THE QUEEN v DUANE TRACEY OHLSON [2000] NZCA 353 (28 November 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 382/00

THE QUEEN

V

DUANE TRACEY OHLSON

Hearing:	28 November 2000
Coram:	Thomas J Heron J Anderson J
Appearances:	G D Trainor for Appellant S P France for Crown
Judgment:	28 November 2000

judgment of the court DELIVERED BY THOMAS J

[1] On 6 October 2000, following a guilty plea, Mr Ohlson was sentenced in the High Court on four charges; namely, attempted rape, detaining a girl without her consent with intent to have sexual intercourse with her, aggravated burglary, and indecent assault.He received a term of four years imprisonment for the indecent assault and six years imprisonment for the other three charges.All sentences were to be concurrent, save the six years for the attempted rape, which was to be cumulative upon the rest of his sentence.The total effective term was, therefore, twelve years imprisonment.

[2] The sentencing Judge also made an order pursuant to s 80(4) of the Criminal Justice Act imposing a minimum period of imprisonment of ten years.In the course of his sentencing remarks, the Judge expressed regret that the sentence of preventive detention was not available.He said:"I think preventive detention would have been the appropriate sentence if you were eligible for it."

[3] Mr Ohlson now appeals against the order imposing the minimum period of imprisonment on the grounds that it was manifestly excessive and inappropriate in all the circumstances.In a strange twist, the Crown have filed a memorandum consenting to the appeal being allowed on the basis that the High Court did not have jurisdiction to make an order under s 80(4).

[4] The Solicitor-General has not appealed against the sentence of 12 years imprisonment.

The facts

[5] The facts as recited by the sentencing Judge may be set out in full:

On 21 August last you were living in Christchurch.The complainant girl, a 16 year old school girl, as it happened lived in the same street.You had apparently seen her from time to time in the neighbourhood.At about 3 o'clock in the afternoon you entered her home by force.No-one was at home.You armed yourself with a kitchen knife.At about 3.30 pm the complainant returned home. She went into the lounge and watched television.You made some deliberate noises.As a result she was lured to the front of the house to her bedroom. You then confronted her using the knife, held it to her throat.Her arms were bound behind her back.She was punched when she screamed.Eventually you blindfolded and gagged her.Her lower clothing was removed and her bra was cut off.Despite all of this, this 16 year old girl continued to resist, to struggle and to plead with you.But you carried on.You both touched her and endeavoured to enter her and you then touched her again in equally distressing ways.Only at the point when the extent of her resistance was plain did you desist in the sexual attack.At that point her legs were bound.You stole two items from the house and fled.Fortunately she was able to telephone the police for help.

[6] As indicated above, the High Court Judge regarded Mr Ohlson as a "dangerous offender" and considered preventive detention to be the appropriate sentence. This was especially so in the light of Mr Ohlson's considerable criminal record, including crimes of violence against women, comments made by Mr Ohlson in a pre-sentence interview to the effect he got a "buzz" out of committing the present crime, and his indication in the same interview that, faced with the same circumstances again, he would re-offend.A psychiatrist in a report to the Court expressed the following opinion:

The defendant has a predilection for inflicting pain and suffering on others as a way of achieving sexual gratification.He therefore remains a high risk of further offending.Furthermore, his alleged offending occurred during a period of psychiatric supervision and care from the community alcohol and drug service, and the alleged offending took place despite this care being in place. The defendant was asked during the interview, whether he would reoffend if the same set of circumstances reoccurred in the future, and he answered to the affirmative.

[7] Preventive detention would have been the appropriate sentence.But under the legislation enacted by Parliament, Mr Ohlson is not eligible for such a sentence.Nor, as the Solicitor-General has not appealed against the finite sentence of 12 years, is it open to this Court to consider an increase in the sentence of 12 years imprisonment.

[8] Unable to impose a sentence of preventive detention, the sentencing Judge sought to extend the minimum time Mr Ohlson would spend in prison by resorting to s 80(4).But the Crown is correct.The Court does not have the jurisdiction to make such an order.Parliament has chosen not to include attempted rape in the definition of "serious violent offence" for the purposes of the Criminal Justice Act 1985, and this Court is bound by that decision.

Disposition

[9] We must therefore conclude that, as a matter of law, Mr Ohlson can neither be sentenced to preventive detention pursuant to s 75 of the Criminal Justice Act, nor to a minimum period of imprisonment pursuant to s 80 of that Act.We have no option but to allow the appeal and set aside the order specifying a minimum non-parole period of ten years.

Solicitors

Trainor MacLean, Christchurch for Appellant

Crown Law Office, Wellington for Crown