The Queen v Ogilvie

[2009] NZCA 132

IN THE COURT OF APPEAL OF NEW ZEALAND

CA310/2008
[2009] NZCA 132

THE QUEEN

v

KENNETH FORBES OGILVIE

Hearing:31 March 2009

Court:Robertson, Gendall and Keane JJ

Counsel:W T Nabney for Appellant

M D Downs for Crown

Judgment:9 April 2009 at 9 am

JUDGMENT OF THE COURT

A        Conviction for 17 April 2007 offence quashed.

BSentence of 140 hours community service quashed and 60 hours substituted for 11 April 2007 offence.

____________________________________________________________________

REASONS OF THE COURT

(Given by Keane J)

[1]       On 6 March 2008 Kenneth Ogilvie was convicted, after trial, of two breaches of a final protection order.  On 11 and 17 April 2007 he failed without reasonable excuse to attend a programme he was obliged to attend.  He was acquitted of an earlier failure on 6 March 2007.  He was sentenced by the trial Judge, Judge Harland, to 140 hours community work.

[2]       Mr Ogilvie accepts he committed the 11 April 2007 offence.  He appeals his conviction for that on 17 April 2007 on the basis that there was insufficient evidence on which the jury could reasonably convict.  There was no evidence, he contends, that he was given notice, or that he was otherwise aware, that he had to attend counselling on that latter date.

[3]       The evidence before the jury, the Crown contends, was sufficient.  The issue for the jury was one of credibility.  The jury accepted the evidence of Warwick Hansen, Mr Ogilvie’s counsellor, that he had advised Mr Ogilvie of the appointment.

[4]       Mr Ogilvie also appeals his sentence of 140 hours community work as manifestly excessive.  Whether that is so as to the two offences of which he was convicted will need only to be considered if his appeal against conviction fails.  If that aspect of his appeal succeeds his sentence must be revisited.

Context

[5]       On 13 December 2006 a temporary protection order was made against Mr Ogilvie in the Family Court, Tauranga.  He was directed to attend ‘Living Without Violence’ counselling.  That direction was suspended almost immediately when he objected.  He was again directed to counselling on 27 September 2006, when, after a three day hearing, the temporary protection order was made final.

[6]       On 8 November 2006 Mr Ogilvie failed to attend his first counselling session without having been excused.  On 15 January 2007 he was directed to undergo counselling with another provider.  He was given a final warning.  On 9 February 2007 he was served with the Judge’s minute and a letter, dated 30 January 2007, setting out the counselling sessions he was to attend.

[7]       That letter had three passages of relevance:

This confirms your counselling appointment on 7.15 pm on 06 March 2007 with Warwick at Tauranga, also we have forward booked the next 11 sessions, every Tuesday night at 7.15 pm ending on 22/5/07 if all attended. It also provides you with some general information about Relationship Services.

…

The counselling process is based on the belief that clients can find their own answers to their issues. The role of the counsellor is to help you identify the goals of counselling and achieve those goals. Each counselling session usually lasts 50 minutes, and the number of sessions required depends on the situation and your own wishes.

…

We require at least 24 hours notice should you need to cancel or postpone an appointment. This enables that appointment to be offered to someone else. Appointments cancelled or postponed with less than 24 hours notice or missed without notice may be charged the full fee …

[8]       Soon after, Mr Ogilvie arranged with Mr Hansen to bring forward the first session to Tuesday, 20 February, according to Mr Hansen’s record of attendance, but Wednesday, 21 February, according to his evidence.

[9]       At this first session Mr Hansen introduced Mr Ogilvie to the programme and asked him to complete a contract of engagement.  Mr Ogilvie refused but Mr Hansen did not regard that as crucial as long as he was willing to participate.  They then reviewed the schedule of sessions set out in the 30 January 2007 letter: 12 Tuesday evening sessions in Tauranga beginning on 6 March 2007.

[10]     Mr Ogilvie explained to Mr Hansen that he found Tuesdays inconvenient.  On Tuesdays he attended lectures at the Tauranga campus of the University of Waikato.  Also, he lived at Mt Maunganui.  They agreed, in principle, that ensuing sessions should occur on Wednesdays, not Tuesdays, and at Mt Maunganui, not Tauranga.

[11]     Mr Hansen did not then rewrite the programme substituting Wednesdays for Tuesdays; and he still expected Mr Ogilvie to attend counselling on the first date originally scheduled, Tuesday 6 March.  When Mr Ogilvie did not attend Mr Hansen reported that to the Court as a failure without excuse. This was the basis for the first count in the indictment.

[12]     Mr Hansen, when cross-examined, could not recall whether he had required Mr Ogilvie to attend on 6 March, or excused him.  He had not noted that he had excused him.  But 6 March was a Tuesday and, he accepted, that was inconsistent with what they had just agreed in principle.  The jury acquitted Mr Ogilvie of that count.

[13]     According to the schedule in the letter Mr Ogilvie was next to attend on 13 and 20 March, both Tuesdays.  He had university examinations on both days and Mr Hansen excused him; a fact that Mr Hansen noted in his record of attendance only as to 20 March.

[14]     Mr Ogilvie attended two catch up sessions on Monday, 26 March and Tuesday, 27 March.  The Tuesday, Mr Hansen said, was agreed on the Monday.  He also attended two further catch up sessions on Tuesday, 3 April, and Wednesday, 4 April, this time by telephone.  Mr Hansen considered that telephone counselling sufficed.

[15]     Mr Hansen expected Mr Ogilvie next to attend on Wednesday 11 April, the subject of the second count in the indictment.  He set that date with Mr Ogilvie on 4 April, he said, and reminded him by telephone on the day two hours before the appointment.  He expected that Mr Ogilvie would attend.  Mr Ogilvie accepted that Mr Hansen had contacted him on the day. He does not question that conviction.

[16]     Finally, Mr Hansen expected Mr Ogilvie to attend on Tuesday 17 April, as originally scheduled, the subject of the third count in the indictment.  He telephoned Mr Ogilvie to remind him.  When Mr Ogilvie did not attend and did not contact him Mr Hansen did not attempt to contact Mr Ogilvie.  On 18 April he sent a notice to the Court stating that counselling had concluded and that Mr Ogilvie had attended five of eleven sessions, and not attended three ‘despite phonecalls to remind (him) of the sessions approaching’.

Sufficiency of 17 April evidence

[17]     To sustain the 17 April conviction the Crown relies on the evidence of Mr Hansen, as it concerns that date; and whether that evidence is sufficient is best assessed against the evidence Mr Ogilvie later gave.

[18]     Mr Ogilvie accepted that, according to the January letter, he did have an appointment on 17 April.  He accepted also that though he had expressed a preference for Wednesdays, not Tuesdays or other week days, he had received counselling on a Tuesday.  But, he said, he and Mr Hansen had agreed that counselling should happen on Wednesdays, and while he had attended on Tuesdays, that had always been agreed beforehand.

[19]     Mr Hansen did not on or after 11 April, Mr Ogilvie said, tell him that their next session was to be on Tuesday 17 April.  Nor did he receive any message to that effect. His cellphone is incapable of receiving voicemail.  He shares his home with flatmates and there was no message on his landline answerphone either.

[20]     Mr Hansen said that he would not have overwritten 17 April into his record of attendance unless it had been agreed.  He was unable to say when that was.  When he and Mr Ogilvie spoke on 11 April he was intent only on reminding Mr Ogilvie of their appointment that day.  He relied rather on the telephone call he recalls making to Mr Ogilvie to remind him of their appointment.

[21]     On his record of attendance Mr Hansen noted against 17 April, ‘rang Monday 1504 for 1130 apment DNA’.  Taken literally, that suggests he rang Mr Ogilvie on Monday, 16 April, at 3.04 pm.  But his evidence was that he rang him 48 hours before the appointment and, when he sent notice to the Court that Mr Ogilvie had failed to attend, he said that he had reminded him on 15 April, the Sunday.

[22]     More basically, Mr Hansen did not claim to have spoken to Mr Ogilvie.  He recalled leaving a message for Mr Ogilvie on his landline.  The question remains whether, if Mr Hansen did do that, and there is no reason to doubt his truthfulness, Mr Ogilvie ever received it.  He says that he did not.

[23]     According to the January letter, of course, Mr Ogilvie did have an appointment on 17 April.  By then, however, Mr Hansen had departed so completely from that schedule that it had ceased to apply.  Nor was there any agreed pattern. Sessions had occurred on a Wednesday, but sometimes on a Tuesday, and even a Monday, and each of those dates was notified or agreed specifically.

[24]     Mr Hansen’s inability to say that he notified Mr Ogilvie of the 17 April session has then to be fatal.  Mr Ogilvie may have been directed to attend counselling weekly, if not on Tuesday then on some other day of the week, but that is not enough.  It does not answer the Crown’s inability to prove that he failed to attend on 17 April without reasonable excuse.  He benefits from that windfall.

Sentence

[25]     The result is that the sentence imposed on Mr Ogilvie for the two offences on 11 and 17 April 2007, 140 hours community work, must be revisited.  It clearly cannot stand for a single offence.

[26]     Mr Ogilvie contends, as he did on sentence, that community service is an excessive penalty for his offending, especially for one offence not two.  He offers, as he did on sentence, to pay a fine. He has savings, as the Judge said, of $2,500. The Judge did not accept that a fine sufficed.  The question is then whether she was right to see community service as the sentence essential to deter him in the future.

[27]     The protection order of which this programme formed part, the Judge said, was made because Mr Ogilvie’s former wife had suffered domestic violence for which he was accountable.  The purpose of the programme was to confront him with his behaviour and to educate him as to its impact.  He not merely breached the programme twice.  He wrote letters to his assessing officer, for the purpose of sentence, suggesting he did not think this unacceptable.  He elected to undertake his own counselling and attempted to nominate his own sentence.

[28]     We agree with the Judge, for the reasons she gave, that a fine was quite insufficient to bring home to Mr Ogilvie how unacceptable his offending was. Community work was the only proper sentence and that remains so even though he is now to be held accountable for one offence not two.  He is fortunate to have escaped the second conviction.  The only issue can be as to the length of service imposed.

[29]     In imposing 140 hours community service for the two offences the Judge is to be assumed to have treated the first offence as a factor aggravating the second and to have imposed more community service for that offence than for the first.  To divide the sentence into two would not suffice.  We take that into account.

Conclusion

[30]     This appeal against conviction and sentence will be allowed. Mr Ogilvie’s conviction for the 17 April 2007 offence will be quashed.  His sentence of 140 hours community service will be quashed.  In its place, for the 11 April 2007 offence, he will be sentenced to 60 hours community service.

Solicitors:
Crown Law Office, Wellington