R v Ormsby-Turner
[2023] NZHC 1817
•12 July 2023
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2022-043-937
[2023] NZHC 1817
THE KING v
TANA ORMSBY-TURNER
Hearing: 12 July 2023 Appearances:
C E Clarke and H Bullock for the Crown K Pascoe for the Defendant
Judgment:
12 July 2023
SENTENCING OF COOKE J
[1] Tana Ormsby-Turner you have pleaded guilty to one charge of wounding with intent to cause grievous bodily harm,1 and one charge of being an accessory after the fact to murder and for the avoidance of doubt I enter convictions for those two offences.2
In explaining the sentence that I intend to impose upon you I will:
(a)First outline the facts of the offending and its implications.
(b)Second, I will assess what the starting point is for offending of this kind in terms of the period of imprisonment that would be involved.
1 Crimes Act 1961, s 188(1), maximum penalty 14 years’ imprisonment.
2 Crimes Act, ss 71 and 176, maximum penalty seven years’ imprisonment.
R v ORMSBY-TURNER [2023] NZHC 1817 [12 July 2023]
(c)Finally, I will address all the circumstances that are personal to you, including particularly the impact of your youth, and arrive at the final sentence.
[3] After explaining the sentence that I intend to impose, I will also then address the question of name suppression that you have applied for.
The facts
[4] I begin by outlining the facts of the offending. Those facts are set out in the summary of facts to which you have entered your guilty pleas.
[5] The offending involves your assault of Rei Marshall, who was a 23 year old prospect of the Uru Taha gang. You attacked him on the evening of 3 August 2022 at an address in South Road, New Plymouth. Your older brother, Turanganui-John also fatally attacked Mr Marshall at the same time, and he has been convicted and sentenced for murder.
[6] Mr Marshall arrived at the address in his car. The address was a known Mongrel Mob address. You were there with Turanganui-John and Hamiora Laupama. Turanganui-John was the president of the West Coast chapter of the Mongrel Mob. Mr Laupama was a patched member and you were a prospect. Your group became annoyed when they saw Mr Marshall arrive given his association with the Uru Taha gang.
[7] The three of you went inside the address to collect another person and a red bag containing a semi-automatic shotgun and a semi-automatic high powered rifle. The three of you had earlier arranged to engage in a “taxing” operation. You left the address through the back door with the bag. Mr Marshall was also going in and out of the front of the address putting food into his car which he was going to take to his mother. When doing so he had a confrontation with Mr Laupama. Mr Marshall and Mr Laupama walked towards one another, and Mr Marshall took a swing at Mr Laupama but missed.
[8] Turanganui-John was behind Mr Marshall at that time. He then moved to a position in front of him and stabbed him once in the torso. At the same time you approached and then struck Mr Marshall multiple times on his head with a wooden handled claw hammer. Mr Marshall fell to the ground. You continued to assault him on the ground until you were pulled away
[9] Turanganui-John instructed those involved to get Mr Marshall into the car and take him to hospital, and he was subsequently driven to Taranaki Base Hospital. He was pronounced dead soon after arrival. Forensic evidence confirms that Mr Marshall died because of the stab wound. Your assault caused two fractures to the back of the head and blunt force trauma to the right neck and associated haemorrhages. There is no evidence that the injuries you inflicted actually caused Mr Marshall’s death, but they were nevertheless serious injuries.
[10] Steps were then taken to try and hide the evidence of the offending. Turanganui-John instructed you and Mr Laupama to return to the address to pick up items, and then return to another address where you were ordered not to leave. You and Mr Laupama then removed and burnt your clothing. You also dumped the red bag containing the firearms, hid the Mazda, and took steps to coordinate your stories.
[11] On 2 December 2022 Gendall J sentenced Mr Laupama to five months’ home detention with electronic monitoring following him pleading guilty to the offence of being an accessory after the fact to murder.3 On 6 March 2023 Churchman J then sentenced Turanganui-John to life imprisonment, with a minimum period of imprisonment of 10 and a half years following him pleading guilty to the charge of murder.4
[12] Your offending has had a significant impact on the Marshall family, and we have heard from Rei’s sister [ ] who has explained the devastating impact of Mr Marshall’s death. I also acknowledge the other members of the Marshall whānau and the other victim impact statements that I have received. Although his death is not shown to have been caused by you, but by your brother, you were involved in what
3 R v Laupama [2022] NZHC 3312.
4 R v Ormsby-Turner [2023] NZHC 406.
was a very serious assault upon him, and you are partly responsible for the deep grief that they, and all the whānau feel.
Starting point
[13] I next address what the starting point would be for this offending. It is important to say from the outset that I do not sentence you on the basis that you were involved in the murder, or even the death of Mr Marshall. Your brother has been convicted and sentenced for his murder because he stabbed him. You were not involved in the stabbing of Mr Marshall. I sentence you on the basis that you wounded Mr Marshall intending to cause him grievous bodily harm.
[14] For that offending the Court of Appeal’s guiding judgment in R v Taueki applies.5 It outlines bands for grievous bodily harm offending. There are three bands, band 1 (three to six years), band 2 (five to 10 years) and band 3 (nine to 14 years). The Crown contend that the offending here falls within the range of 9–11 years imprisonment, putting it in the bottom of band 3.
[15] I consider, however, that your offending falls within band 2 in the range of five to 10 years. Band 2 was described by the Court of Appeal in the following relevant way:6
Concerted street attack: For a street attack in which a victim is set upon by a group of attackers in an attack involving the use of weapons found at the scene, a starting point at the lower end of band two would be indicated. If the attack involves blows to the head or other serious injuries are caused, or there is premeditation, then a starting point higher in the band two spectrum would be required.
[16] The latter part of that description applies to your offending. Of the aggravating factors I consider that this offending involves serious injury, use of a weapon, attack to the head, multiple attackers and gang associations, although there is overlap in these factors which should be taken into account.7 As the Court emphasised the suggested bands and starting points should be used flexibly, and there needs to be an assessment
5 R v Taueki [2005] 3 NZLR 372 (CA).
6 At [39](a).
7 See Flavell v R [2011] NZCA 361 at [22], and Diaz v R [2021] NZCA 426 at [29], and
Ta’akimoeaka v New Zealand Police [2018] NZHC 68 at [23]–[24].
as to the significance of the particular aggravating features in determining the overall culpability inherent in the offending.8 The most significant aggravating factors here are the fact that you used a weapon on Mr Marshall’s head causing significant injury. But this was not a premeditated attack, and although it was gang related it would appear that Mr Marshall threw the first punch and that you then joined in on the fight.
[17] Given that your offending involved an attack to the head with a weapon that caused serious injury, a starting point higher in the band 2 spectrum is required, however. In terms of comparable cases:
(a)In Ta’akimoeaka v New Zealand Police Mr Ta’akimoeaka approached the victim, and inflicted two blows to the victim’s head with a wheel brace, and threw some punches, causing lasting injuries. The offending involved the somewhat overlapping aggravating factors of extreme violence, use of a weapon, attacks to the head, and serious injury. A starting point of eight and a half years was adopted and upheld on appeal.9
(b)In Diaz v R a group of attackers pulled the victim from his car and pursued him. Mr Diaz then ran the victim over with his car and the group, some armed with branches, then attacked him punching and kicking him on the ground causing serious injuries. The Court of Appeal agreed that the attacked involved more than two or three aggravating factors identified in Taueki, including prolonged violence, multiple attackers, use of tree branches and a car as weapons, serious injuries, a vulnerable victim, and a degree of premeditation. Notwithstanding the several aggravating factors the Court of Appeal agreed that a starting point of seven years’ imprisonment, reduced to six years’ imprisonment for excessive self-defence was well within range.10
8 R v Taueki, above n 5, at [42].
9 Ta’akimoeaka v New Zealand Police, above n 7.
10 Diaz v R, above n 7.
(c)In R v Hita two tourists were attacked by Mr Hita and his companion, including by striking the victims with a bottle causing serious lacerations and other injuries. The attack involved the use of a weapon, blows to the head, a degree of premeditation, and more than one victim. The Court recognised that a starting point of seven and a half years’ imprisonment was stern, but within range.11
[18] Starting points must reflect the overall culpability of the offender involved. I consider that the starting point here should be in the upper region of band 2 in Taueki. But you were responding to a fight that had already commenced, you did not initiate the attack which was led by your older brother. That makes the offending slightly less serious than Ta’akimoeaka where the offender initiated the attack against the victim. It was nevertheless a sustained attack to the head with a weapon causing serious injury, so it is more serious than Diaz and Hita. That suggests a starting point of eight years, but I reduce it to seven and a half years to reflect the fact that you were responding to a fight, and that you were under your brother’s significant influence, which reduces the level of your personal culpability.
[19] You have also pleaded guilty to the offence of being an accessory after the fact to murder. That would be the kind of additional offending that could give rise to an uplift on the sentence of imprisonment. But under s 18 of the Sentencing Act 2002 the Court is prohibited from imposing a sentence of imprisonment if an offender is under 18 years of age except for particular offences, and it is agreed that this offence does not fall within that category. For that reason no uplift for this additional offending is permitted.12
Personal factors
[20] It is next appropriate to access factors that are personal to you. That will include taking into account that you were only 16 years old at the time of the offending, and are only 17 now.
11 R v Hita CA505/05 26 November 2006.
12 Diaz v R, above n 7, at [32]–[34].
[21]Before addressing that, I need to address some other mitigating factors.
[22] First, you have spent a little over one month on custodial remand in a youth justice facility last year, and you have spent 10 months on restrictive electronically monitored bail. The terms of that bail are similar to what would be involved in a sentence of home detention, particularly for a young person. An allowance is usually made for the time spent on restrictive EM bail, with an allowance of 50 per cent not being uncommon but not being an upper limit.13 In the circumstances I deduct six months from your starting point for these circumstances.
[23] In addition you would be entitled to a 25 per cent discount because of your guilty plea.
[24] I must then address the impact of cultural background, remorse, rehabilitation potential, and your youth. The most difficult questions in determining the appropriate sentence for your offending arise because of these factors.
[25] I have the advantage of a number of reports including two reports from a psychiatrist, Dr Knight, a cultural report under s 27 of the Sentencing Act, two reports from the Department of Corrections Probation Services, one from March and one from June, and a report from No 12 Youth Hub who have been providing education and rehabilitation services during the period when you have been on EM bail.
[26] As you know the Crown disputes the information that has been made available to me in these reports as a consequence of a search warrant executed at your home. I will come back to address the information in the reports, and the significance of the information referred to by the Crown a little later, but I first need to outline how your youth at the time of the offending, and now, affects how I should sentence you.
[27] As you know your case was originally transferred to this Court from the Youth Court because you initially jointly faced the charge of murder. But once it was established that your offending had not caused Mr Marshall’s death the murder charge was withdrawn. In my judgment of 10 May 2023 I concluded that, notwithstanding
13 Paora v R [2021] NZCA 159 at [53].
the withdrawal of the murder charge, your sentencing needed to remain in this Court as the interests of justice required a consideration of a sentence of imprisonment.14
[28] The Court of Appeal explained in R v Pouwhare that the sentencing principles in the Youth Court are different from this Court, and when sentencing stays in this Court the sentencing principles of the Sentencing Act must be applied.15 But the Court said that with sentencing a youth what was required was to weigh the young person’s age and the reasons for the offending against the seriousness of the offending and the prospects of rehabilitation. The Court indicated that a young person’s age will be a mitigating factor of high, perhaps decisive significance not to be circumscribed by any fixed outer percentages.16 In Churchward v R the Court of Appeal then explained how adolescence significantly impacts on decision-making of young persons.17 This was further elaborated on by the Court of Appeal in Dickey v R where the Court indicated that there were no outer limit to the discount for youth in current sentencing practice but discounts of 10 to 30 per cent were common.18
[29] The decision of the Court of Appeal in Diaz v R is perhaps of most significance as it addresses the youth factor in the context of offending of the same kind. The Court was required to make a decision between sentencing the young person to imprisonment, or imposing an alternative sentence, and in particular the sentence of home detention. There the Court of Appeal set aside the sentence of three years’ imprisonment reached by the District Court and replaced it with a sentence of five months 15 days’ home detention.19 When doing so the Court addressed the significance of s 18 of the Sentencing Act, and the prohibition on imposing imprisonment for someone aged under 18 except in particular circumstances. The Court also referred to the international obligations, and to the requirement in s 8(g) of the Sentencing Act that the Court must impose the least restrictive outcome that is appropriate in the circumstances. One of the Judges identified the policy that
14 R v Ormsby-Turner [2023] NZHC 1099.
15 R v Pouwhare [2010] NZCA 268, (2010) 24 CRNZ 868 at [74].
16 At [83].
17 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
18 Dickey v R [2023] NZCA 2 at [175].
19 Diaz v R, above n 7.
imprisonment should not generally be imposed on a young person under 18 other than in the most serious cases.20 He suggested that:21
… the court should begin by asking whether a sentence of home detention or imprisonment is the least restrictive outcome that is appropriate in the circumstances, or whether some less restrictive option is appropriate. If no less restrictive option is appropriate, so the choice is between home detention and imprisonment, the court would then ask whether a compelling justification has been made out for imposing a sentence of imprisonment rather than a sentence of home detention. That would require identification of relevant sentencing objectives, and some rational basis (such as empirical studies or expert evidence) for concluding that those objectives would be better advanced by imprisonment than home detention.
[30] That approach may lead to the same outcome as an application of the conventional approach to sentencing — that is addressing what the appropriate discount from the starting point would be for youth and related factors, recognising there is no upper limit, and the ultimate end sentence needs to be the appropriate one. Addressed in that way it would still be necessary to keep in mind the ultimate implications in terms of the final sentence, and particularly whether a sentence of two years’ imprisonment would be arrived at and whether home detention was available. Either approach involves the application of the principles of the Sentencing Act. Here I am particularly guided by asking myself what the best outcome is for society as a whole in light of the Sentencing Act principles.
[31] Your counsel has very carefully researched what would happen to you if you were sentenced to imprisonment. In particular you would be remanded in custody at one of the four youth justice residences in Auckland, Rotorua, Palmerston North or Christchurch until you reach 18 years of age next February. Thereafter you would be transferred to an adult prison. There are only two youth prison units for 18 to 20 year olds in New Zealand, and the one in Hawkes Bay has closed. The one in Christchurch has only 20 beds, and would only be available after there was a classification assessment which included factors such as vulnerability, gang associations, capacity and proximity to whānau. It seems unlikely that this would be available for you particularly because you are a member of the Mongrel Mob. If it is not available you would be housed in a main stream adult prison, some of which can have youth areas.
20 At [60] per Goddard J.
21 At [61].
[32] Your counsel submits that on the basis of the information received by her that nothing is guaranteed for you should you receive a sentence of imprisonment in terms of any programmes, or terms and conditions tailored to youth needs. She refers to the observations made by the Principal Youth Court Judge in New Zealand Police v SD that public safety is not enhanced by a youth being sent to adult prison.22
[33] I accept that sentencing you to imprisonment, even if it involved a period of some six months in a youth facility, will likely irretrievably prejudice any chance of you avoiding descending into an entrenched criminal lifestyle. You are a young gang member who would not likely escape the overwhelming influence of the gang once in prison on turning 18. So this would effectively involve a decision that you must be treated, even at this age, as someone who has no prospects other than to be someone who will have a life of crime.
[34] The reports I have received suggest there is an alternative. The s 27 report provided by a group of well-qualified report writers suggest that your family background and particularly the influence of your brother meant that there was an overwhelming influence of the Mongrel Mob. You were a prospect from as young as 15 years. The report explains how you looked up to your brother, the loyalty that you feel to the Mongrel Mob, but it also refers to factors that suggest that you have been trapped in that lifestyle notwithstanding your obvious intelligence, which they identify. I accept the view that they outline that you have become engaged in this lifestyle because of issues of cultural and social deprivation, and, as they say, your upbringing has meant that entry into gang life was predictable. You were then socialised by delinquent peers which is empirically established as one of the greatest risk factors for criminal behaviour. These factors by themselves would justify a discount even for older persons.
[35] Dr Knight advises that at the time of the offence that you presented as a relatively normal 16 year old in most respects, and that you do not suffer from any sort of mental impairment. But he reports that your moral agency was compromised in one important respect. That is your indoctrination into the Mongrel Mob. He says
22 New Zealand Police v S D [2018] NZYC 169.
that at an emotionally vulnerable time in life, at around age 12 or 13 you developed your strong association with the Mob, and that in terms of the offending you felt that a member of the Mob was being harmed and that you owed the gang obedience and loyalty. He describes you as someone who feels intense loyalty to the gang. He also reports that his instincts are that your expressions of remorse you outlined to him was genuine. He says in his most recent report that your moral compass is not damaged beyond repair and that you need the guidance of wise adults to help you to do better.
[36] The report from No 12 Youth Hub outlines your attendance at their programme since you have been on EM bail. You are described as honest, open, respectful and very intelligent. You have attained 39 NCEA credits and are working on your driver’s licence. It is reported that your facilitator has spoken highly of you and your contribution to the programme, as did other young people who are said to have described you as inspirational and having the potential to go somewhere in life.
[37] I have also two reports from Probation Services. The first dated 3 March not only confirms the reports of the No 12 programme, but also an earlier programme that you attended in which the intervention provider spoke very highly of you. The recommendation in that report is that you receive the sentence of home detention. In a further report of 26 June Corrections advise that you would be transferred to a youth wing of an adult prison once you turned 18, but that with home detention you would continue to be managed by with the support of Oranga Tamariki and the No 12 Hub to complete your education. The report writer advises that, after a hui with you, your whānau, an Oranga Tamariki representative and a representative from the No 12 agency the recommendation remains one of home detention.
[38] Against that is the information recently provided by the Police. A search warrant recently executed at your home, and the EM bail address, reveals that you have a large Mongrel Mob tattoo on your back, and that you are in possession of Mongrel Mob patches in your wardrobe. Police report that you have become a patched Mongrel Mob member. That may be a consequence of this offending. In addition information from the prison reveals that you were in telephone contact with your brother in prison in March. Transcripts of those telephone conversations have been made available to me. They suggest you have an ongoing Mongrel Mob association.
That contact is also a breach of your EM bail conditions which include a provision that you not make contact with gang members. You would also have required the presence of a gang member to have been given the tattoo.
[39] The Crown point out that this information reveals that some of the things that you have said to the report writers must be untrue. You told them that you were only a prospect and no longer wanted an association with the gang. You said that you had no tattoos. It would appear that you received the tattoo on your back at some time before speaking to your brother in March of this year when it was referred to which is before you saw the report writers. So you have not been honest with them. Moreover the suggestion that you are now a patched member of the gang, which is confirmed by the existence of the patches in your wardrobe when the search warrant was executed, means there may be substance to the Crown’s argument that there is no prospect of rehabilitation, and that you are already committed to a life in the Mongrel Mob.
[40] But I do not accept that that means that everything you said to the report writers was untrue. I rely on the general advice that each of them consistently provide about you as a young person. In particular I accept that you have had no real alternative but to live life associated with the gang, particularly because of your brother’s influence, and that you would like a life away from the gang. I also accept that if you could find an alternative you would like to attempt to live that life and that you are not beyond redemption. There are two further factors of significance. First, your brother is now in prison, and he has a minimum period of imprisonment of 10 and a half years. He will no longer have the overwhelming influence that he has had to date. Secondly, whilst you have had the gang tattoo and the patches in your wardrobe, there is no evidence that you have engaged in any gang related activities in the community. There is no suggestion from police, for example, that you have engaged in any unlawful conduct in the community other than breach of conditions they refer to. On the contrary, the reports from the programme providers during the period of EM bail say you have been compliant, and making good progress.
[41] So, is there any rehabilitation potential? Or is it already too late as the Crown effectively submit? If there is no rehabilitation potential, then the appropriate course would be to sentence you to prison. If there remains some prospect, particularly given
your age, then the appropriate sentence would be home detention. As I have said I am ultimately influenced by deciding what sentence is best for society given the Sentencing Act principles. If I send you to prison you will clearly present much greater risk to society on release. Home detention presents an opportunity to reduce that risk if there is any potential for you to respond to what is offered to you as part of that sentence.
[42] In the end I am influenced by the views of the report writers, and those providing information to them, even if you have not told the full truth to them on occasions. The two reports from Probation Services recommend home detention. Dr Knight reports that your feelings of remorse seem genuine, and your mental health since the offending has been fragile. In his most recent report he advises that the fact that you may be a Mongrel Mob member, and that you have lied about it demonstrates that you are not yet mature enough to take full responsibility for your actions but this does not mean that your moral compass has been damaged beyond repair. The s 27 report writers explain that you have been caught up in a criminal lifestyle because of your background. And those who provided rehabilitation services speak very highly of you and what you have achieved.
[43] I am not prepared to go against the general views reached by the report writers when assessing you and conclude that there is no prospect of rehabilitation. I conclude that there is some prospect, and that it is best for society to try and give you the chance to show that you can be a better person. This is the last opportunity that you are going to get. If you do not take the opportunity that will now be available to you a life of crime, violence and misery will be your future. There is another way forward for you. You are obviously an intelligent young man, and you need to show that you are capable of intelligent decisions.
[44] I consider that the least restrictive sentence that is appropriate is a sentence of home detention. That outcome is also available on a conventional sentencing approach. Applying the discounts on the starting point the cultural factors by themselves could justify a 15 per cent discount on top of the 25 per cent discount for the guilty plea, and approximately 30 per cent for youth rehabilitation potential and
remorse. That would allow this sentence to be two years from the starting point of seven years (adjusted given the EM bail period after the previous detention).
[45] But there will be one important protection that I need to impose, and to emphasise to you. It will be a condition of your home detention sentence that you do not have contact with gang members, and particularly Mongrel Mob members. For the avoidance of doubt, that includes your brother. That is a critical part of your potential rehabilitation. You have plainly failed to meet those conditions while you have been on EM bail. It is necessary for you to meet those conditions now. If you fail to meet those conditions then under s 80F of the Sentencing Act a Probation Officer can apply to the Court to have your sentence of home detention cancelled because of a breach of conditions and substituted with another sentence that could have been imposed for the offending. That means that if you breach these conditions and the matter is brought back to me, or another Judge, I can replace your sentence of home detention with a sentence of imprisonment. And I should make it clear to you that if that were to happen the discounts that might be available for youth, rehabilitation potential, and remorse as well as the sentence overall would all need to be reconsidered. There would be no guarantee at all that it would only be a short sentence of imprisonment imposed in place of your home detention sentence if that were to happen.
[46] Such an application has to be made by a Probation Officer and not by Police. The Probation Service are supportive of a home detention sentence, and are there to help you in that sentence. So I would only expect such an application if they form the view that the sentence was not working. And then it would be a matter for the Court to decide what to do. But in the end your future is in your hands. This sentence gives you a chance to demonstrate that you can rehabilitate so that the risk to the community will be reduced. If you fail, then prison may be the only option for you.
[47] I accept that your current EM bail address should be the home detention address as recommended. I appreciate there may be an issue about the address given that you have been in telephone discussions with your brother in breach of bail conditions, the existence of gang patches in your wardrobe, as well as the presence of a Mongrel Mob member at the house to give you your tattoo, and perhaps the general
association that your family has with the Mob. So it has not been ideal. So your whānau need to do better to do their part. But nevertheless it has pro-social elements revealed by the fact that the report writers indicated that you have been doing well on EM bail, and have otherwise been fully compliant with its requirements. So whilst it is not optimal it is pro-social in the sense that you will likely continue the rehabilitation programmes, and have the support of your whānau in doing so. Moreover it is obviously more pro-social than prison.
[48] In terms of your other conditions of home detention I have gone through each of the EM bail conditions. I will not read those out to you now, but they will be appended to this judgment when it is released in writing, and they will be given to you today before you leave. I have varied, or reworded some of the conditions that applied for EM bail, but they are more or less the same.
[49] Your home detention on those conditions will be for a period of 12 months from today and it will be electronically monitored. You will then be subject to a further 12 months conditions under s 80N of the Sentencing Act. These will be the standard post-detention conditions set out in s 80O which effectively give a Probation Officer the authority to control where you live, where you work, how often you report to them, with whom you can associate, and what other rehabilitation integration assessments are appropriate. So if you are in any doubt about those you just talk to your Probation Officer.
Name suppression
[50] Before finally imposing this sentence I need to deal with the question of name suppression. Your counsel has applied on your behalf for name suppression under s 200 of the Criminal Procedure Act. I can make that order if the publication of your name would cause extreme hardship to you. The approach under that section is well established. In the case of DP v R the Court of Appeal explained how the provisions should be applied in the case of a young person.23 They explained that someone aged 17 is in no special category for the purposes of name suppression but that given the rights in the New Zealand Bill of Rights Act 1990, and under the international
23 DP v R [2015] NZCA 476.
obligations,24 the Court should apply s 200 in a manner consistent with these rights and obligations.
[51] Suppressing your name may be considered of assistance with your rehabilitation. Moreover in Dr Knight’s report he indicates that publicity may be adverse to the fragile mental state that you have been in. But there is a need to be realistic. It is not suggested that publicity will cause any particular adverse effect for you in the community in respect of any particular activities. Moreover the case has already attracted a degree of publicity, including because your brother has been convicted and sentenced for murder. He has the same surname as you. For that reason I do not see how the suppression of your name can really be effective in protecting you from the adverse publicity arising from this offending, and for that reason further publicity now would not cause you extreme hardship. Given that, and notwithstanding the rights and international obligations, the needs of open justice seem to me to prevail. The application for name suppression is accordingly declined.
Outcome
[52]Tana would you please stand.
[53] On the charge of wounding with intent to cause grievous bodily harm I sentence you to 12 months’ home detention, and a further 12 months of standard post- detention conditions. On the accessory charge you are convicted and discharged. I’ll ask you to now stand down.
Cooke J
Solicitors:
Crown Solicitors, New Plymouth
C&M Legal, New Plymouth for the Defendant
24 In particular, reference was made to Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990) and International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).
Home detention conditions
1.[ ]. To reside at the address 24 hours a day, seven days a week, and to not leave that address without the prior permission of the Department of Corrections.
2.To undertake the following activities only with the prior direction or permission of the Department of Corrections:
a. Attending Work and Income appointments.
b. Attending appointments with legal counsel.
c. Attending doctor/hospital/specialist/dentist or other medical professional appointments.
d. Attending any other government agency appointments.
e. Attending any counselling/programmes or treatment, including the No 12 Youth Hub programme.
f. Attending Oranga Tamariki appointments.
g. Attending appropriate appointments relating to your caregiver.
h. Attending any activities that relate to the outcome of a Family Group Conference, after the Department has consulted with Oranga Tamariki.
i. To attend any activities and programmes in the company of a support person.
j. Attending tangihanga.
3.Not to associate or have contact directly or indirectly with the direct family members of the deceased, Mr Rei Marshall.
4.Not to associate or to have contact directly or indirectly with any gang members, and in particular members of the Mongrel Mob, including your brother Turanganui-John Ormsby-Turner.
5.Standard post release conditions under s 180 for 12 months from the end of the home detention period.
2
0
0