R v Ormsby
[2022] NZHC 1711
•15 July 2022
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI 2020-019-005265
[2022] NZHC 1711
THE QUEEN v
MICHAEL ORMSBY
Hearing: 15 July 2022 Appearances:
R L Mann for the Crown
J J Rhodes for Mr Ormsby
Sentencing:
15 July 2022
ORAL SENTENCING NOTES OF VAN BOHEMEN J
Solicitors:
Crown Solicitor, Hamilton
J J Rhodes, Barrister Auckland
R v ORMSBY [2022] NZHC 1711 [15 July 2022]
Introduction
[1] Mr Ormsby, you appear today for sentencing having pleaded guilty on 8 June 20221 to a charge of possessing cannabis for sale2 and a representative charge of money laundering.3
[2] The maximum penalty is eight years’ imprisonment for the cannabis charge4 and seven years’ imprisonment for the money laundering charge.5
[3] You face three other charges: for conspiring to supply methamphetamine,6 for participating in an organised criminal group7 and for failing to carry out obligations in relation to a computer system search.8 The Crown has not offered evidence on those charges and invites me to dismiss them under s 147 of the Criminal Procedure Act 2011. I do so accordingly.
[4] My responsibility today is to sentence you for the two charges to which you have pleaded guilty.
[5]This is the process I will follow:
(a)First, I will outline the circumstances of your offending.
(b)Secondly, I will consider your personal circumstances relevant to the sentence.
(c)Thirdly, I will explain the approach to setting the sentences and discuss the requirements of the Sentencing Act 2002 as they apply in this case and in accordance with decisions of the Court of Appeal.
(d)Finally, I will impose the sentence I consider appropriate.
1 R v Ormsby HC Hamilton CRI-2020-019-5265, 8 June 2022.
2 Misuse of Drugs Act 1975 s 6(1)(f).
3 Crimes Act 1961, s 243(2).
4 Misuse of Drugs Act 1975, s 6(2)(c).
5 Crimes Act 1961, s 243(2).
6 Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2A)(a). Maximum penalty 14 years’ imprisonment.
7 Crimes Act 1961, s 98A. Maximum penalty 10 years’ imprisonment.
8 Search and Surveillance Act 2012, s 178. Maximum penalty three months’ imprisonment.
The offending
[6] Mr Ormsby, you were charged in relation to Operation Gulfport, a Police investigation into the manufacture and supply of methamphetamine in the Waikato region. The investigation identified an organised criminal enterprise involved in the large-scale manufacture and distribution of methamphetamine in the Waikato.
[7] You and your co-defendants, Mr Heller and Mr Smith, were identified as the leaders of the operation. You, a senior member of the Mongrel Mob Waikato chapter, were identified as the financier. You sat above the others and allowed them to undertake the day-to-day activities relating to the manufacture and supply of methamphetamine. You were able to distance from yourself from the manufacture and dealing, while profiting from the operation.
[8] Your conviction for possession of cannabis for supply relates to a search warrant executed by Police at your home address on 3 December 2020. In your bedroom they located a backpack holding $30,000 cash and 27.6 grams of cannabis in a large container.
[9] Your conviction for the representative charge of money laundering relates to analysis of data obtained throughout Operation Gulfport. Police identified that between 1 January 2017 and 3 December 2020 you laundered cash you had derived from selling methamphetamine and cannabis in the amount of $164,891.33. Specifically, you laundered money through various companies by spending large amounts of cash.
Personal circumstances
[10] I now address your personal circumstances relevant to your offending, drawing on the Department of Corrections’ pre-sentence report, the cultural report prepared in accordance with s 27 of the Sentencing Act 2002 and your letter of remorse.
[11] The pre-sentence report was prepared on the basis of an interview with you on 17 June 2022. It does not contain a lot of detail. The cultural report prepared by Ms Shelley Turner was based on a virtual meeting room interview with you and
another interview of your partner, Stevie-Jo. It contains considerably more detail than the pre-sentence report and I find it of assistance.
[12] Mr Ormsby, you are 39 years old. You were born in and have spent most of your life residing in Hamilton, though you spent short periods as a child with whānau in other Waikato towns like Tahaaroa and Rāhui Pōteka (Huntly).
[13] You are Māori through your mother. The cultural report reproduces your pepeha. You are of Taupiri, Waikato, Tainui, Ngāti Mahuta and Waahi Paa.
[14]You never met your father and know nothing about him.
[15] Despite being raised in your tribal rohe, you lived in an urban centre, which limited your engagement with your Māori heritage and contributed to your cultural deprivation. You typically attend your marae only for tangihanga. The last time you did so was for your brother Taawhiao’s tangihanga in 2020.
[16] You say your urbanisation pushed you to a life of crime with the Mob. You saw your family as “poor and down and out”, whereas the Mob was “hardcore.” so you joined.
[17] The report notes that cultural deprivation is not unique to you and your family. It is an intergenerational pattern. Overall, you feel very disconnected from te ao Māori. Your partner Stevie-Jo also believes that this was what led you to join the Mob.
[18] You have five children. The youngest two, you have with Stevie-Jo, with whom you have been in a relationship for seven years.
[19] The cultural report highlights your father’s absence as underlying your life narrative. You were raised by your solo mother until you were seven, when your stepfather Paul entered the picture.
[20] You experienced childhood poverty. You consider this to be a primary cause of your youth offending. You did not want to struggle in the way you saw Māori around you struggle. This drew you away from whanaunga and te ao Māori.
[21] You had a negative experience at school, as do many Māori. You left school at 13, with no formal qualifications. You saw the criminal lifestyle as your most viable avenue to financial gain and “success.”
[22] You were a victim of both sexual and physical abuse as a child. The cultural report says these were significant sources of childhood trauma for you.
[23] The cultural report discusses your family gang affiliations. Your older brothers joined the Mob ahead of you. Taawhiao was an “on and off” Mob member until he passed away. Sarge remains a member. An older cousin is also a Mob member and was a role model in the absence of a father. Both your brothers have been incarcerated, and your cousin has served a life sentence. Your sister Karsh has also been caught up in serious criminal offending.
[24] You have had substance abuse issues. You started with cannabis to cope with day-to-day life and your anxiety. The report says you view cannabis as a type of rongoā, or medicinal practice. Because of that cultural viewpoint, you assign very little moral value to your involvement in the supply or use of the drug.
[25] Your mother and stepfather were alcoholics. Alcoholism has been normal across your family. Your older brothers supplied you with early tastes of alcohol and cannabis.
[26] You turned to alcohol some ten years ago, and the abuse worsened over time. You say that was heavily tied to your offending: “most of it was drunk.” You tried cannabis for the first time aged 10. By age 16, you were using it daily. You were off it for a time but relapsed aged 34 until your most recent arrest. The report says that habitual use contributed to your involvement in the supply of the drug.
[27] You say you are remorseful for your offending. You say you were driven by greed and success. You have written a letter of remorse. You outline the steps you have been taking to rehabilitate yourself. You have engaged with tikanga Māori, addressed your anger management issues and completed courses in numeracy and literacy.
[28] Stevie-Jo says your children are the driving force in your efforts to rehabilitate. She says you are an amazing father and have a close relationship in particular with your daughter Addison. She believes you would benefit greatly from cultural reconnection.
Approach to sentencing
[29] In sentencing you, Mr Ormsby, I must take into account the purposes and principles of sentencing as set out in the Sentencing Act. In particular, I must impose on you a sentence which holds you accountable for the harm your offending, particularly in relation to methamphetamine dealing, does to the community, promotes in you a sense of responsibility for and acknowledgement of that harm, denounces your conduct, and deters you and others from committing similar offences in the future. The sentence must also reflect the gravity of your offending, the seriousness of this type of offending and the desirability of consistency with appropriate sentencing levels.9
[30] On the other hand, I must be mindful of the need to assist in your rehabilitation and reintegration into the community and I must impose the least restrictive outcome that is appropriate in the circumstances.10
[31] I must also take into account your personal, family and cultural background. In considering that background, I must take into consideration the report prepared in accordance with s 27 of the Sentencing Act, unless satisfied there is some special reason that makes this unnecessary or inappropriate.11
[32] As set out by the Court of Appeal in Moses v R, there are two stages to sentencing:12
(a)First, I must determine the appropriate starting point, adjusting for any aggravating and mitigating features of the offending itself.
9 Sentencing Act 2002, ss 7(1)(a), (b) and (e).
10 Sections 7(1)(h) and 8(g).
11 Sections 8(i) and 27(2).
12 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
(b)Secondly, I must adjust that starting point for any aggravating and mitigating circumstances relevant to you personally and for your guilty pleas.
[33] In addition, I will consider whether to impose a minimum period of imprisonment.
[34] In your case, Mr Ormsby, my task has been more straight-forward. At your request, in May this year Downs J provided you with a sentencing indication.13 You did not accept that indication because you disputed the discount indicated for your guilty pleas. However, your counsel and the Crown agree I should adopt the approach to starting point and uplifts taken by Downs J in that sentencing indication.
[35] I record that I agree with the approach taken by Downs J for the reasons he gave.
[36]On that basis:
(a)I adopt a starting point of four years’ imprisonment for the money laundering charge;
(b)I impose an uplift of six months’ imprisonment to reflect the possession of cannabis for sale charge; and
(c)I impose a further uplift of four months’ imprisonment to reflect your relevant previous convictions for methamphetamine and cannabis related offending.
[37] This results in an adjusted starting point of four years and 10 months’ imprisonment.
13 R v Ormsby [2022] NZHC 1260.
Mitigating personal circumstances
[38] In stage two of the sentencing process, I adjust the starting point to take into account your guilty plea and any aggravating and mitigating personal circumstances.
Guilty pleas
[39] You did not enter your guilty pleas at the earliest opportunity. Your trial was scheduled to commence on 20 June this year. You pleaded guilty only twelve days before, on 8 June. Usually, that would mean a discount of 25 per cent is not available.
[40] The Crown acknowledges, however, that there should be parity in the approach taken to sentencing you and your co-defendants. At their sentence indications on 1 April 2022, Mr Heller and Ms Timoko were advised they would receive 25 per cent discounts if they entered guilty pleas.14 The Crown does not dispute that a consistent approach would result in your receiving the same discount. I agree, even if the result is generous.
[41]Accordingly, I apply a discount of 25 per cent for your guilty pleas.
Remorse and efforts at rehabilitation
[42] I have taken account of your letter of remorse. I accept that you had no specific victims to whom you could express such remorse. However, your remorse is really taking responsibility for your actions. That does usually merit a separate discount.
[43] I have also taken account of your efforts at rehabilitation and your counsel’s comments about the limited opportunities to engage in rehabilitative courses in prison.
[44] I take these matters into account in my consideration of whether a discount is warranted for the issues canvassed in the cultural report.
14 R v Heller [2022] NZHC 663; and R v Timoko [2022] NZHC 661.
Section 27 cultural report
[45] As I have set out earlier, you have had a difficult upbringing. You did not know your father. You were Māori living in your traditional rohe. But you were urban Māori and not engaged with whanaunga and te ao Māori. Like many others in your circumstances, you suffered from fractured family relationships, child poverty and child abuse. You struggled at school and began to use alcohol and drugs. You gravitated towards the Mob because that was where your siblings were, and it offered a sense of belonging and the prospects of power and success – and criminality.
[46] In all these respects, I accept that cultural and social dislocation had a causative connection to your later offending, particularly in relation to your membership of the Mob. At the same time, I consider that it would be both formulaic and inconsistent with your mana not to recognise that this current offending was also the direct consequence of choices that you made as an individual. Not every Māori male who suffered deprivation of the kind you experienced ended up in the Mongrel Mob, in a senior position and with the wit and power to position themselves to profit while others were exposed to greater risks.
[47] In these respects, money laundering and possession of a large amount of cannabis for the purposes of supply are different from the kind of impulsive offending that was present in Solicitor-General v Heta, where cultural deprivation of the kind you experienced, together with other factors, was recognised as justifying a discount as high as 30 per cent.15 For these reasons, I do not agree with Mr Rhodes’ submission that I make a further discount to your sentence of 25 - 30 per cent.
[48] In the circumstances of your history and your offending, I am satisfied that a discount of 12 per cent is appropriate.
15 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 3270.
End sentence
[49] This results in a total discount of 37 per cent or 22 months on the adjusted starting point of four years and 10 months’ imprisonment. The result is an end sentence of three years’ imprisonment.
Minimum period of imprisonment
[50] Under s 86 of the Sentencing Act, I may impose a minimum period of imprisonment if I am satisfied that the non-parole period for your sentence under s 84(1) of the Parole Act 2002 is insufficient to hold you accountable for the harm to the community from your offending or to denounce your conduct, or to deter you and others from committing similar offending.16
[51] In Chai v R, the Court of Appeal observed that a minimum period of imprisonment may be expected in cases of recidivist or commercial methamphetamine dealing.17 While you are not charged with methamphetamine dealing, your money laundering activities were directly related to that activity.
[52] Without a minimum period of imprisonment, the non-parole period on your sentence would be one years’ imprisonment. There can be no guarantee, of course, that you would be granted parole at that point. I am satisfied, nonetheless, that a non- parole period of one year would be insufficient, having regard to the considerations of accountability, denunciation and deterrence and to the observations of the Court of Appeal in Chai.
[53] For these reasons, I consider a minimum period of imprisonment of one year and six months’ imprisonment or 50 per cent of the term of your sentence to be appropriate.
Sentence
[54]Mr Ormsby, please stand.
16 Sentencing Act, s 86(2).
17 Chai v R [2020] NZCA 202 at [39].
[55] On the charges of money laundering and possession of cannabis for sale, I sentence you to a term of three years’ imprisonment.
[56] I also impose a minimum period of imprisonment of one year and six months or 50 per cent of the term of your sentence.
G J van Bohemen J
3
0