to explain your actions.
[77] Nevertheless, I noted that, Harland, your conduct resulted in serious and significant injuries, although it was not a situation involving high level of a prolonged period of violence by you. I therefore took an appropriate starting point at the top end of band three — three years’ imprisonment. Following the various uplifts and deductions I concluded a starting point of two years two months, or 26 months, was appropriate. At the second step, I took into account previous offending but did not provide an uplift for that. At the same time, no allowance was allowed for good character. I took into account your youth at the time, noting an allowance may be appropriate for that later.
[78] I concluded with the discount of 20 per cent for the guilty plea to reach an end sentence of 20.8 months, by way of imprisonment. I considered that was proportionate to the gravity of the offending, indicating this may be a case for home detention.
Discounts in this case
[79] Counsel, Mr Clarke and Mr Blaschke, are broadly in agreement as to the discounts you should receive.
[80] In my view, you are entitled to a 20 per cent discount for your guilty plea, as I indicated in my indication.
[81] Your upbringing I am informed by the cultural report, was much like your brother Ryan’s. It was dysfunctional, with socio-economic deprivation as well as early exposure to drugs and alcohol and violence. You were similarly dealing with grief at the time of the offending with the loss of your father. The Crown accepts the causal nexus of this and other factors in relation to your offending. Your mum also appeared on your behalf today to take responsibility for your background, as I have indicated earlier. I consider a discount of 20 per cent is appropriate to take into account the impact of your upbringing and personal circumstances on your offending in this case.
[82] You were only 24 years old at the time of your offending. You are entitled to a discount of five per cent for your youth and rehabilitative prospects as well.
[83] Although the restorative justice hui did not ultimately go ahead, I commend your willingness to take part in such a hui and to take responsibility for your actions and apologise to the victim. I will grant you the same discount for that as I did for Ryan, a discount of five per cent.
Sentence calculation
[84] So that results in an overall end sentence of 13 months’ imprisonment. In terms of totality, I consider this total sentence is proportionate to the gravity of your overall offending because of your role in this offending.30
[85] As I indicated, this will be converted to a sentence of home detention. I remain of that view as I am satisfied home detention is appropriate in this case as the least restrictive outcome available in the circumstances, and I am satisfied the purposes and principles of sentencing are met by such a sentence in this case.
[86] I note that you are facing unrelated charges and have been given EM bail to a specified address. I have seen that EM bail report for the proposed address and relevant occupants’ consent. The Crown acknowledges that while this recent offending is serious, it has not yet been proved and should not disentitle you to home detention. I agree. The address is suitable for you to serve your home detention there.
[87] In terms of the length of your sentence of home detention, the Crown considers, having regard to the serious nature of the offending in this case, and the “considerable benefit” of a home detention sentence, the length of the sentence should not be half of the notional end sentence, but should be nine to ten months. Your counsel made no submissions as to the length of the sentence, but made strong oral submissions about taking into account all the appropriate personal factors.
30 Sentencing Act, s 85.
[88] As I noted in my sentence indication, determining the appropriate sentence of home detention is not a mathematical assessment but an evaluative exercise. I note the final sentence imposed must be a sentence which meets the purposes and principles of sentencing. In this case, I note that while your involvement in the offending was less than that of your brother, nevertheless there was still grave offending which could have resulted in the victim’s death and has left Mr Karangaroa with lifelong injuries and disabilities.
[89] I consider the sentence which best meets the purposes and principles of sentencing in this case is a sentence of ten months’ home detention.
Sentences
[90]Would you please stand, Mr Ryan Ormond and Mr Harland Ormond.
[91] Mr Ryan Ormond, on the charge of wounding with intent to cause grievous bodily harm, you are sentenced to three years and six months’ imprisonment.
[92] Mr Harland Ormond, on the charges of injuring with intent to injure, and attempting to pervert the course of justice, you are sentenced to ten months’ home detention at the address specified in the EM bail report, and on the usual conditions. I also impose on you the usual six months post-detention standard conditions.
Addendum
[93] Counsel have agreed to amend the home detention order imposed on Mr Harland Ormond on 8 September 2023 to include the following conditions:
(a)to travel directly to [the home detention address as set out in the report] and wait there until your home detention connection is completed;
(b)to remain at [the home detention address] at all times unless an absence has been authorised by a probation officer;
(c)to reside at [the home detention address] and not move to any new residential address without the prior written approval of a probation officer;
(d)not to possess, consume or use any alcohol or drugs not prescribed to you; and
(e)to attend an assessment for any counselling, course or programme, including violence prevention and undertake and complete any counselling course or programme that may be recommended as directed by the probation officer.
Grice J
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