R v Ormsby-Turner
[2023] NZHC 406
•6 March 2023
ORDER PROHIBITING PUBLICATION OF PARTS OF THE JUDGMENT IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE. PUBLICATION IN LAW REPORT OR LAW DIGEST
PERMITTED.
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2022-043-937
[2023] NZHC 406
THE KING v
TURANGANUI JOHN ORMSBY-TURNER
Hearing: 6 March 2023 Counsel:
C E Clarke for Crown
P M Keegan for Defendant
Sentencing:
6 March 2023
SENTENCING NOTES OF CHURCHMAN J
[1] Mr Turanganui Ormsby-Turner you appear for sentencing having pleaded guilty to murdering Rei Marshall.1
[2] You must be sentenced to life imprisonment unless it would be manifestly unjust to do so.2 Exceptional circumstances are required for a finding of manifest injustice. There is no suggestion that, in this case, such exceptional circumstances exist.
1 Crimes Act 1961, ss 167(b) and 172 – maximum penalty life imprisonment.
2 Sentencing Act 2002, s 102.
R v ORMSBY-TURNER (SENTENCING NOTES) [2023] NZHC 406 [6 March 2023]
[3] The issue to be determination by me today is the minimum period of imprisonment (MPI) that you must serve. The statute says that the MPI for murder is 10 years.3
[4]I will start by setting out the factual basis to the offending.
Factual basis to the offending
[5] On the evening of 3 August 2022, you and [another person]4 met an associate, Hamiora Laupama, at an address on South Road, New Plymouth. The reason for the meeting there was to pick up another associate, the victim’s brother, Jahrim Mataira, and to then collectively go and see someone who owed you money. The South Road address is a known Mongrel Mob address, and all those who met there were members of the Mongrel Mob and you were the president of the West Coast Chapter of the Mongrel Mob.
[6] When you, [the other person] and Mr Laupama were sitting in a car at the address, Mr Mataira and the victim arrived in the victim’s car. You and [the other person] became agitated when you saw the victim due to his affiliation with a rival gang, Uru Taha, and the fact there had been issues between the two gangs.
[7] You then instructed [the other person] and Mr Laupama to go inside the address and get Mr Mataira so you could go.
[8] The victim had been walking in and out of the house putting items of food in his car that he was going to take to his mother. On leaving the house, Mr Laupama and the victim crossed paths, at which time there was an exchange of words between the two. Mr Laupama thought they were going to have a fight. The two walked towards one another. The victim aimed a punch that missed. You had with you a large black knife, approximately 25 centimetres in length. You moved from a position behind the victim and you stabbed the victim once in his torso with that knife. The knife penetrated the victim’s ribs and vital organs in his chest cavity.
3 Section 103.
4 Identifying particulars of co-offender suppressed pursuant to s 202 of the Criminal Procedure Act 2011.
[9] [The other person] then attacked the victim with a claw hammer, striking him multiple times on the head. The victim fell to the ground and [the other person] continued to attack him.
[10] Mr Mataira intervened to stop the attack. You then instructed those present to get the victim into the car and to take him to the hospital. Mr Mataira attempted to get the victim into the car and you assisted as Mr Mataira was struggling to do that. The victim’s partner drove Mr Mataira and the victim to the hospital, where the victim was pronounced dead as a result of his wounds.
[11] At the South Road address, you passed the knife and other items, including a jacket, to Mr Laupama and [the other person] and instructed them to dispose of the items.
[12] You remained at the South Road address and commented to another occupant of the address that they needed to clean the place up. They then threw buckets of water on areas of blood on the porch and the grass.
[13]Mr Laupama and [the other person] returned to the address to pick you up.
[14] You went to your house where you and the others removed the items of clothing you had been wearing during the attack. Mr Laupama’s phone was designated as the phone that would be used if a phone was required and the other phones were discarded.
[15] You then travelled to an associate’s address where [the other person] took the items of clothing that you all had been wearing outside and burnt them. Some items were discarded out the car window on the way.
[16] Your partner drove to the associate’s address and Mr Laupama and [the other person] returned to your house in that vehicle.
[17] You and your partner took the vehicle that had been used throughout the evening to her parents’ address, where it was stored.
[18] On 8 August 2022, Police executed a search warrant at your house. The three people there exited the address but were arrested and taken to the New Plymouth Police Station.
[19] On 9 August 2022, Police executed a search warrant at an associate’s address, locating an area where items of clothing had been burnt, and on 10 August 2022, Police located in a stream a number of other items that had been discarded by Mr Laupama and [the other person], including the black knife.
Co-offenders
[20] As to your co-offenders, Mr Laupama has pleaded guilty to being an accessory after the fact and was sentenced to five months’ home detention. [The other person] has pleaded guilty to wounding with intent to cause grievous bodily harm (GBH) and being an accessory after the fact. He is awaiting sentence.
Victim impact statements
[21] The Court has received victim impact statements from friends and family of the victim, including the victim’s fiance and her mother, and you have heard the victim impact statements read in Court this morning. Those statements evidence the devastating emotional impact that the offending has had on the victims, including the effects on their mental health. The victim’s family members describe a number of emotions, including loneliness, grief, sense of loss and the other struggles that they have faced as a result of the victim’s death, as well as having to undergo counselling to deal with the various issues and consequences of the victim’s murder.
Pre-sentence reports
[22] I turn now to address the various reports that have been provided to me, principally a Provision of Advice to Court (PAC) report and also a s 27 cultural report which is more extensive in its contents than the PAC report.
[23] Those reports detail your involvement in the Mongrel Mob and your exposure to drugs, alcohol and violence from an early age. [Redacted] They also refer to you
as saying that you he tried to stay away from gangs “but they always sucked you back in again”.
[24] The reports describe your pride in being Māori, the importance of mana to you, and the loss of mana that you have experienced as a result of this offending.
[25] You told the s 27 report writer that you knew that your actions were wrong. You said you didn’t intend to hurt the victim the way you did and you placed him in the car so that he could be taken to hospital. You said that you were hopeful that the victim would survive. You also said you are prepared for a long sentence and you acknowledge that no matter what length of the sentence is, it will not bring the victim back or give peace to the family.
[26] You told the report writer that you were “100% sorry” for what happened. You have expressed hope to one day be able to participate in restorative justice with the family of the victim, although acknowledging that could be some time in the future. You have said you were “completely prepared to do it” and “genuinely keen” to show them you were “deeply sorry” for the harm you have caused, and I trust that you will honour those statements that you have made.
[27] You also acknowledged that you have done wrong. You indicated that you were ready for change. The report describes an intention that you have expressed to be a “different person” when you are ultimately released back into the community after what you acknowledge would be a lengthy term of imprisonment, and your hope to be able to look back in the years that you will spend in prison knowing that those years have not been “wasted”.
[28] According to the report writer, you understand that although the childhood trauma that you experienced was not your fault, you know that healing for that is your responsibility, and the report says you intend to reach out and seek professional help as might be available to you to do that. The report says you acknowledged your need to address and deal with the past, so that you can be “the best version” of yourself.
Sentencing
[29] I now turn to the issue of sentencing and the various technical matters that I am required to consider before ultimately determining what your final sentence will be.
[30] It is accepted that none of the specific exceptional circumstances in s 104 are engaged in this case. Section 102 of the Act provides a presumption that you must be sentenced to imprisonment for life unless it is manifestly unjust to do so. The Court of Appeal has recently emphasised that this provision reflects the value placed on the sanctity of life and the Court would rarely depart from that presumption for those convicted of murder, and only in exceptional circumstances.
[31] The Court must also order that you serve a minimum period of imprisonment (MPI) to satisfy a number of specific purposes, and they are:5
(a)holding you accountable for the harm done to the victim and to the community;
(b)denouncing your conduct in this case;
(c)deterring you and other people from committing such offences in the future; and
(d)protecting the community from you.
Submissions of the parties
Crown submissions
[32] I turn now to address the submissions that have been made by both the Crown and the defence. The submissions have been set out extensively in writing and highlighted in the oral submissions made this morning.
5 Sentencing Act, s 103(1) and (2).
[33] The Crown submits that an appropriate final MPI, final in the sense after the various discounts have been added, to be in the vicinity of 12 years. The Crown submits this was an explicit gang-related murder and therefore the starting point before discounts in the vicinity of 14 years is appropriate. The Crown does not seek any uplift for your previous convictions as it could have done.
[34] The Crown accepts that a discount is appropriate for your guilty plea, as well as a small discount relating to your personal circumstances as set out in the cultural report that I have discussed, as well as some level of remorse that you have expressed. The Crown submits that these discounts must be more limited than in sentencing for other violent offences as a result of s 103 of the Sentencing Act, and submits that the discount should be in the vicinity of two years.
Defence submissions
[35] Your defence counsel submits a starting point of no more than 13 years for the MPI is warranted in this case. Counsel submits that there are no personal aggravating features to warrant an uplift to that starting point, but that there should be discounts in relation to the various mitigating features, including your guilty plea and the personal circumstances that I have discussed, and equal emphasis on your relative youth, although at 26 years of age you are at the extreme upper end of what could be described as a youth. He also refers to what is said to be your remorse and, what he describes as the potential for your rehabilitation. He submits that a discount in the order of two to three years is warranted in view of these factors, submitting that the end point for the MPI should be around 10 to 11 years.
Purposes and principles of sentencing
[36] I now set out the principles and purposes of sentencing that I am required to consider when arriving at the ultimate sentence.
[37] I am obliged to take into account the principles that are set out in s 8 of the Sentencing Act. The most relevant of those principles are:
(a)the gravity of the offending, including your culpability;6
(b)the general desirability of consistency between sentences for similar offending;7 and
(c)the information that has been provided to the Court concerning the effect of the offending on the victims.8
[38] I may also take into account as relevant the principle set out in s 7 of the Sentencing Act. The most relevant of those principles are:
(a)to hold you accountable for the harm done to the victims and the community by the offending;9
(b)to promote in you a sense of responsibility for, and an acknowledgment of, that harm;10
(c)to provide for the interests of the victims;11
(d)to denounce the conduct in which the offender was involved;12
(e)to deter you and others from committing the same and similar offence;13
(f)to protect the community from you;14 and
(g)to assist in your rehabilitation and reintegration.15
6 Section 8(a).
7 Section 8(e).
8 Section 8(f).
9 Section 7(1)(a).
10 Section 7(1)(b).
11 Section 7(1)(c).
12 Section 7(1)(e).
13 Section 7(1)(f).
14 Section 7(1)(g).
15 Section 7(1)(h).
Starting point
[39]I turn now to the appropriate starting point.
[40] As you have heard, the respective contentions of the Crown and the defence as to what the starting point should be are relatively close, with the Crown submitting a starting point in the vicinity of 14 years, and the defence a starting point of no more than 13 years.
[41]There are a number of aggravating features in this case and they include:
(a)the offence involved the use of a large knife as a weapon;16
(b)the loss of life and extent of the injuries to the deceased, along with the resulting loss and harm to the victim’s family, as was evidenced in the victim impact statements that were read to the Court and the others that were not read but which I have read;17
(c)the gang element to the offending is also an aggravating feature, particularly as you are involved a role of some seniority, leadership in the gang as president of the West Coast chapter, and the victim was a prospect for another gang;18
(d)your previous convictions which, while limited, I note do include assault with intent to injure and unlawful possession of a firearm;19 and
(e)the presence of multiple offenders and your conduct afterwards in directing his co-offenders to assist with disposing of items of evidence.20
16 Section 9(1)(a).
17 Section 9(1)(d).
18 Section 9(1)(hb).
19 Section 9(1)(j).
20 Section 9(4).
[42] The Crown submits that there was an element of premeditation on your part to the extent you were carrying a large knife with you, which could only have been for the purposes of inflicting injury.21
[43] Your defence counsel has made the contrary submission, and after carefully reflecting on that, I am prepared to accept your defence counsel’s submission on that point in that the actual offence had a spontaneous component to it, and was your response to the situation that you found yourself in. I accept the submission made by your defence counsel that on that particular day, you were not actively seeking out the victim for a confrontation, and I note that you stabbed the victim only once before then seeking help for the victim, and it is a matter to your credit that you assisted in putting the victim in a vehicle so he could be taken to hospital.
[44] There are a number of cases which deal with the length of a MPI in a situation where there has been gang involvement in a murder.22 Both counsel, in their written submissions, have referred me to what I accept is the leading case, R v Kahia. That is a useful comparator as to the appropriate length of MPI imposed in a gang-related stabbing.23 In that case, Mr Kahia and two others sought out the victim to arrange a further altercation. On seeing him walking along the road, Mr Kahia’s brother began fighting with him. Mr Kahia stepped in and stabbed the victim three times in the chest, resulting in the victim’s death. There had been efforts subsequent to the attack to hide the offending, including attempting to clean the car that Mr Kahia had been in, and to dispose of clothing. Following trial, Mr Kahia was sentenced to life imprisonment with a MPI of 12 years. Wylie J considered the aggravating features in that case warranting a starting point for the MPI of 13 years included Mr Kahia taking a knife to a fist fight, involving himself in violence which had nothing to do with protecting him or his brother, and the presence of multiple attackers and a gang dimension to the attack.24
21 Section 9(1)(i).
22 R v Kahia [2019] NZHC 1021; R v Karaka HC Wellington CRI-2007-091-4694, 15 May 2009; and R v Moala HC Auckland CRI-2006-092-461, 12 December 2007.
23 R v Kahia, above n 22.
24 At [34]–[37].
[45] I consider that your offending in this case involves a number of similarities with the offending in that case, including the gang dimension, the use of a knife, and involvement of more than one attacker. However, I note that in contrast with the defendant in R v Kahia, you did not actively seek out the victim and did not repeatedly stab him. In addition, as I have mentioned, there were some efforts to dispose of evidence following the murder, and that is also a distinguishing feature to R v Kahia. Also, in your favour, is the fact that you rendered some assistance to the victim.
[46] Given the similarities to the offending in R v Kahia, and having regard to the other cases cited by your counsel that I do not propose going through in detail,25 I consider that a starting point for the MPI in this case is 13 years.
Adjustments
[47] I turn now to the adjustments that are to be made. No uplift to this starting point is sought by the Crown. There are, however, several mitigating factors on your behalf which are potentially relevant to the starting point, and I have concluded warrant an adjustment.
Guilty plea discount
[48] Firstly, I consider that you are entitled to a discount to recognise your guilty plea, which was entered on 2 December 2022.26 Your counsel has submitted that you pleaded guilty at the case review hearing which was the first possible opportunity once the pathologist report was received. The Crown has accepted that a discount is available, although the Crown’s submission was that any such discount should be limited.
[49] Discounts to the MPI for guilty pleas in cases of murder are essentially at the discretion of the sentencing Judge.27 There are a number of relevant cases. In Malik v R, the Court of Appeal held that the guilty plea deduction scale which had been established for general offences in Hessell v R was not to be followed, given that the
25 See also R v Sauaki HC Auckland CRI-2006-092-9497, 31 October 2007.
26 Sentencing Act, s 9(2).
27 Malik v R [2015] NZCA 597 at [33]–[34].
Hessell deduction applies to finite sentences, as opposed to sentences of life imprisonment, whereas a MPI increases the time to be served before a prisoner is eligible for parole, and the applicable statutory criteria are much narrower.28
[50] Rather, it is established that generally a guilty plea discount in cases of murder will be in the vicinity of one to two years.29
[51] This is evidenced in a number of cases. I refer to R v Marsters where Walker J provided a guilty plea discount of two years from the starting point of a MPI of 14 years.30 In so doing, her Honour stated:31
[39] The greatest guilty plea discount available in sentencing for murder is more limited than the maximum 25 per cent discount available in respect of other offending. It cannot exceed two years …
[52] In R v Peeni, Lang J considered the defendant’s guilty plea, entered “at the very earliest stage” must also be balanced against the inevitability of conviction in that case if the defendant had defended the charge. He concluded that it had warranted a discount of 18 months from what was, in that case, the mandatory MPI of 17 years.32
[53] In another case, R v Garson, involving a starting point of 17 years, Gordon J adopted a discount of 12 months for the defendant’s guilty plea, which was entered only six weeks before the trial was due to commence.33
[54] Another case, Sio v R, involving a starting point of 18 years and three months, Gault J considered a discount of two years was appropriate to recognise the offender’s guilty plea, even though the plea was entered around one month prior to trial.34 There are some contrary cases, a decision in R v Singh, Tahana J considered only a “modest discount” should be applied for a guilty plea entered three weeks before the trial.35
28 At [35]; and Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607; and see Momoisea v R [2019] NZCA 528 at [37].
29 R v Peeni [2020] NZHC 1352 at [24]; R v Garson [2020] NZHC 3259 at [60]; and R v Gottermeyer
[2014] NZCA 205 at [85].
30 R v Marsters [2021] NZHC 2117 at [39].
31 R v Marsters, above n 30, citing R v Peeni, above n 29, at [24]; and R v Garson, above n 29, at [60].
32 R v Peeni, above n 29, at [24] and [33].
33 R v Garson, above n 29, at [60] and [69].
34 R v Sio [2021] NZHC 1709 at [45], upheld in Sio v R [2022] NZCA 337 at [42].
35 R v Singh [2022] NZHC 2243 at [70].
This “modest discount” was factored into the one-year discount off the starting point for a MPI of 11 and a half years.
[55] Finally, I mention R v Brider, a very recent decision of this Court, where the defendant’s guilty pleas were the only mitigating factor that applied.36 Eaton J considered a discount of 18 months from the MPI notional starting point of 23 years was warranted, in circumstances where the pleas were entered nine months after the defendant was first charged and, in his words, were “notably devoid of remorse or empathy.”37
[56] In your case the guilty plea was entered at the case review hearing on 2 December 2022, four months after the charges were first laid. This was also some seven to eight months before trial that had been scheduled to commence in June or July this year. Although the evidence against you was strong, I accept there is an element of responsibility inherent in your guilty plea, and that the plea ended uncertainty for the victim’s family and avoided the necessity for a trial.
[57] Overall, having regard to the circumstances of the case and the discounts provided in the other cases, I am prepared to grant you a discount of 18 months in recognition of your guilty plea.
Personal circumstances
[58] I must now turn to consider your personal circumstances to determine whether, and to what extent, they might also justify any other discount.
[59] I have reached the conclusion that some discount to the MPI is warranted in recognition of your personal circumstances, in particular, the matters set out in the cultural report. I am not going to detail those but I have had regard to them and there are clearly matters of causative contribution between the factors that are mentioned in that report and the actions that you engaged in.
36 R v Brider [2023] NZHC 56 at [67].
37 At [69].
[60] I accept your background and your upbringing are relevant, as is the level of remorse that the reports indicate that you have experienced. I also have regard to your relative youth and such potential as you have for rehabilitation.
[61] These discounts are available where they are causatively connected with the offending.38 I accept that the s 27 cultural report makes the connection between the factors mentioned and your actions in this regard. So, even in cases as serious as this murder, the Court is obliged to consider those factors although the Court of Appeal has held that “the gravity of the offending might temper the extent of any discount allowed for such considerations”.39
[62] The discretion that the Court has is typically more constrained in cases of murder, due to the need to impose a MPI that is consistent with s 103 and the legislative policy mandating the statutory MPI.40
[63]It is also clear that the Court of Appeal’s recent discussion on this point in
Webber v R where the Court said after listing the purposes of s 103:41
[33] Section 103(2) thus clearly signals Parliament’s intention that marking the inherent seriousness of the offending is to be a sentencing court’s particular focus when setting an MPI for murder. It is for this reason that discounts for personal mitigating factors have played a lesser role in such cases …
(emphasis added)
[64] I have detailed earlier the various relevant matters. There is also evidence that you wish to restore your mana and repair the damage that you have done, including, as I mentioned, restorative justice.
[65] I accept that there is some prospect for your rehabilitation provided that you engage in counselling and that you seek and accept the professional help that will be available to you.
38 Carr v R [2020] NZCA 357 at [60] and [65]; Berkland v R [2022] NZSC 143; and Solicitor- General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.
39 At [65].
40 Hohua v R [2019] NZCA 533 at [44], citing R v Williams [2005] 2 NZLR 506 (CA) at [66]–[67]; and see Sio v R, above n 34, at [39].
41 Webber v R [2021] NZCA 133.
[66] I must balance against that the continued effects of the continued association with the gang may have and I have to acknowledge that if you continue to follow that way of lifestyle, the prospects for your ultimate rehabilitation as you claim you are seeking, are significantly reduced. So, I am proceeding on the basis that you are genuine in the comments that you have made to the s 27 report writer about your hopes and aspirations for the future.
[67] Having regard to the discounts that the Courts in other comparable cases have imposed, and acknowledging that such discounts have a much more limited availability in cases of murder, I am of the view that a further one-year discount to the MPI is appropriate in the present case.
Calculation
[68] These discounts, taken against the starting point for the MPI of 13 years, result in a final MPI of 10 and a half years’ imprisonment.
[69] This must be the minimum that the Court considers necessary to hold you accountable for the harm caused, to denounce or deter the conduct and protect the community. Having regard to the circumstances of the offending and to your circumstances, I am satisfied that the MPI of 10 and a half years is appropriate.
Sentence
[70]Mr Ormsby-Turner, would you now stand.
[71] On the charge of murdering Mr Rei Marshall, I hereby sentence you to life imprisonment, with a minimum period of imprisonment of 10 and a half years’ imprisonment.
[72]You may stand down.
Churchman J
Solicitors:
Crown Solicitor, New Plymouth for Crown
cc: P M Keegan, New Plymouth for Defendant
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