THE QUEEN v JASON DARIN ORAN [2003] NZCA 1 (13 February 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA184/02

THE QUEEN

V

JASON DARIN ORAN

Hearing:

3 February 2003

Coram:

Gault P

Blanchard J

McGrath J

Appearances:

D R La Hood for Appellant

S P France and G de Graaff for Crown

Judgment:

13 February 2003

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1]

Jason Oran appeals against a sentence of seven years imprisonment imposed on him in the District Court at Wellington following his conviction at trial on a charge of kidnapping contrary to s209(1)(a) of the Crimes Act 1961, which provides for a maximum penalty of 14 years imprisonment.An element in the offending was, however, the invasion of the victim’s home by the appellant and the crime was committed at a time when provisions introduced into the Crimes Act by the Crimes (Home Invasion) Amendment Act 1999 were in force.By virtue of s17C of the Crimes Act the maximum sentence for an offence of kidnapping involving home invasion was increased to 19 years imprisonment.That section remained in force when Mr Oran was sentenced on 6 June 2002.The Sentencing Act 2002 repealed the home invasion provisions when it came into force on 1 July 2002 and for offending of the character committed by the appellant the maximum sentence then reverted to 14 years.(Section 9(1)(b) of the Sentencing Act lists amongst aggravating factors which must be taken into account “that the offence involved unlawful entry into, or unlawful presence in, a dwelling place” but does not say that it is to be given special weight.)

[2]

At issue on the appeal in the first place is whether the appellant should have the benefit of the lowering of the maximum penalty prior to the determination of his appeal.The argument is made on his behalf that this is required by s6 of the Sentencing Act, read consistently with s25(g) of the New Zealand Bill of Rights Act 1990, the language of which s6 obviously adopts:

6 Penal enactments not to have retrospective effect to disadvantage of offender

(1) An offender has the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty.

(2)	Subsection (1) applies despite any other enactment or rule of law.

25 Minimum standards of criminal procedure

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

...

(g)The right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty:

[3]	But also relevant is para (h) of s25 which confers on a person charged with an offence the minimum right, if convicted of the offence, “to appeal according to law to a higher court against the conviction or against the sentence or against both”.
[4]	Relevant too is s19 of the Interpretation Act 1999:

19 Effect of repeal on prior offences and breaches of enactments

(1) The repeal of an enactment does not affect a liability to a penalty for an offence or for a breach of an enactment committed before the repeal.

(2) A repealed enactment continues to have effect as if it had not been repealed for the purpose of—

(a) Investigating the offence or breach:

(b) Commencing or completing proceedings for the offence or breach:

(c)	Imposing a penalty for the offence or breach.
[5]	The appeal is also brought on the basis that, even if the 19 year maximum applies, the sentence was still manifestly excessive.

Facts

[6]	Mr Oran, a 32 year old man, had been intermittently in a relationship with the victim, a 32 year old mother of four children, for approximately eight months.There had been difficulties between them and trespass notices had been served on Mr Oran requiring him to desist from entering her home.A few weeks before the date of the offending he had been convicted of wilful trespass at the home and ordered to come up for sentence if called on within six months.Notwithstanding, as the sentencing Judge recorded, she had invited him to her home on a number of occasions after the service of trespass notices although the police had needed to be called to remove him when he then refused to leave.Clearly he was infatuated with her and, when told the night before the incident that the relationship was finally at an end, had difficulty in accepting that fact.
[7]	Aside from the trespass conviction Mr Oran had not been convicted of any other offending for almost 12 years.His offending in the 1980s during his youth had not been sufficiently serious to be found meriting more than fines and a sentence of community service.
[8]	On the occasion of the kidnapping Mr Oran drove to a park in the vicinity of the victim’s home at Avalon at about 3.30am.He left his car in the park and walked to her home carrying a rucksack. He hid in a shed on the property where he smoked cannabis and drank alcohol.
[9]	In the morning the victim was absent taking her children to school and visiting a friend and a neighbour.The appellant broke into the house in her absence through the front door which had been damaged in an earlier incident between the two of them.He hid in a wardrobe.When the victim came home she was confronted by the appellant with a knife in the hall.The sentencing notes record:

You held her tightly about the neck, pointed the knife to her throat and backed her into her bedroom where she ended up lying on the bed with you above her.You kept her there some 20 to 30 minutes with the knife at her throat; you abused her throughout that time.She was petrified and feared that she would be raped or killed.She tried not to do anything to antagonise you because you were so angry and she did not know how you would react.

Eventually, you became calmer and asked her to cuddle you.She could not do that while you were holding a knife to her and she asked you to get rid of it.First you put it in your back pocket where you could easily reach it if you wanted.The complainant agreed to cuddle you if you would put the knife elsewhere and you then put it in the rubbish bin in the kitchen where it was clearly visible from the kitchen and the hallway.The complainant noticed that you also had a length of telephone cord or wire in your pocket and she feared that you would use that to tie her up.You warned her not to try and escape.When you let her go to make a cup of tea, or fetch her puppy off the front porch, or go to the toilet, you would follow and watch her.At one stage, you went and put the security chain across the front door.Although she wanted to escape, she did not know how to and she was frightened how you would react if she tried to run.

During the three hours that you kept her confined in your [sic] house, you spent some time talking with her.You apologised to her for what you had done.The ordeal however only ended when a friend of the complainant’s arrived and was able to persuade you to let the two women go to collect the children from school.You extracted a promise from them that they would return immediately.The two women left and went straight to the police station.

[10]	Mr Oran was still in the house when the police arrived.The knife was found hidden in the toilet cistern.There was a hammer in the appellant’s rucksack but it appears to have been picked up by the appellant at the house rather than being taken there by him, and does not appear to have been used.The knife sheath was found in the playroom of the victim’s children.The telephone cord and a roll of plaster (both of which seemed to have been intended to be used to subdue the victim) were also found in the house.
[11]	At trial the jury obviously rejected the appellant’s evidence which was to the effect that he had been invited into the house and that it had been the complainant who produced the knife and confronted him with it.
[12]	The complainant suffered no physical injury but has had significant psychological problems and weight loss and has felt obliged to move away from Wellington and from the house which had been the home of herself and her children for some nine years.
[13]	The Judge referred to the appellant’s excellent employment record and references.She noted that the Probation Officer was of the view that Mr Oran showed insight into the factors leading to his offending which he said he was willing to address.Nonetheless, the Judge said, he had been assessed as being at high risk of reoffending “because of the seriousness of this particular charge”.The Judge noted that alcohol and drugs were a factor in the offending, without providing an excuse.She referred to what she described as some very serious offences committed by the appellant in the 1980s, including aggravated robbery and assault with intent to injure.The Judge did, however, observe that the appellant seemed to have turned his life around since that time and his only conviction entered in the last 12 years had been for trespass relating to the home of the victim.The Judge rejected the suggestion in the pre-sentence report that the matter could be adequately dealt with by way of a term of imprisonment of two years or less, drawing attention to the maximum penalty of 19 years.She said that the offending was premeditated to some extent (incorrectly referring to the hammer, as well as the knife, having been taken to the house).The victim had been “terrorised for at least a three hour period”.The knife had been used to confront and intimidate her.The effect on the victim had been profound.Although there had been an apology to her during the ordeal, the Judge said that the appellant had not shown “any empathy for her since”.He had not spared her the ordeal of giving evidence at trial.On the other hand, the Judge took into account that the victim had suffered no physical injury, that the incident arose “in a domestic context after the break-up of a relationship and it certainly was not done for any ulterior motive like financial gain”.She said that she took into account the appellant’s personal circumstances and the fact that he had stayed out of trouble for the last 12 years and had the support of family, friends and employer.
[14]	The Judge said, correctly, that there was no set tariff because circumstances of cases of this kind varied so widely.She reminded herself that there should not be double counting when there was a home invasion element in an offence.In her view the circumstances of the detention itself warranted a sentence of five years imprisonment, to which she added an extra two years to reflect the fact that there was a home invasion.

Benefit of reduced maximum?

[15]	It was submitted by Mr La Hood for the appellant that he is now entitled to the benefit of the lesser penalty for the offending consequent on the repeal of s17C of the Crimes Act since the passing of sentence.Facing the argument that s6(1) of the Sentencing Act, like s25(g) of the Bill of Rights, confers on an offender the right to that benefit where the penalty has been varied only “between the commission of the offence and sentencing”, whereas the higher penalties for home invasion ceased to apply only after the imposition of the sentence in the trial court, Mr La Hood said that the process of sentencing has not been completed until the right of appeal given by the Crimes Act and affirmed by s25(h) of the Bill of Rights has been exercised and the sentence has been reviewed by the appropriate appellate court.Thus, counsel said, we are still engaged in the sentencing process.
[16]	Recognising, however, the practical result of that argument in its unvarnished form – namely that it would apply where a maximum penalty was reduced long after a sentence was imposed, possibly even after it had been served – counsel suggested that retrospective benefit should apply only if the appeal had been lodged and was still “in the system” before the penalty change took effect or if time to appeal was then still running (with the possibility as well of leave to appeal out of time being permitted by the Court to enable a particular offender who could also demonstrate some further ground of appeal also to enjoy the lesser penalty).
[17]	The potential complexities for the administration of justice if this argument, even in its more limited form, were to be upheld, will be already obvious.But that would of course be no reason for rejecting it if the Bill of Rights required a construction to that effect.We are satisfied, however, both from the history of the legislation and from the actual language of s6 and s25(g) that “sentencing” was never intended to include the process of appealing against a sentence.
[18]	We begin with some statutory history which was helpfully supplied in Mr France’s submissions.The very point with which we are concerned was directly addressed in the predecessor of s6, namely s4(1)(b) of the Criminal Justice Act 1985, which remained in force at the time of all proceedings in the lower court.Section 4(1)(b) provided that where a maximum penalty was altered between the time when the offender committed the offence and the time "when sentence is to be passed”, the maximum penalty should be, in the case of a reduction, the maximum penalty “that can be imposed on the day on which sentence is to be passed”.It could hardly be clearer that there was to be only one day at which the maximum penalty was to be taken and that it was to be when the sentence was passed in the trial court.It is clear also from Parliamentary materials that it was considered when the provision was first introduced, as s43B(2) of the Criminal Justice Act 1954 (by the Criminal Justice Amendment Bill (No. 2) 1979, which became the Criminal Justice Amendment Act 1980), that a change was being made in New Zealand’s existing practice concerning the effect of changes in maximum penalties between offending and sentencing: [1979] 427 NZPD 4152, the speech of the Hon J K McLay, Minister of Justice, introducing the Bill.It is also clear from the Explanatory Note to the Bill and the Minister’s speech that this was regarded as bringing New Zealand into compliance with its obligations under Article 15(1) of the International Covenant on Civil and Political Rights, which in relevant part reads:

If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.

It does not appear that in adopting in s6 of the Sentencing Act the language of s25(g) of the Bill of Rights, Parliament intended any change to a settled understanding that s4(1)(b) fully met this obligation.In fact, the White Paper which preceded the Bill of Rights, in the commentary on what was to become s25(g), noted:

10.122.It may sometimes happen that the penalty for an offence is changed between the time when a person commits an offence and the time they are sentenced for it.Article 17(1)(c) will apply to the benefit of the accused either where the penalty is increased (in which case the old penalty will apply), and where the penalty is reduced (in which case the new penalty will be applied).There is already a provision to this effect in the Criminal Justice Act 1954.s.43B(2). (Emphasis added)

[19]	Furthermore, an argument that, against this background, “sentencing” in s25(g) ought to be given a meaning extending it to an appeal against sentence also encounters the difficulty that the immediately following para (h) of s25 uses the word “sentence” in a way which could not possibly apply to an appeal hearing since it is talking about an appeal against sentence.It is to be expected that if “sentencing” in s25(g), and subsequently in s6 of the Sentencing Act, was intended, respectively contrary to the White Paper and departing from the scheme of s4(1)(b), to extend to appeals, that would have been carefully stated and the differing use of versions of the same word in paras (g) and (h) would have been made explicit.
[20]	Mr La Hood was not able to refer us to any other provision in the Sentencing Act in which reference was made to “sentencing” in the more extended sense for which he contended.By virtue of s385(3) of the Crimes Act, this Court is given a power to quash a sentence and pass such other sentence “warranted in law” in substitution for the quashed sentence “as the Court thinks ought to have been passed”, or to vary a sentence within the limits warranted in law.It is settled practice that the Court will take account, in appropriate cases, of developments after the original sentencing, such as a change in the personal circumstances of the appellant, but any substituted sentence must be one that the Court considers “ought to have been passed”.That is very plainly a reference to the situation as it existed at the time of sentencing in the trial court.The subsequent developments which are able to be taken into account are those which, if known to the trial judge at the time, could have been taken into account.But, as the sentence had to be “warranted in law”, the trial judge would, even if foreseeing later developments, have had to have sentenced in accordance with the then maximum penalty.Although there is a degree of ambiguity in s385(3) concerning the powers of this Court, the subsection must be read in conjunction with s6 of the Sentencing Act and, when so read, we do not consider that it empowers this Court to disregard the maximum penalty which applied at the time of the sentencing.
[21]	Counsel took us to various overseas authorities and commentaries on the provision in the International Covenant, but, as Mr France submitted, they were far from demonstrating that a State’s obligations required that an offender must be given the benefit of a reduction in penalty occurring after sentence is passed in the trial court.Mr La Hood relied upon the decision of the Supreme Court of Canada in R v Dunn [1995] 1 SCR 226 but the offender in that case only succeeded in obtaining the advantage of a penalty reduction or mitigation which had come into force after sentencing because s44(e) of the Canadian Interpretation Act 1985 referred to a punishment, penalty or forfeiture “imposed or adjudged” after the reduction or mitigation and gave the benefit of it to the offender.A majority of the Supreme Court considered that “imposed” referred to the sentencing and that “adjudged” was a wide enough expression to cover appellate review.It included “a judicial determination of the fitness of the sentence”.
[22]	There is nothing similar in our Interpretation Act.Indeed s19 states a basic general proposition that the repeal of an enactment does not affect a liability to a penalty for an offence committed before the repeal and that the repealed enactment continues to have effect as if it had not been repealed for the purpose of imposing a penalty for the offence.As we have seen, neither the relevant statutory provisions nor the context in which they stand requires or authoritises a different approach.The same conclusion was reached by a Division of this Court in R v Greaves CA 139/02, 23 October 2002 but without the benefit of the full argument we have heard.
[23]	Accordingly, we conclude that Mr Oran is not entitled on this appeal to any benefit arising from the repeal of s17C of the Crimes Act and the consequent reduction of the maximum penalty for a kidnapping involving home invasion.

Length of Sentence

[24]	We are, however, of the view that in the circumstances of this offending and of the offender the seven year sentence was manifestly excessive.It is unfortunate that the sentencing Judge was apparently not referred either by prosecuting or defence counsel (neither of whom appeared in this Court) to any case other than one which suggested an appropriate method of sentencing under the somewhat difficult home invasion legislation (R v La’ulu CA560/99, 20 March 2000).The Judge faithfully applied that case but it would have been of no help to her in determining the length of sentence in the individual circumstances.Counsel, especially counsel appearing for the Crown, have a duty to assist a sentencing Judge by referring to any cases which will provide real guidance, either by reason of circumstantial similarity or by contrasting offending of greater or lesser seriousness, and thereby indicate the available range for the particular offending.We are not, however, to be taken to be encouraging a practice of burdening a sentencing Judge with numerous authorities of limited possible relevance.Counsel must only put before the Judge authorities which will be truly helpful.
[25]	No entirely comparable case has come to our attention, as is often the position.It is a difficult area of sentencing because there is no general tariff or indicated ranges for the offence of kidnapping which can take widely differing forms.The Judge could, however, have been referred, as we were by Mr La Hood and Ms de Graaff, to two cases in which, like the present, a kidnapping arose out of the offender’s inability to accept the breakdown of an intimate relationship.In R v Wilson CA15/01, 29 May 2001 a former partner was detained for about three days after an incident in which the appellant had punched her several times so that she was bleeding and in a good deal of pain with a broken jaw, later requiring surgery, and extensive bruising to many parts of her body.At one stage the victim had tried to take refuge in the house of her brother but the appellant had broken in and dragged her outside.So there was an element of home invasion.As in the present case, there was no guilty plea.The sentence, upheld in this Court, was six and a half years.But that was obviously a more serious case than the present because of the injury, which resulted in a separate conviction for causing grievous bodily harm, and because of the length of the detention.And no weapon was involved.
[26]	In R v Green CA179/99, 29 July 1999 there was a kidnapping without use of any weapon, the female victim being taken away from a tavern with some relatively minor violence being done to her.She was detained for about two and a half hours – roughly the same time as in the present case.There was no home invasion but the appellant, who pleaded guilty, had also been charged with threatening to kill, threatening grievous bodily harm, four charges of assault on a female and six breaches of a protection order, most of which additional charges arose out of earlier incidents between the appellant and the victim.On a successful Solicitor-General’s appeal, a head sentence of three years was imposed for the kidnapping and an indication given that four years would not have been reduced on appeal by the offender.
[27]	In the present case, there was a premeditated invasion of the victim’s home with a knife and with materials obviously intended to be used to restrain her.There was a detention for about three hours.For up to 30 minutes of that time the victim was held with the knife against her throat and was in great fear that she would be killed or violated.For the remaining time the knife, though discarded, had been left in a position indicating its availability.The victim has suffered considerably from the mental affects upon her of the appellant’s conduct, so much so that she has had to move her home.There was no guilty plea and in fact the appellant attempted at trial to cast the victim herself in the role of offender.
[28]	On the other hand, Mr Oran caused no physical injury to his victim and, as already mentioned, has had a clean record since the 1980s, apart from a recent incident also involving the victim and arising out of the breakdown of their relationship.Although, as the Judge noted, his youthful convictions included an aggravated robbery and an assault with intent to injure, they arose, it would seem, from the one incident, no weapon was used and their relatively minor nature is demonstrated by the fact that no more than a sentence of community service was imposed.That the present offending, though very serious, appears to be out of character for the appellant as an adult is shown by the references tendered on his behalf and by the support of his family.We think that not enough emphasis was placed by the Judge on these favourable personal circumstances.Whilst it is true that the Probation Officer ventured the opinion, to which the Judge made reference, that the risk of re-offending was high, it would seem that the basis for this remark was simply that the appellant had faced a serious charge, namely kidnapping, which we cannot regard as providing, in itself, any real support for that view.It also seems quite inconsistent with the Probation Officer’s sentencing recommendation.
[29]	Considering and balancing these aggravating and mitigating factors and sentencing in accordance with the approach suggested for the home invasion legislation in R v La’ulu, we have concluded that a sentence giving no particular weighting to home invasion would have been in the range of three and a half to four years and that, if the home invasion is then taken into account as required by s17C, the proper sentence for this appellant is one of four and a half years imprisonment.

Result

[30]	The appeal is allowed.The sentence of seven years imprisonment is quashed and will be replaced by a sentence of four and a half years imprisonment.

Solicitors:

Sladden Cochrane & Co, Wellington for Appellant

Crown Law Office