R v Ottley
[2016] NZHC 1324
•17 June 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-009-002479
CRI-2015-409-000132 [2016] NZHC 1324
THE QUEEN
v
RICKY JOHN OTTLEY
Hearing: 17 June 2016 Appearances:
A S Williams and N A Pointer for Crown
G Dixon for PrisonerJudgment:
17 June 2016
SENTENCING NOTES OF DUNNINGHAM J
[1] Mr Ottley, as you know, you are appearing for sentencing today, having been found guilty by a jury in the High Court, first on 12 February, when you were convicted of:
(a) two charges of sexual violation by unlawful sexual connection, and
the maximum penalty for that is 20 years’; and
(b) one charge of male assaults female, where the maximum penalty is
two years’ imprisonment.
[2] Those charges relate to your first victim, A, a woman with whom you were in a relationship.
R v OTTLEY [2016] NZHC 1324 [17 June 2016]
[3] You are also, of course, appearing for sentencing, having been found guilty by a jury in the High Court in Christchurch on 19 February 2016 and then convicted on:
(a) two charges of sexual violation by rape, where the maximum penalty
is 20 years’ imprisonment;
(b)two charges of sexual violation by unlawful sexual connection, where the maximum penalty is 20 years;
(c) one charge of kidnapping, where the maximum penalty is 14 years;
(d)two charges of threatening to kill, where the maximum penalty is seven years; and
(e) one charge of male assaults female, where the maximum penalty is
two years’ imprisonment.1
[4] Those charges relate to your second victim; B, again someone with whom you were in a relationship with.
[5] So I will now set out in brief the factual basis of the offending for which you are being sentenced.
[6] The first three convictions are for offences which occurred in the context of the relationship you had with Ms A between February 2014 and December 2014. She lives in Mosgiel and you would travel down and stay with her approximately every fortnight. The relationship started well and you told the victim that you were going to marry her. However, your behaviour changed as the relationship progressed. The male assaults female charge arose sometime between April and July 2014 when your victim became suspicious, correctly as it turns out, that you
were seeing someone else and you were always on the phone. An argument resulted
1 I erroneously said one charge of male assaults female when, in fact it was four and I omitted to refer to the charges of perverting the course of justice and assault with a weapon.
when you picked up her phone, smashed it on the ground and when she went to pick it up you slapped her around the head and she described it as “bombing” her ear.
[7] The next charge of sexual violation by unlawful sexual connection occurred during September of that year. Ms A and you had engaged in consensual sexual intercourse. You then repeatedly tried to roll her onto her stomach in order to have anal intercourse with her. She clearly stated she did not want to partake in that type of activity. She protested, but was physically unable to stop you forcing yourself on her in this way. She yelled at you to stop and said she did not like it, but you did not stop and had anal intercourse despite her protests.
[8] The final charge involving this victim occurred about a month later. She was taking medication for severe pain which would cause her to sleep heavily and become drowsy. On the night in question she took such medication and went to bed. It was during this time that you inserted a small set of zumba dumbbells into her vagina. When she awoke the next morning she was in considerable pain around her vagina and anus. When she saw the dumbbells at the bottom of the bed she challenged you about violating her while she was asleep, you simply replied “I just had a bit of a play” and “I like it when girls are so relaxed”.
[9] The charges which relate to the second victim, Ms B, arose when she attempted to end a relationship you had with her. This relationship had commenced while you were still seeing Ms A. On 12 March 2015, Ms B told you not to come to her new address as she wanted some time out from the relationship. Rather than comply with the request you came around to where your victim was living, along with her brother. When she told you the relationship was over and asked you to leave, you refused and grabbed her around the throat for a couple of seconds. You then grabbed a large kitchen knife from a knife set and held a knife next to her throat. Before you left you threatened to slash the tyres on her car.
[10] The next day you arrived at her house unexpectedly and pushed your way through, past her brother to her bedroom. You pushed her around and hit her with an open hand. You pushed her onto the bed, you said she owed you $60 for two new tyres for her car and you said that she could “fucking pay for it now”. You then
made repeated threats to the victim that you would kill her if she told anyone. You detained her in the bedroom and then in the lounge and refused to allow her to leave the house. You held her on the bed or on the couch in the lounge and would slap her if she tried to get up. You also threatened to hurt her brother, who is someone with learning disabilities, if she yelled out. You only let her go around 6.00 pm that evening when your son arrived to help collect his motorbike.
[11] On the next day, you again arrived at her address unexpectedly. You went straight to her bedroom and punched her twice in the side of the head. During the assault you made repeated threats to kill her. You said you would stab her with a screwdriver, including in her vagina. You also said you would kill her, you hated her and she would not be alive by the end of the night.
[12] During the assault you pulled her hair with such force that a clump of hair was torn from her scalp. You also put your hand around her throat and began squeezing it. When she was lying on the bed, you got on top of her and forced your hand into her vagina. Although she was saying “no please don’t do this”, you then raped her, and then you threatened to put the screwdriver in her vagina. You then flipped her over and anally raped her and then flipped her over again and vaginally raped her. All the time you were telling her that you hated her and she would not be alive by the end of the night. It was only when a friend was able to be contacted by her brother that the situation was defused.
[13] The final charge relates to contact you made with the victim by telephone after you were remanded in custody. You also used your son to contact her to encourage her to withdraw the allegations she had made.
[14] I do not need to detail all the exchanges which occurred, but as a result of the contact you made with the victim, both directly and through your son, Ms B provided statements retracting her allegations, but as the jury found, those retractions were untrue statements.
Purpose and principles of sentencing
[15] In sentencing you today I have to have regard to the purposes of sentencing. In particular, I consider here:
(a) I need to hold you accountable for the harm you have done to your victims and to promote a sense of acknowledgment of that harm in you;
(b) the need to provide for the interests of your victims;
(c) the need to denounce your conduct and deter you and others from committing similar offending; and
(d) the need to protect the community from you.
[16] While preventive detention is sought, I first need to consider what finite sentence in respect of these charges would be, in deciding whether to impose preventive detention, as I must take into account the principle that a lengthy finite sentence is preferable if that provides adequate protection for society.2
Setting the starting point
[17] Now, the lead charges are those of sexual violation by rape. I therefore propose to set the start point by reference to, what we call rape-band in sexual offending, (and that covers the two counts of sexual violation by rape and the four counts of sexual violation by unlawful sexual connection), and that is according to the guideline judgment you have heard the lawyers talk about in R v A M.
[18] I intend to approach this slightly differently from the approach adopted by both the Crown and your lawyer. They have each proceeded on the basis that the offending against each victim is to be considered separately and cumulatively and that leads to the Crown and your lawyer to reach sentences of 33 and a half years and
29 years’ imprisonment respectively. They then necessarily had to propose a
2 Section 87.4(e).
substantial discount to reflect the principle of totality. I appreciate that counsel are likely to have adopted this approach as a way of recognising the harm suffered by each individual victim. However, as that judgment in R v A M, said, it is important to adopt a “common sense approach to overall culpability”.3 That is what I propose to do here by considering the offending against both victims together in reaching an end sentence which takes into account the harm caused to each victim but still takes
into account that principle of totality.
[19] Because I am considering all the offending together, it is appropriate to have regard to the fact that your offending involves more than one victim.4 This serves as a significant aggravating feature increasing your culpability. Another aggravating feature is that both victims were somewhat vulnerable, being physically smaller in relation to you, and in the circumstances where they were in their home at the time of the sexual violations.
[20] The offending against Ms A involved a breach of trust. You were essentially living with this victim, and the sexual violations occurred within the home and in breach of the trust arising from your relationship. Your actions have clearly caused harm to Ms A. I think this is especially so in respect of the sexual violation involving the dumbbell, which I consider exhibits a degree of cruelty. The lingering impact of what you have done is made clear in her victim impact statement.
[21] Your offending is further aggravated by the fact that it was committed while you were still on parole in respect of a sentence of 12 years’ imprisonment imposed upon you for remarkably similar violence and sexual offending.
[22] The offending against Ms B also discloses a number of serious aggravating factors. It is marked by a high level of violence. The sexual violations were committed in the context of various assaults (both with your hand and a weapon) and the death threats from you. This victim was subjected to this violent ordeal for several hours, during which she was sexually violated several times. The sexual offending was committed in the context of a degree, I consider, of home invasion.
You knew you were not welcome but you nevertheless came into the home against your victim’s wishes. The events leading up to the day on which the sexual offending was committed, and your statements to the police, indicate you went to the victim’s house with the intent of killing her. There is a reasonable degree of premeditation present in this offending.
[23] I note that the second victim, Ms B has not provided a victim impact statement. However, the offending against her was objectively the most substantial and serious and the facts as found by the jury speak for themselves as to the level of violence, which she suffered.
[24] I do not consider there were any real mitigating factors of the offending. You have denied virtually all of the offending, except the threatening to kill, and obviously you have exhibited no remorse.
[25] In relation to the anal violation against Ms A, your lawyer refers me to that decision in R v AM, where the Court indicated that in certain circumstances, where the sexual violation has been immediately preceded by otherwise consensual sex, culpability may be lessened.5 However, as the Court said in that case, it would depend “on the type of earlier consensual activity, and the similarity to what comprised the sexual violation, and the timing”.6 Ms A may have been consenting to vaginal intercourse immediately prior, but she made it clear to you that she was not consenting when you attempted, and then continued, to change the nature of the sexual act to anal intercourse. Those two acts are very different things, and in my view, your culpability is not lessened to any appreciable extent for this reason.
[26] So this case involves the presence of several aggravating factors to a moderate degree, including the factors of premeditation, vulnerability, detention of the victim and home invasion. It involves at least one factor to a very serious degree, namely the high level of violence committed against Ms B, and of course, it involves offending against more than one person. I therefore consider the
appropriate starting point is the upper end of Band 3, or the bottom of Band 4, at
around 16 years’ imprisonment.7
Uplift for other violence offending and previous record
[27] Now having reached a starting point in respect of the six counts of rape-band offending, I need to uplift that to reflect the other violence-related charges. Although the degree of harm in relation to those charges is not high, they are serious charges in themselves, and some of them attract high maximum penalties.
[28] Any uplift I give needs to take into account the totality of the sentence. And because the violence inherent in the majority of these charges has also been taken into account when I set the start point for the sexual offending, I do have to be careful not to double-count. Bearing this in mind, I consider that an uplift of two years’ is appropriate for the other violent offending.
[29] I also have to take into account your previous criminal record, especially as it discloses a concerningly-similar type of sexual and violence offending. Although following a different approach to sentencing, the Crown has indicated an uplift of one year is appropriate to reflect this, and I agree.
[30] So the end sentence for the sexual and violence-related offending I have reached is 19 years’ imprisonment.
Attempting to pervert the course of justice
[31] We then come to the attempt to prevent the course of justice. Although it is related to the general context of your offending, the last charge is of a different kind and nature to the violence and sexual charges of which you were convicted. Both the Crown and your lawyer have submitted that a cumulative sentence is appropriate, and I agree.
[32] Both counsel have said that, viewed individually, this is offending which could attract a sentence of imprisonment of three and a half years. The Crown refers
7 R v AM, above n 1, at [90(c)].
to recent Court of Appeal authority which is said to have changed the approach to starting points in relation to this kind of offending.8 The charge carries a maximum of seven years’ imprisonment, and the Court considered that starting points of three years for serious offending were not consistent with that maximum penalty.
[33] In isolation, I would be adopting a starting point of around three and a half years’ imprisonment for this offending, which I consider to be of mid-level severity. However, I have to have regard to the principles of totality, because I am going to impose this sentence on top of cumulatively to the other sentence, and the end result must be “a total period of imprisonment that is not wholly out of proportion to the
gravity of the overall offending”.9 For this reason, I consider a sentence of one and a
half years’ imprisonment to be served cumulatively to be appropriate.
[34] I therefore reach a finite sentence of 20 years six months’ imprisonment for the whole of your offending.
Minimum term of imprisonment
[35] The Crown has advocated for a minimum period of imprisonment of
10 years. Given the seriousness of this offending and the fact it was committed while you were on parole for similar offending, I do consider there is a substantial need to protect the community and I consider that a minimum period of imprisonment of 10 years is appropriate.
Preventive detention
[36] So, I now turn to that question of preventive detention. As you understand, you meet the first two qualifying criteria for a sentence of preventive detention, because you have been convicted of a qualifying offence and you are over 18.
[37] Health assessors’ reports have been obtained to provide guidance on the third
qualifying criterion, which is that the Court is satisfied that you are a person who is
8 M v R [2003] NZCA 385.
9 Sentencing Act 2002, s 85(2).
likely to commit another qualifying, sexual or violence offence if you are released at the sentence expiry date.
[38] In that regard, Ms Waugh, a clinical psychologist, has found that your risk of sexual offending is considered at moderate-high and that if you sexually reoffend it is likely to be against a woman with whom you have been in a relationship. She says you use sex and violence as a way of gaining power and asserting yourself with your victims and she describes you as “somewhat insightless as to the harm [you have] perpetrated”.
[39] Dr Panckhurst, a consultant psychiatrist, found that while he was unable to provide an opinion as to the likelihood of further offending once released because it is so far in the future, there were a number of factors which indicated that you were at significant risk of sexual and violent offending. He also noted that you posed an elevated risk of reoffending in the context of future intimate relationships. He says you exhibit a large number of the risk factors that correlate with an increased risk of sexual violence. In this regard he identified the combination of sexual deviation; suicidal/homicidal ideation; relationship problems; physical harm to victims; use of weapons and threats of death in sex offences; escalation in frequency of sex offences (after your 2013 release); and your denial of offending. These all indicate you have a significant risk of further sexual and violent offending.
[40] I am therefore satisfied that you are someone who is likely to commit another qualifying, sexual or violence offence when released at the end of your finite sentence. However, the existence of these qualifying criteria does not of itself mandate a sentence of preventive detention. It is still a matter of discretion and each of the factors in s 87(4) has to be considered. So I will now briefly consider those.
Any pattern of serious offending disclosed by the defendant’s history – s 87(4)(a)
[41] It is obvious the offending that you have been convicted of is similar offending to the earlier offending for which you were imprisoned. It shows a clear pattern which I need to take into account.
The seriousness of harm to the community caused by the offending
[42] The harm you caused to your first victim is significant as was demonstrated by her victim impact statement. However, all your offending including your offending for which you were imprisoned in 2003 has clearly caused harm to your victims.
Information indicating a tendency to commit serious offences in the future –
s 87(4)(c)
[43] You have committed serious offences of sexual violence against three women now and the only gap in your offending against these women occurred while you were in custody. So there is a clear evidence of a tendency to commit serious offences in the future.
The absence of or failure of efforts by the offender to address the cause or causes of the offending – s 87(4)(d)
[44] In terms of the absence of or failure of efforts by you to address the causes of your offending, you have had some treatment with departmental psychologists in
2012 and in 2013. Despite this treatment you have reoffended. It seems from Dr Panckhurst’s report that you have gained an intellectual understanding of the content of the work done with psychologists, but you have not yet been able to apply the learned strategies to your post-release circumstances. You have, however, advised the probation officer in her report to the Court that you are willing to engage in treatment programmes to help understand your actions.
[45] There are recommendations in both the health assessors’ reports for the type of further programmes which would assist you (Ms Waugh refers to the programme provided by the Matapuna Special Treatment Unit at Christchurch Men’s, and Dr Panckhurst refers to the Kia Marama Programme). However, he observes that while you deny your offending it is unlikely you will be accepted for treatment programmes.
The principle that a lengthy determinate sentence is preferable as this provides adequate protection for society – s 87(4)(e)
[46] So the last consideration is the principle that a lengthy determinate sentence is preferable if it provides adequate protection for society. In this regard, I note you are aged 53. I have proposed a very long finite sentence. It is possible you will be into your seventies before you are released. I accept that, old age, of itself, is no guarantee that your ability to engage in serious sexual and violence offending is addressed. However, I accept, it is a factor which is likely to diminish the risk.
[47] I also take account of the fact that your offending has occurred in defined circumstances. It has taken place in the context of intimate relationships. I consider that is a risk that can be more readily managed, than the risk posed by a sexual offender whose potential victims are not so readily identified. One possibility for management of such risk is through the imposition of an extended supervision order at the end of your sentence. I also note, you reported to your probation officer that when on prescribed medication, you found you were able to manage your emotions and you did not “lose the plot”. This, too, suggests that with appropriate monitoring and support you can function well in society and have positive relationships, such as those that you appear to have with your children.
[48] Your counsel accepts that the decision as to whether preventive detention is imposed will be finely balanced. It is. However, having regard to your age, the length of sentence, the expressed willingness to at least manage your anger outbursts better (despite your denial of the offending) and the options for managing your risks after release, I have decided that the lengthy determinate sentence will provide adequate protection for society.
[49] So Mr Ottley, I will now get you to stand and I will impose sentence. On the charges involving your victim Ms B, I sentence you as follows:
Charges – Ms B Charge Sentence Charges 11
and 13
Sexual Violation by Rape 19 years imprisonment, with a
minimum period of imprisonment of
10 years.
Charges 10
and 12
Sexual Violation by Unlawful
Sexual Connection
12 years’ imprisonment, to be
served concurrently with the previous sentence.
Charges 3
and 5
Threatening to kill 2 years’ imprisonment, to be served
concurrently.
Charge 4 Kidnapping 2 years’ imprisonment, to be served
concurrently.
Charge 1 Assault with a weapon 1 year six months’ imprisonment, to
be served concurrently.
Charges 2, 6,
7 and 8
Male assaults female 8 months’ imprisonment, to be
served concurrently.
Charge 14 Attempting to pervert the
course of justice
1 year six months’ imprisonment, to
be served cumulatively on top of the above.
[50] In respect of the charges involving your victim Ms A:
Charges – Ms A Charges 2
and 4
Sexual Violation by Unlawful
Sexual Connection
12 years’ imprisonment, to be
served concurrently with the previous sentences.
Charge 1 Male assaults female 8 months’ imprisonment, to be
served concurrently.
[51] You may stand down.
Solicitors:
Raymond Donnelly & Co., Christchurch
Public Defence Service, Christchurch