R v Ormsby-Turner

[2023] NZHC 1099

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2022-043-937

[2023] NZHC 1099

THE KING

v

TANA ORMSBY-TURNER

Hearing:	5 May 2023
Appearances:	C E Clarke and R L Hicklin for the Crown K Pascoe for the Defendant
Judgment:	10 May 2023

JUDGMENT OF COOKE J

(Potential transfer to Youth Court)

[1]    Tana Ormsby-Turner has entered guilty pleas 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.2 He is 17 years of age and was 16 at the time of the offending. He was originally charged with murder and in accordance with ss 275(1)(a) and (2)(b) of the Oranga Tamariki Act 1989 (the OT Act) the proceedings were transferred from the Youth Court to the High Court. The murder charge has now been withdrawn, however. As a consequence the following provision of the OT Act applies:

1      Crimes Act 1961, s 188(2) – maximum penalty 14 years’ imprisonment.

2      Sections 71 and 76 – maximum penalty seven years’ imprisonment.

R v ORMSBY-TURNER [2023] NZHC 1099 [10 May 2023]

276A   Transfer of proceeding back to Youth Court

(1)This section applies if a proceeding has been transferred from the Youth Court to the District Court or the High Court under section 275 or 276AB(1) and—

(a)the circumstances or reasons for the transfer of the proceeding no longer apply; and

(b)the charge or charges are within the jurisdiction of the Youth Court.

(2)The District Court or the High Court must transfer the proceeding back to the Youth Court to be dealt with in that court, unless the interests of justice require the proceeding to remain, and be dealt with, in either of those courts.

(3)The transfer of the proceeding may occur at any time before sentencing.

…

[2]    The Crown indicated when the guilty pleas were entered that it wished to argue that the interests of justice required the proceedings to remain in this Court for sentencing. Convictions were not entered as a consequence.

[3]    The Crown’s application was initially listed for hearing before me on 23 March 2023 and submissions were filed. After considering the written submissions prior to that hearing, however, I issued a minute raising a concern that there was insufficient information available before the Court to make the decision. In particular a report from Dr James Knight concerning Tana’s youth, his mental health, and his vulnerability to influence had been commissioned but it was not yet available. I indicated that I considered that that kind of evidence was highly material to the Court’s assessment. After discussing the position with counsel it was agreed that the hearing would be adjourned to allow the report to be received.

[4]    A report from Dr Knight has now been made available, as has a cultural report under s 27 of the Sentencing Act 2002.

The offending

[5]    The offending involves the death of Rei Marshall, who was a 23 year old prospect of the Uru Taha gang. He was killed on the evening of 3 August 2022 at an address in South Road, New Plymouth.

[6]    Mr Marshall arrived at the address in his car. The address was a known Mongrel Mob address. Tana was there with his elder brother, Turanganui-John Ormsby-Turner, and Hamiora Laupama. They were in another vehicle at the address. Turanganui-John was the president of the West Coast chapter of the Mongrel Mob. Mr Laupama was a patched member. Tana was a prospect. They became annoyed when they saw Mr Marshall arrive given his association with the Uru Taha gang.

[7]    The three went inside the address to collect another person and a red bag containing a semi-automatic shotgun and a semi-automatic high powered rifle. They had earlier arranged to engage in a “taxing” operation. Mr Marshall was also going in and out 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 Mr Marshall once in the torso. At the same time Tana, who was armed with a wooden handled claw hammer, struck Mr Marshall multiple times on the head. Mr Marshall fell to the ground. Tana continued to assault him on the ground. Another person then intervened to stop him.

[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 as a result of the stab wound to his torso. Forensic evidence confirms that Mr Marshall died because of the stab wound. Tana’s assault caused two fractures to the back of the head and blunt force trauma to the right neck with associated haemorrhages. There is no evidence that these injuries caused Mr Marshall’s death.

[10]   Steps were then taken to try and hide the evidence of the offending. Turanganui-John instructed Tana and Mr Laupama to return to the address to pick up items, and then return to another address where they were ordered not to leave. Tana and Mr Laupama then removed and burnt their clothing. They also dumped the red bag containing the firearms, hid the Mazda, and took steps to coordinate their stories.

[11]   Two days prior to the offending Tana had been discharged in the Youth Court in relation to charges of burglary and possession of offensive weapons. That involved being involved in a burglary of a residential address where he was in possession of a hammer in January 2022, and then while on bail for this offending presenting a large hunting knife at members of the public in May 2022.

[12]   On 2 December 2022 Gendall J sentenced in 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

The approach under s 276A of the OT Act

[13]   I am unaware of any previous authority on the approach to s 276A. It seems to me that the section involves the following key considerations:

(a)Section 276A(2) imposes a strong presumption. The High Court “must” transfer the proceedings back to the Youth Court unless the interests of justice “require” them to remain in the High Court.

(b)The “interests of justice” will involve a broad consideration of the facts and circumstances of the case, including the seriousness of the offending and the different approach to the sentencing that would be involved in the Youth Court by comparison with the High Court.

3      R v Laupama [2022] NZHC 3312.

4      R v Ormsby-Turner [2023] NZHC 406.

(c)The procedures and sentencing options available to the Youth Court focus on the particular features of youth offending, recognising the rights of the child under the United Nations Convention on the Rights of the Child.5 There will be cases, however, where the sentencing must proceed in accordance with the sentencing principles applicable in the High Court. This is reflected in the Convention which provides that imprisonment of a child can arise as a “last resort”.6

(d)There is a corresponding power for the Youth Court to transfer proceedings to the District Court for sentencing under s 283(o)(i) if the sentencing options in the Youth Court are “clearly inadequate” under  s 289(1)(b). Section 276A(2) should be interpreted and applied on an equivalent basis.

[14]   Ultimately the question is whether the nature and circumstances of the offending, and of the youth involved in the offending, mean that the interests of justice can only be served by the proceedings remaining in the High Court. It would involve a conclusion that the interests of justice cannot properly be served by the sentence that the Youth Court could impose.

The reports

[15]   As indicated two reports have been made available to the Court. The key conclusions to be drawn from Dr Knight’s report are that:

(a)Tana sees himself as having become immersed in the culture of the Mongrel Mob to the extent of feeling compelled to follow orders. He is fearful and “stuck” in gang life. He is now experiencing some degree of post-traumatic stress disorder as a result of his involvement with the Mongrel Mob and the offending.

5      Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990), art 3.

6      See United Nations Committee on the Rights of the Child General comment No 24 (2019): on children’s rights in the child justice system UN Doc CRC/C/GC24 (18 September 2019) at [73].

(b)There is a recognised developmental immaturity involved with someone of Tana’s age as has been recently described by Court of Appeal decisions. There is also undeveloped moral maturity.

(c)Tana shows some degree of personal maturity notwithstanding his background and in most respects presents as a relatively normal 17 year old. He does not suffer from any form of mental impairment. But his moral agency has been compromised in one major respect arising from the strong association with the Mongrel Mob and the high level of indoctrination.

(d)His mental health is somewhat fragile in the current circumstances, albeit that he is feeling relatively safe at his current EM bail address.

(e)He has expressed a desire to distance himself from the Mongrel Mob and has the potential to live a good and law abiding life.

[16]   The cultural report under s 27 provides more detail of Tana’s upbringing, and the changes in his life that led to the offending. The key considerations to be drawn from this are that:

(a)Tana has been apparently open and transparent with the report writers, giving detailed information of his family history, his fears and his hopes.

(b)He lived a relatively good life until at one point in his schooling when gang influences first emerged. He expressed shame for some of the things that occurred from this period, including deep shame for how he treated his father from this time.

(c)At this stage he looked up to his brother and wanted to emulate him, and the offending is inextricably linked to his brother and his brother’s lifestyle in the Mongrel Mob.

(d)He has expressed strong remorse for the offending, and wishes to engage in restorative justice with Mr Marshall’s family even though he finds the prospect of doing so extremely challenging. He has said that he is 100 per cent wholeheartedly sorry for the offending.

(e)He wishes to now disassociate himself with the Mongrel Mob, which is possible given that he was only a prospect.

(f)He has found positive relationships, and a pathway forward in the programmes that he has been on whilst on bail.

[17]   The report writers indicate that Tana’s youth made him acutely susceptible to influence of peers, that he had been socialised by other delinquent peers, and that given his background a life within the gang was predictable. Tana has expressed the desire to engage in counselling to overcome the violent trauma of his past, and to address the involvement in the current offending, however.

Assessment

[18]   I agree with Ms Clarke’s primary submission that, whilst the murder charges have been withdrawn, this remains very serious offending and that this is a strong factor in favour of the proceedings remaining in the High Court. It is offending in which Tana was involved in a serious attack, and which involves Mr Marshall losing his life, albeit that his death was caused by Tana’s brother and not by Tana himself. Tana nevertheless used a hammer to inflict blows to Mr Marshall’s head in a gang related assault.

[19]   Ms Clarke advised that the Crown’s present view was that the starting point of nine to eleven years’ imprisonment would be warranted, and the Crown remains of the view that imprisonment would be required based on the current information. She indicated that more information could be made available from a PAC report, and from Oranga Tamariki, as to whether there were sentencing options that would be more appropriate in Tana’s circumstances. But as matters presently stood imprisonment was still required because of the seriousness of the offending.

[20]   Of the factors raised by Ms Pascoe in response the most compelling is that Tana has expressed sincere remorse for the offending, and a desire to step away from life associated with the Mongrel Mob. He only engaged in the offending because of the overwhelming influence of his elder brother, and he was vulnerable to such outside influences because of his age and immaturity.

[21]   I accept that this is a very important consideration in the present case. Should Tana be sentenced to imprisonment, his ability to leave the Mongrel Mob or disassociate with the influences over his life will likely be irretrievably compromised. In R v H I discharged without conviction an 18 year old who had become involved in drug and gang related offending leading to a shooting that had resulted in a wounding. There I said:7

… the criminal justice system needs to address cases like this with the sensitivity they deserve. There is a public benefit in taking steps to prevent people like you from entering the criminal justice … and prison systems. That is particularly so for young people. Once those systems are entered it becomes hard to stop a decline into a criminal lifestyle, highly influenced by gang culture. Whilst this is serious offending, it can be said that it is the very kind of case that a discharge without conviction provision is most effectively directed to.

[22]   It can be similarly argued here that avoiding a prison sentence is potentially an overriding consideration when addressing the interests of justice. Tana has expressed to both report writers that he is fearful of the Mongrel Mob, and has felt compelled to comply with the requirements of gang life. As Ms Pascoe also emphasised in the period of time when he has been in Oranga Tamariki care, and then on EM bail with his family, Tana has been compliant, and has made good progress in the programmes and assistance that have been made available. He has expressed a sincere regret for the offending, and a desire to change his life. Both report writers report there is a prospect he can turn his life around.

[23]   The interests of justice may not be met if a person with genuine rehabilitation potential is made subject to a term of imprisonment which will likely realistically remove the prospect of rehabilitation. Whilst imprisonment may not eliminate that

7      R v H [2023] NZHC 626 at [32]. See also R v Walsh [2023] NZHC 680.

rehabilitation potential it would come close to doing so. Tana is a young person and the influence of gangs in prison is well known.

[24]   But there remains a question whether Tana’s expression of remorse, and his commitment to rehabilitation is genuine, and realistic. That is difficult for me to assess at present. I note that Tana’s brother also expressed similar remorse, and a desire to move away from gang life when he was sentenced to life imprisonment.8 The report writers have been appropriately cautious in expressing their own views, although both have identified the prospect for Tana to find a life away from the influences of gang life.

[25]   In R v Pouwhare the Court of Appeal held that when sentencing is before the High Court the normal principles under the Sentencing Act are to be applied rather than the approach to sentencing applicable under the OT Act. The Court said:9

The youth justice regime created by the CYPF Act is a carefully weighted and circumscribed amalgam of objects, principles, rights, processes, remedies and sanctions. It is not, and does not purport to be, an exclusive code for the administration of youth justice. It caters for the young offender whose offending is not of the most serious order, which may be attributable to a lack of family support, or immaturity, and may also be impulsive or the result of peer pressure. It does not cater for young offenders, especially those approaching the age of 17, whose offending is alleged or is accepted to be so serious that it is tantamount to adult offending.

[26]   That means that it would not be open for this Court to apply the same approach to sentencing that is applied in the Youth Court. But the impact of youth on sentencing is still important, however, and has been more fully appreciated in more recent decisions. Most recently in Dickey v R the Court of Appeal said:10

There is no outer limit to the discount for youth in current sentencing practice but discounts of 10–30 per cent are common. Discounts may also be given for, among other things, guilty pleas, mental health, addiction and cultural factors. As Ms Brook acknowledged, the advent of s 27 reports has had a substantial impact on sentencing. Youth offenders commonly present with more than one mitigating factor. It is always necessary to stand back and make an overall assessment when sentencing, and manifest injustice is assessed as a matter of overall impression. Discounts overlap and there is a risk that some statutory purposes of sentencing can be lost sight of when they are treated separately

8      R v Ormsby-Turner, above n 4, at [26]–[28].

9      R v Pouwhare [2010] NZCA 268, (2010) 24 CRNZ 868 at [70] (footnotes omitted).

10     Dickey v R [2023] NZCA 2 at [175] and [177] referring to R v Rapira [2003] 3 NZLR 794 (CA) at [124].

and simply tallied up. But the point remains that some offenders present with a combination of personal mitigating factors which may collectively justify a sentence substantially less than that which would otherwise be imposed.

…

For these reasons we think it is no longer correct to say, as the Court did in Rapira, that youth can carry little weight when balanced against the public interest in denunciation and accountability. The seriousness and culpability of the offending remain centrally important. It also remains generally true to say that youth alone is not enough to establish manifest injustice. However, young persons may present with a combination of mitigating circumstances relevant to the offending and personal mitigating factors which together are capable of establishing manifest injustice. For these reasons, we accept the Crown’s submission that when sentencing a young person for murder a court must always undertake a s 102 analysis, giving careful consideration to whether life imprisonment is manifestly unjust.

[27]   Whilst these observations were being applied to the manifest injustice proviso in s 104 of the Sentencing Act 2002 they are plainly relevant to sentencing more generally. Given this approach it is not inevitable that imprisonment would be imposed if Tana’s sentencing remained in this Court. Given his guilty plea, the information in the s 27 report and the youth factor, home detention may be an available sentence. Moreover Ms Clarke’s submission was that more information can be made available from Oranga Tamariki, if necessary through the PAC report, as to the kind of detention that might be available. Ms Pascoe drew my attention to Youth Court decisions suggesting that there were not youth specific programmes in place to deal with young people based on information provided to the Youth Court by the Department for Corrections.11 But I understood Ms Clarke to suggest that there may well be more appropriate custodial arrangements that could be applied which could be explained to the Court.

[28]   I accept Ms Pascoe’s point that it would have been more helpful had that kind of information been made available to the Court for the purpose of this decision. But the key point is that imprisonment is not inevitable if the sentencing remains in the High Court, and there may be other options to consider. If the information contained in the report of Dr Knight and the s 27 report is confirmed, and that there is a genuine prospect of preventing Tana from a downward spiral into gang life, then there may be much to be said for a non-custodial sentence. Those issues would warrant detailed

11     R v [MQ] [2019] NZYC 456; New Zealand Police v SD [2018] NZYC 169.

consideration in the sentencing decision of this Court. By comparison, if this matter was remitted to the Youth Court the most severe sentence that could be imposed would be six months in a residential facility (ss 283(n) and 311 OT Act) coupled with 6–12 months supervision or mentoring (s 283(jb) and (k)).

[29]   There was some discussion over whether the Youth Court could further transfer the sentencing to the District Court under s 283(o) if it thought a more severe sentence was warranted on the receipt of further information. I accept that that would be technically possible if information came to light subsequent to this Court’s decision to transfer the matter back to the Youth Court. But it is not the way in which the provisions are supposed to operate in the normal run of cases. Section 276A(2) involves the High Court deciding whether the interests of justice require the proceedings to be dealt with in either the District Court or the High Court. And once remitted back to the Youth Court, the Youth Court would have no jurisdiction to transfer the matter to the High Court given the terms of s 283(o)(ii). I accept that the proceedings could nevertheless be transferred to the District Court under s 283(o)(i) if the new information suggested that the sentences available in the Youth Court were plainly inadequate, but that would be a complex and unusual path for the proceedings to have followed. The upshot is that once transferred back to the Youth Court the more severe sentencing options such as imprisonment are not likely to be available.

[30]   In those circumstances I have decided that in the interests of justice require the proceedings to remain in this Court for sentencing. That is because the current approach to sentencing in this Court involves a greater ability to deal with the sentencing in a similar way to the Youth Court, albeit without some of the fuller processes available in that Court. Retaining the sentencing in this Court allows the more severe sentencing options, such as imprisonment, to remain available. By contrast a transfer back to the Youth Court would likely eliminate imprisonment as a sentencing option. I cannot be sure at this point that imprisonment is not an appropriate option. It needs to remain on the table at this stage. It is in the interests  of justice that it remain available for consideration, and accordingly the interests of justice require the proceedings to remain in this Court.

[31]   Pursuant to s 276A of the OT Act, I determine that the proceedings will remain in this Court for sentencing. In the circumstances the sentencing should proceed before me if possible. A PAC report with appendices should now be prepared for sentencing. Information from Oranga Tamariki should also be made available. If counsel consider that any other reports should be directed they should file memoranda which I can consider for further directions.

[32]   Interim name suppression will remain in place. An application for permanent name suppression will now be required. I suggest that this be addressed at the sentencing hearing itself unless counsel propose otherwise by memorandum.

Cooke J

Solicitors:

Crown Solicitor, New Plymouth Nicholsons Lawyers, New Plymouth