R v Ormsby
[2023] NZHC 2154
•11 August 2023
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2022-070-1363
[2023] NZHC 2154
THE KING v
HAIMONA ANTONIO JORDAN ORMSBY
Counsel: D J McWilliam for Crown N M Dutch for Defendant Sentenced:
11 August 2023
Charge:
Wilfully attempting to pervert the course of justice
Plea:
Guilty
SENTENCING NOTES OF BREWER J
Solicitors/Counsel:
Pollett Legal Ltd (Tauranga) for Crown Nicholas Dutch (Tauranga) for Defendant
R v ORMSBY [2023] NZHC 2154 [11 August 2023]
Introduction
[1] Mr Ormsby, I have to sentence you on the charge of wilfully attempting to pervert the course of justice.1 That is the charge to which you have pleaded guilty.
[2] I am going to talk about the sentence first and, when I get to the end, I will get you to stand and I will impose the sentence.
[3] You entered your plea after I gave you a sentence indication on 11 May 2023.2 You accepted the indication on the understanding that the additional charge of conspiring to pervert the course of justice has been withdrawn — as indeed it should have been withdrawn because there was no allegation that would sustain it. I will not repeat the factual background to your offending. It is set out in the sentence indication I gave you, and I will attach a copy of the sentence indication to my sentencing notes and it will be part of your sentence.
[4] In summary, you willingly took possession of your brother’s gang patched vest and shoes — which you knew were worn during a violent homicide. You also knew that police wanted to test the clothing and you agreed to store the items to prevent that. When your brother, shortly afterwards, told police that you were in possession of his clothing, the two of you discussed wiping down the vest to dispose of any evidence. You did not do that, and the police shortly after contacted you and came and collected the items from you.
The sentence indication
[5] I adopted a starting point of 18 months’ imprisonment. I indicated that you would be eligible for some discount for pleading guilty. But I explained that I would not provide the full 25 per cent discount for that. I also indicated that you may be entitled to credit for other mitigating factors identified at sentencing, and I will now discuss them.
1 Crimes Act 1961, s 117(e): maximum penalty seven years’ imprisonment.
2 R v Ormsby [2023] NZHC 1119.
Additional mitigating factors
[6] First, Mr McWilliam for the Crown submits that I should sentence you to seven months’ home detention, allowing a three months (or 17 per cent) reduction for your personal factors. In particular, your plea of guilty. At the time Mr McWilliam made that recommendation he had not seen your s 27 cultural report.
[7] Mr Dutch, who relies heavily on your s 27 report and the pre-sentence (PAC) report, recommends that I should be sentencing you to a term of community detention plus supervision.
[8] Mr Ormsby, I have read the s 27 report carefully, and it is consistent with your PAC report. I acknowledge that life has not been easy for you. You had a difficult upbringing that involved deprivation and abuse. It says a lot about the way that our society has let children be brought up in abusive homes that I can say that I have read far worse s 27 reports than the one that describes your upbringing. I do not minimise your upbringing, but I was not surprised to learn that in your early school days you were doing very well; that you were seen as bright and intelligent; you were a good sportsman; and, again, I am not surprised that things started going badly for you at high school when the group of kids you were associating with went completely antisocial and you went along with them.
[9] As a result, you were exposed to the influence of gangs and you are a patched member of the Mongrel Mob. You have a history of offending that most recently includes convictions for assault and breaching community work.
[10] As you heard, I am worried that you still have loyalty to the Mongrel Mob. I appreciate that in your upbringing you have seen positive aspects of the Mongrel Mob, but if you had sat where I have sat for the number of years that I have sat you would realise that those positive aspects are overwhelmingly buried beneath the negative ones. I hope you will come to see that this is not a positive association for you.
[11] I am prepared to give you discounts for the factors identified in the cultural report. I am satisfied that there is a causal nexus between your personal history and this offending, and I will allow you a discount of 15 per cent.
[12] You will also receive a 15 per cent discount for your guilty plea. It was made late and the evidence against you was overwhelming.
[13] Therefore, the 18 months starting point is reduced by 30 per cent, to an end sentence of 12 months’ imprisonment.
[14] The author of the PAC report assessed your risk of reoffending and harm to others as low, and the author recommends a sentence of community detention and supervision. The author recommends special conditions to require you to attend specific programmes which might be of benefit to you.
Sentence
[15] Mr Ormsby, the maximum penalty for attempting to pervert the course of justice is seven years’ imprisonment. It is offending of a type which has the potential to undermine our system of justice. You have just heard Mr McWilliam talking about the brutal killing of Mr Te Kani and how your offending was related to trying to stop justice being done in that case. So, it is offending of a type which would normally mean, particularly having regard to your status as a patched member of the Mongrel Mob, that I would sentence you to imprisonment.
[16] I do take into account that it was your brother who came to you with those items and that your assistance to him was as much, if not more, because of your relationship with him as it was to his membership of the Mongrel Mob.
[17] I am not going to sentence you to imprisonment. The main reason why is the, in my experience, extraordinary fact that you have used your skills as a chef to win the contract to take over the restaurant at the Whakatane RSA. You employ nine staff and you work six days a week, usually from 9 am to 10 pm, Monday to Saturday (and at times you work Sundays).
[18] You are also in a stable 12-year relationship with your partner with whom you have four young sons. You are very involved with them, including coaching the Kawerau Sports Junior Under-10s rugby team on Tuesdays and Thursdays. That tells
me, Mr Ormsby, that you are doing your best to be a better father for your sons than your father was to you.
[19] Your criminal record is not as bad as many I have seen, and it does not show you to be an entrenched criminal. You do seem to have an anger management problem, though.
[20] In short, I have decided that in your case I should give you a chance to continue the path of rehabilitation you have recently chosen. Mr Ormsby, I do that knowing that you offended violently as recently as 2021, for which you were sentenced to 200 hour’s community work. So, I take a risk, and I know that I take that risk on behalf of the community. But I do so because if you can just carry on with this new life of yours then your life, the lives of your family members, particularly the lives of your sons, and the interests of the community will be so much better.
[21] I consider a sentence of community detention and supervision to be the least restrictive outcome applicable to your case. I am satisfied that supervision will reduce the likelihood of further offending by you, by helping you with rehabilitation and reintegration.
[22] Mr Ormsby, I sentence you to six months’ community detention to be served at 49 Newell Street, Kawerau. You are to observe a curfew of 10 pm to 8 am on each day of the week, Monday through Sunday. The first curfew will apply today, 11 August 2023. I also sentence you to nine months’ supervision, with the following special conditions:
(a)To attend and complete an appropriate Tikanga programme to the satisfaction of a probation officer. The specific details of the programme shall be determined by a probation officer.
(b)To attend and complete appropriate counselling/treatment programmes to the satisfaction of a probation officer. The specific details of the appropriate programme or programmes shall be determined by a probation officer.
[23]You may stand down.
Brewer 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
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2022-070-1363
[2023] NZHC 1119
THE KING v
HAIMONA ANTONIO JORDAN ORMSBY
Hearing: 11 May 2023 Counsel:
L G Mulder for Crown
N M Dutch for Defendant
Judgment:
11 May 2023
SENTENCE INDICATION OF BREWER J
Solicitors/Counsel:
Pollett Legal Ltd (Tauranga) for Crown Nicholas Dutch (Tauranga) for Defendant
R v ORMSBY [2023] NZHC 1119 [11 May 2023]
Introduction
[24] Mr Ormsby, you have asked for a sentence indication on two charges (charges 14 and 15) which I am invited to view as combined as a representative charge.
[25] I am not going to do that. Charge 14 is a charge of wilfully attempting to pervert the course of justice and charge 15 is conspiring to pervert the course of justice. They relate to separate parts of the same incident. They cannot be combined as a representative charge as a matter of law. Further, neither the particulars of the conspiracy charge nor the agreed summary of facts contains an allegation that you reached any agreement with your alleged conspirator, Mr Ratahi. Without agreement, there is no basis for a charge of conspiracy. So, this sentence indication will relate to charge 14.
The offending
[26] A Mr Te Kani was murdered. Allegedly by members of the Mongrel Mob gang. You are a patched member of the gang but you were not involved with the Te Kani homicide.
[27] On 18 May 2022, another member of the gang, Mr Ratahi, made arrangements for you to store his gang patched vest and the shoes he was wearing at the time of the homicide. You knew the police wanted to test these items and you agreed to store them to prevent the police getting them. You knew this was in relation to a violent murder.
[28]You took possession of the items.
[29] Later, on the same day, Mr Ratahi was interviewed by the police. During the interview he told the police that you were in possession of these items. After he left the Police Station, Mr Ratahi telephoned you and informed you that the police now knew that you had the gang patched vest. He told you the police would probably want it for DNA examination purposes and discussed wiping it down to dispose of any evidence.
[30] The police also telephoned you that day to make arrangements for the police to pick up the items you were storing. The next day, because the police had not come to collect the items, you contacted the Tauranga police wanting to know why the police had not yet come. Later that day the police came to your home and collected the items.
Discussion
[31] The maximum sentence for attempting to pervert the course of justice is seven years’ imprisonment.
[32] The Crown, in its written submissions, submits that a starting point of two years’ imprisonment is appropriate. However, today, Ms Mulder, reflecting on the fact that Mr Ratahi is in fact your full brother, has reduced the starting point contended as appropriate by the Crown to one of around 18 months’ imprisonment. Mr Dutch, for you, submits that that is far too high and that a starting point of no more than 12 months’ imprisonment would be appropriate.
[33] I have looked at the other cases to which I have been referred and I have also looked at another case, R v Jones.3 I have not found the other cases particularly helpful because the fact situations are so different to your own.
[34] In my view, I should take into account the following features of your alleged offending:
(a)It was in a gang context. This is the most significant factor. You, as a patched gang member, agreed to help a fellow patched gang member frustrate a police investigation. However, I accept that this factor is reduced in significance because Mr Ratahi is your full brother and therefore the family relationship made an impact on your decision- making.
(b)This was in the context of a violent murder.
3 R v Jones [2018] NZHC 984.
(c)Your attempt to pervert the course of justice was unsuccessful only because Mr Ratahi told the police you had the items. I disagree that you are entitled to credit for telephoning the police on 19 May 2022. By that time, you knew that the police knew you had the items and they had already been in contact with you. You knew Mr Ratahi had told the police about you.
(d)I accept that the concealment of evidence is not as blameworthy as using threats or intimidation to prevent others from giving evidence.
[35] Under these circumstances, I think that the Crown’s suggested starting point of 18 months’ imprisonment is about right. I will adopt it.
[36] If you enter a plea of guilty, I cannot predict the extent (if any) the starting point would be increased or reduced to take account of your personal circumstances. An account of those circumstances would only be made available to the sentencing Judge, and I cannot guess what they will be.
[37] I do say that you would be eligible for some discount for pleading guilty. The suggestion that the full 25 per cent would be available because you had earlier expressed a willingness to plead guilty would not be accepted by me. The offence with which you are charged was allegedly committed a year ago. Your willingness to enter a plea is still conditional upon a favourable sentence indication.
[38] Further, any discount must take into account the strength of the evidence against you. Given your conversations with the police, the evidence is very strong indeed.
Decision
[39] Mr Ormsby, I indicate a starting point of 18 months’ imprisonment. Personal factors might increase or reduce that starting point.
[40] The indication that I have just given will have effect until 5 pm on 18 May 2023.
Brewer J
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