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 The murder charge has now been withdrawn, however.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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ormsby-Turner

Details

AGLC: R v Ormsby-Turner [2023] NZHC 1099
Case: [2023] NZHC 1099
Decision Date: 10 May 2023

CaseChat Overview and Summary

The case of The King v Tana Ormsby-Turner revolves around the decision to determine whether the proceedings should remain in the High Court or be transferred back to the Youth Court for sentencing. Tana Ormsby-Turner, who was 16 at the time of the offending, had initially been charged with murder, leading to the transfer of proceedings from the Youth Court to the High Court. However, with the murder charge subsequently withdrawn, the issue arose as to whether the proceedings should revert to the Youth Court or continue in the High Court. The legal issues at hand centred on whether the interests of justice mandated that the proceedings remain in the High Court or be remitted to the Youth Court under section 276A of the Oranga Tamariki Act 1989.

The Court considered the statutory framework, notably section 276A(2), which imposes a strong presumption that 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. The interests of justice encompass a broad consideration of the facts and circumstances, including the seriousness of the offending and the differing approaches to sentencing between the Youth Court and the High Court. The Court also examined the developmental immaturity and moral compromise of the offender, as well as his potential for rehabilitation. The reports from Dr James Knight and the cultural report under the Sentencing Act 2002 played a crucial role in this assessment. They highlighted Ormsby-Turner's immersion in gang culture, his developmental immaturity, and his potential for rehabilitation and disassociation from gang life.

The Court ultimately decided that the interests of justice required the proceedings to remain in the High Court for sentencing. This decision was grounded in the seriousness of the offending, the potential for a non-custodial sentence that could effectively address the offender’s rehabilitation, and the need to keep imprisonment as a viable sentencing option. The Court recognised the importance of preventing young offenders from descending into a criminal lifestyle influenced by gangs. While acknowledging the youth factor and potential for rehabilitation, the Court concluded that a non-custodial sentence was not definitively ruled out and that the more severe sentencing options should remain available. Consequently, the Court determined that the proceedings should remain in the High Court for sentencing.

Orders