R v Ormsby
[2016] NZHC 2220
•20 September 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-092-13432 [2016] NZHC 2220
THE QUEEN
v
WIREMU ORMSBY
Hearing: 20 September 2016 Appearances:
Y V Yelavich for Crown
H B Leabourn for DefendantSentence:
20 September 2016
SENTENCING REMARKS OF LANG J
R v ORMSBY [2016] NZHC 2220 [20 September 2016]
[1] Mr Ormsby, you appear for sentence today having pleaded guilty to the charge of manslaughter. That charge carries a maximum sentence of life imprisonment.
Background
[2] The charge was laid after an incident that occurred on the afternoon of
18 July 2015. At that time your elder brother was living in a boarding house in South Auckland. On the afternoon of 18 July 2015 he was not present at the address, but your younger 16 year old brother was there. Other persons were also in the room.
[3] During the course of the afternoon, the people in the house were visited by the victim in this case. He visited and began talking to the people in the address. It appears that they took exception to the way in which he was acting and things he was saying. He led them to believe that he had earlier been involved in an incident involving violence, and there is a suggestion that a cut that was later found on his lip was already there when he arrived at the address.
[4] Your younger brother took exception to the presence of the victim. He sent you a text message saying words to the effect that there is a “tuff drunk guy here”. A short text message exchange then occurred, during which you made it clear that you were going to come to the address. You asked directions, and you were told where to go and how many people were in the room. You then went to the address with a metal bar concealed in your clothing. The summary of facts refers to a wooden bat or metal bar, but your counsel confirms today that I can proceed on the basis that it was a metal bar as you told the probation officer who prepared the pre-sentence report.
[5] Virtually as soon as you arrived in the room you took out the metal bar and attacked the victim about his head. It is clear from the pathologist’s report that you struck him several blows about the head. This caused him to fall to the ground. You immediately left the room with your brother. You were not to know what would occur shortly after you left.
[6] Shortly after you left the room, the victim tried to stand up. In doing so he fell against another person in the room who was an associate of yours. The victim and the other person then fell to the floor. At that point your associate began to strangle the victim, and he did so until the victim lost consciousness. Shortly after that, he died.
[7] The pathologist’s report that was prepared following the post-mortem makes it clear that there was a combination of causes of death. The immediate cause, or the mechanism that caused death, was asphyxiation. That was clearly the act carried out by your associate after you had left the room, and no responsibility can be sheeted home to you for that. Secondly, the pathologist’s report advises that the victim’s intoxication was also a contributing factor, because it led to him losing consciousness earlier and being unable to support his breathing. Again, you cannot be held responsible for that.
[8] However, one of the contributing causes was the fact that the injuries that you inflicted caused the victim to lose consciousness earlier than he would otherwise have done. This meant that death ensued more quickly. The post-mortem examination showed a number of bruises around the head. Of more significance is the fact that microscopic haemorrhages were found on the brain. These were caused by the blows that you struck to the victim’s head with the metal bar. It is not possible to say now what ultimate effect those injuries would have had, because the onset of death meant that the victim’s brain did not swell. It is clear, however, that these were significant injuries and ones that would have had lasting effect had the victim lived. They also, as I have said, contributed to his death, as you accept by your guilty plea to the charge of manslaughter.
Sentencing Act 2002
[9] In any case involving the taking of a human life, issues of deterrence, denunciation and the need to hold the offender accountable are to the fore. In reality, the only sentence that can be imposed is one of imprisonment. The real issue for the Court is the length of sentence to be imposed having regard to all relevant factors and sentences imposed in broadly similar cases.
[10] I have also had the benefit today of having had read to the Court three victim impact statements. They were from the victim’s partner, his mother and his older sister. They describe, in measured and yet tragic terms, the effect that your offending has had so far as this family is concerned. They have lost a loved son, brother and partner. Your actions have left two young boys without a father. The effect of their father’s death is still having traumatic effects for them. As yet, they do not even know that their father was a victim of the mindless violence that you inflicted. They have yet to have that news given to them.
[11] What is absolutely clear as the result of the victim impact statements is that your offending will have a major and lasting effect on this family. They will never recover from your actions on 18 July 2015.
Starting point
[12] The first issue I need to consider is the starting point to be applied in respect of your offending. This is the sentence that would be appropriate having regard to all the relevant factors relating to the offence itself and not to you personally.
[13] In cases involving manslaughter there is no tariff or guideline judgment by our Court of Appeal because the offence of manslaughter can be committed in many different ways. The Court of Appeal has advocated an approach under which the courts examine other similar cases. In cases involving the intentional infliction of really serious bodily harm, the Court of Appeal has also indicated that sentencing Judges may have regard to guidelines in respect of the charge of intentionally causing grievous bodily harm. Those guidelines are contained in a decision of the
Court of Appeal called R v Taueki.1
[14] There can be no doubt that your offending involve the infliction of grievous bodily harm. For that reason I consider an appropriate approach is to ascertain what the starting point would have been had your victim lived and been the victim of an
attack involving the infliction of intentional really serious bodily harm. I will then
1 R v Taueki [2005] 3 NZLR 372 (CA).
ascertain the extent to which that starting point should be increased to reflect the fact that the victim in your case died.
[15] Counsel have referred a number of cases to me.2 They are of only limited assistance because, virtually without exception, they involve incidents in which the victim has been punched and/or kicked to the point where he or she has suffered fatal injuries.
[16] The offending in your case is somewhat different. It involved your determined decision to become involved in an incident that had nothing whatsoever to do with you other than the presence of your younger brother. You then armed yourself with a metal bar and went to the address with the obvious intention of sorting out the person who had arrived at the address. Once you entered the room, you immediately attacked that person by inflicting several blows on his head with a metal bar. The infliction of those blows then led to the victim suffering the injuries to which I have already referred.
[17] In R v Taueki, the Court of Appeal referred to factors that can operate to render offending involving the infliction of serious bodily harm more culpable. One of these is premeditation.3 As I have said, your acts were premeditated because you took the text message from your brother to be a signal that you should involve yourself in something that had nothing to do with you. The fact that you armed yourself with a weapon and went directly to the address is further evidence of premeditation. Another aggravating factor can be the use of a weapon.4 In this context you used a metal bar as a weapon, and this operates to increase the seriousness of your offending. Thirdly, you were prepared to use the weapon to inflict several blows to your victim’s head. Again, that is another aggravating factor
identified in Taueki.5
2 R v Tai [2010] NZCA 598; R v Leuta CA79/01, 19 September 2001; Te Pana v R [2014] NZCA
55, Waipuka v R [2013] NZCA 661.
3 R v Taueki, above n 1 at [31](b).
4 At [31](d).
5 At [31]€.
[18] A further aggravating factor is the infliction of extreme violence, particularly where it is gratuitous and unprovoked.6 In this case there can be some argument as to whether this is extreme violence or serious violence. Either way, it is clear that that is a factor that heightens the culpability of your offending. It was also, in my view, unprovoked in the sense that your victim had done nothing whatsoever to provoke you. Secondly, the summary of facts does not disclose any acts on his
behalf that could be viewed as being directed towards your younger brother. I mention this because the writer of the pre-sentence report indicates you told him that your actions were done with the intention of defending yourself and your younger brother. There is nothing in the summary of facts to indicate that was the case.
[19] Finally, there is the fact that your offending resulted in serious injury to the victim. I consider that brain injuries of the type that the victim suffered can properly be described as serious injuries.
[20] Your counsel submits that an appropriate starting point having regard to those factors is one of between nine and ten years imprisonment. The Crown takes the view that an overall starting point of between 12 and 13 years imprisonment is appropriate.
[21] I consider that, putting aside the death of the victim, the appropriate starting point under a Taueki analysis is either at the top end of band 2, or the bottom end of band 3. Your offending definitely has three of the features identified in Taueki, namely premeditation, the use of a weapon and blows to the head. It also has factors relating to two others, namely the infliction of serious injury and the use of serious violence. Had this been a case in which your victim had survived, I would have selected a starting point of ten years imprisonment to reflect the factors I have identified. It is now necessary for me to increase the starting point to reflect the fact that your offending contributed to your victim’s death.
[22] Had your victim died of injuries inflicted by you, the uplift would have been around three years imprisonment. I need to take into account, however, the fact that
other factors were also at play. In particular, the fact that the victim was ultimately
6 At [31](a).
asphyxiated, and that to a lesser extent, intoxication may have contributed to his death. Nevertheless, none of those other factors would have come into play had you not arrived in that room and inflicted the original injuries on the victim. For that reason I am satisfied that an uplift of 18 months is appropriate to reflect the fact that your victim died.
[23] This leads to a starting point of 11 years six months imprisonment without taking into account aggravating and mitigating factors that are personal to you.
Aggravating factors
[24] The only aggravating factor personal to you is the fact that you have three previous convictions for offending involving violence. The first of these is a conviction for assaulting a female. That occurred in 2006, and I put it to one side for present purposes. You were also convicted of assaulting police in 2008. Again, that is sufficiently in the past to be of little or no relevance for present purposes.
[25] What is of relevance, however, is a conviction that you received for offending on 9 September 2009. On that occasion you were convicted of assaulting a person with a blunt instrument and you received a sentence of eight months imprisonment on that charge on 17 December 2009. I have received the summary of facts in respect of that offending. It appears to have occurred in a gang environment, and I note that you were previously associated with the Killer Beez group. Members of your group went to an address and became involved in an argument with the occupants. You then kicked one of the occupants when a physical altercation began. After one of the occupants punched you in response, you picked up a length of timber and swung it at another of the occupants causing injuries to his arm. That was obviously serious offending, because it resulted in a sentence of imprisonment.
[26] More importantly, the present offending shows that you have not learnt the lesson from the sentence imposed on the last occasion. In other words, your present offending is made more serious by the fact that, on this occasion, you were again prepared to resort to a weapon and strike another person with it. I have to be careful, however, to ensure that any uplift is not too great, because it is important that you
not view the uplift as being a second sentencing for the same offending. I propose to apply an uplift of three months to reflect this factor.
[27] This produces a sentence of 11 years nine months before taking into account mitigating factors personal to you.
Mitigating factors
[28] Your counsel urges me to take three mitigating factors into account. The first of these is that, in recent times, you have managed to separate yourself from the Killer Beez group and have gained steady employment. You have a supportive partner and young child. Your counsel also submits that I can give you credit for the remorse that you have expressed in Court today.
[29] It is always very difficult to reach a conclusion regarding remorse expressed by an offender who is about to be sentenced. Often it is driven more by the position in which the offender finds him or herself, rather than true remorse for the victims of the offending. In your case I gain that impression from comments that you made to the probation officer in which you do not appear to have any insight into your offending and continue to maintain that you acted in self-defence. Nevertheless, I am prepared to give you credit for the fact that you have had the courage to compose a letter of remorse to the family of your victim and you have instructed your counsel to read that to them today. I am prepared to give limited credit for that, together with the other factors that your counsel has referred to in relation to the recent turnaround in your life. I propose to allow a discount of three months to reflect those factors.
[30] This brings me to a sentence of 11 years six months imprisonment before taking into account your guilty plea.
[31] The Crown accepts that you entered your guilty plea at the earliest opportunity, and that you should be entitled to the maximum credit of 25 per cent to reflect that factor. It also reflects your acknowledgement and acceptance of responsibility for your wrongdoing.
[32] I propose to apply a discount of two years 11 months to reflect that factor, which leaves an end sentence of eight years seven months imprisonment.
Minimum term of imprisonment
[33] In any case where the Court imposes a sentence of more than two years imprisonment, it may extend the time in which the offender is entitled to apply for parole. The Court may do so where it is satisfied that the normal parole provisions would not be sufficient to recognise the sentencing principles and purposes of denunciation, deterrence, the need to hold the offender accountable and the need to
protect the community.7
[34] In the ordinary course of events, an offender is eligible to apply for parole after serving one-third of his or her sentence. In your case that would mean you would be eligible to apply for parole after serving less than three years of your sentence.
[35] I consider that would be manifestly inadequate to reflect the need to denounce your offending, to hold you accountable for it and to ensure that you accept responsibility for it. There is also the need to protect the community because of the fact that this is the second occasion on which you have been prepared to use a weapon against the person of another.
[36] For those reasons, I accept the Crown’s submission that it is appropriate to impose a minimum term of imprisonment. I intend to impose a minimum term of imprisonment of 50 per cent.
Sentence
[37] On the charge of manslaughter, you are sentenced to eight years seven months imprisonment. You are ordered to serve a minimum term of four years four
months imprisonment before being eligible to apply for parole.
7 Sentencing Act 2002, s 86.
[38] Thank you. Stand down.
Lang J
Solicitors:
Kayes Fletcher Walker, Manukau
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