R v Ottley Ca177/03

[2004] NZCA 389

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

177/03

THE QUEEN

v

RICKY JAMES OTTLEY

Coram:Glazebrook J John Hansen J Ronald Young J

Appearances: PHB Hall for Appellant

E M Thomas for Crown Judgment:      15 March 2004

JUDGMENT OF THE COURT DELIVERED BY RONALD YOUNG J

[1]    This is an appeal against a sentence of 12 years imprisonment for five counts of assault, two counts of kidnapping and 6 counts of sexual violation after a jury trial in the District Court at Timaru. In addition, the appellant submits that the minimum non parole period set at 7 years by the sentencing Judge is too long. The appeal against conviction was abandoned.

RICKY JAMES OTTLEY CA 177/03 [15 March 2004]

Sentence appeal

[2]The appellant faced a 17 count indictment at his trial.

[3]    The appellant and the female complainant (“Ms A”) had lived together for approximately 6 years in a de-facto relationship. There is one child of the relationship. These events occurred shortly after the break-up of this relationship.

[4]    On arraignment the appellant pleaded guilty to three counts of assault. The first on 14 May 2002 involved the appellant assaulting Ms A’s father by breaking his nose and dentures. The second assault also on 14 May arose because the appellant objected to Ms A’s association with another man (Mr S) the complainant in other counts. The appellant punched Ms A in the face. As a result, she suffered a broken nose and black eye. The appellant was charged with these offences in May, and bailed on conditions that he not enter Waimate and not associate with the female complainant.

[5]    The appellant shifted to  Christchurch  following the  14  May events.   On    7 June he returned to Waimate and demanded Ms A return to Christchurch with him. Because of the threats he made, she agreed. These facts supported the first kidnapping count. The second kidnapping was similar to count 4, and occurred on  10 June (count 7).

[6]    The remaining convictions arose from events on 16 June. The appellant  found the male complainant Mr S in Waimate and convinced him to take the appellant to see Ms A. When the appellant arrived he punched Ms A in the face breaking her nose again. The appellant also punched Mr S in the face. He then  forced both complainants to undress and forced Ms A to have oral sex with Mr S and vice versa. Ms A had her period at the time.  During these events the appellant bit  Ms A on the back and kicked her in the head. The appellant then took Ms A into another room and sexually violated her by inserting his hand in her vagina, anally raping her and finally thrusting his bloody fingers into her mouth.

[7]    The Judge in sentencing considered that it was one of the worst cases of sexual violation in one incident he had heard. He accepted that these events  occurred before the introduction of the Sentencing Act 2002 and therefore s8(d) of that Act, as to the circumstances under which maximum penalties might be imposed, did not apply. If s8(d) had applied the Judge considered a sentence of 14 years as a starting point could have been justified.

[8]The Judge identified the following as aggravating features.

(i)The most serious offending on 16 June occurred while the appellant was on bail.

(ii)The conduct on 16 June was a demonstration of power over Ms A and revenge given her involvement with Mr S.

(iii)The conduct was brutal, cruel and inexpiable.

(iv)There was no remorse.

(v)There were two complainants, multiple assaults and multiple sexual violations.

(vi)The offences occurred in the victim’s house.

(vii)The victim impact report described physical and emotional injury to both complainants.

[9]    The Judge adopted the starting point of 12 years including all aggravating features. He considered that there were no mitigating features and therefore imposed a sentence of 12 years on each of the six counts of sexual violation. Lesser concurrent sentences of between 6 months and 2 years imprisonment were imposed on the remaining counts.

[10]   The appellant submits that 12 years imprisonment was too long. He says that with reference to the totality principle the proper approach was for the Judge to

commence with a sentence of 12 years imprisonment and reduce that to 10 years imprisonment for the following reasons.

(i)Acknowledging the seriousness of the incident the appellant submits “it was effectively one incident”.

This submission ignores the earlier incidents involving violence and kidnapping of Ms A and violence to Ms A’s father and to Mr S. It also ignores the reality that the 16 June incident involved violence and very serious sexual assaults on two victims.

(ii)Complainant effect.

The appellant submits that Ms A especially has not been seriously adversely affected by the appellant’s conduct. It seems that Ms A continues contact (by letter) with the appellant in prison. The evidence of Dr Ratcliffe at trial makes it clear Ms A has suffered serious emotional trauma and at the least at the date of her report (2002) suffered from post traumatic stress disorder. The fact the victim is a compassionate and forgiving woman does not aid the appellant’s cause. The sentence should be set to reflect the  appellant’s culpability. The submission ignores the serious effect on Mr S as revealed in the victim impact reports.

(iii)No previous relevant convictions.

The appellant has no convictions for sexual offending.  He does have a history of previous violence to women.

(iv)Mitigating features.

Other than the very modest acknowledgement of guilty pleas to three of the assaults given by the Judge to the appellant nothing further was required.

(v)The appellant submits the usual starting point for an uncontested sexual violation involving rape is 8 years imprisonment.

There is no reason to distinguish starting points solely because the sexual violation is by rape rather than by anal intercourse (see R v Castles CA105/02, 23 May 2002). In this case injury was caused to Ms A as a result of the sexual violation. If this submission was intended to suggest a proper starting point in this case of 8 years then we reject it. Such a starting point should not reflect the seriousness of the offending.

(vi)Remorse.

The appellant’s submission is that based on counsel’s advice that it was implicit within the appellant’s instructions to abandon the appeal against conviction that he accepted the conduct occurred and was a demonstration of remorse. The Judge sentenced the appellant on the basis that he lacked remorse for the offending, and indeed as the probation officer observed was at high risk of re-offending. There  was nothing in the abandonment of the conviction appeal which illustrates any change in that assessment. The probation officer’s report compellingly illustrates the appellant’s failure to recognise and understand what is behind his conduct and why he remains a danger.

[11]   There is nothing in the appellant’s submissions, either individually or collectively, which would  justify  interfering  with  a  sentence  of  12  years.  The 12 years was well within the range available to the Judge for this offending. The offending against Ms A alone on 16 June would have justified a sentence well in excess of an 8 year starting point. It involved serious violence directly associated with serious sexual offending and humiliation of the victim. It occurred while the appellant was on bail with conditions that he not associate with the complainant. It occurred in the victim’s house. There were two offences of sexual violation against Ms A. A starting point, including aggravating features, of 10 to 11 years for the offending against Ms A alone on 16 June could easily have been justified. In

addition there was previous violence and kidnapping involving the same complainant and serious violence and sexual offending against Mr S. These together illustrate  that the 12 year starting point did not offend against the totality principle and reflected the very serious overall offending by the appellant. The Judge correctly identified that no additional mitigating features existed. We therefore conclude that the sentence of 12 years imprisonment was not manifestly excessive and well within the range available to the Judge.

Non parole

[12]As to the imposition of a non parole period, the Judge in sentencing said:

As to the question of minimum period under s 86 of the Act. I consider the circumstances of these offences are sufficiently serious to justify a minimum parole period for counts 11-16 inclusive. Obviously the circumstances of the case are well outside the ordinary range of sexual violation other than rape. I have considered what the Court of Appeal have said in the case of Grant CA 290/02 and Brown CA 238/02. Here you were solely culpable and there were, as I have said, elements of extraordinary callousness  with  two  victims – the offending, on your part, being imposed as punishment.

I now consider what proportion of the sentence on counts 11-16 should have to be served. It has got to be more than one-third. Two-thirds is eight years. Describing the conduct as I have, with the aggravating features I have highlighted, I impose a non parole period of seven years on counts 11 to 16.

[13]   The appellant, in support of his contention that the non parole period was excessive, submitted:

(i)The Judge gave no indication that protection of the public was necessary.

The Judge did not mention this explicitly as a factor, however, there was material on which he could have done so. The motivation for the offending was to enable the appellant to control the behaviour of the complainant Ms A. The appellant took the view that while he was  free to associate with other women, Ms A was not free to associate with other men. His actions during May and June and the escalating violence towards Ms A and Mr S show a man dangerously

determined to control Ms A’s life. Given the appellant’s attitude to  his offending, the probation officer unsurprisingly concluded he was a high risk of re-offending. We agree with this assessment.

(ii)The Judge failed to consider whether or not a non parole period of one-third was sufficient denunciation, punishment and deterrence.

While the Judge did not explicitly mention that he considered a non parole period of one-third was insufficient in terms of the Sentencing Act it is implicit in the Judge’s approach and no criticism could be made of his failure to expressly say so.

(iii)The appellant submits that this was not the worst case to have come before the Court and was not offending outside the ordinary type of offending of this particular kind.

These two submissions are usefully grouped together. This was very serious offending of an unusual nature. Regretfully, violence, including sexual violence, is not uncommon after separation. This offending was outside the ordinary range of offending of this type. It involved escalating violence over several weeks. It involved kidnapping of Ms A and especially degrading sexual aggression towards two complainants designed to humiliate and control them. It was unusual in the extent of the sexual violence and the serious involvement of more than one victim.

(iv)The appellant submits that the Judge should have imposed  the shortest possible minimum non parole period, in this case consistent with the needs of the appellant and his children. This submission was highlighted, the appellant said, because of Ms A’s encouragement toward the appellant to keep in contact with his children. The appellant submits that a long non parole period would frustrate this endeavour and break the link between the appellant and his children.

[14]   Section 86 gives no direct legislative guidance to the principles to determine an appropriate non parole period. All the circumstances of the offence and offender will be relevant. The appellant’s relationship with his children was one but only one factor to take into account in fixing the period.

[15]   We consider the Judge made no error in assessing the non parole period. As we have identified, this was offending out of the ordinary range. It called for a non parole minimum beyond one-third. The inherent seriousness of the offending, the risk of re-offending as identified by the probation officer and the importance of deterrence especially in cases involving very serious sexual violence arising from relationship split-up illustrate that the non parole period of 7 years was well justified.

[16]   Both grounds of the appeal having been rejected, the appeal will be dismissed.

Solicitors:

PHB Hall, Christchurch for Appellant Crown Law Office, Wellington