Ormsby v R [2014] NZCA 73 (18 March 2014)

Last Updated: 27 March 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA504/2013 [2014] NZCA 73
BETWEEN	GEORGE NGATAI ORMSBY Appellant
AND	THE QUEEN Respondent

Hearing:	12 March 2014
Court:	Wild, Goddard and Clifford JJ
Counsel:	G A Walsh for Appellant M H Cooke for Respondent
Judgment:	18 March 2014 at 10 am

JUDGMENT OF THE COURT

1. The appeal against sentence is allowed.

2. The sentence of two years eight months imprisonment imposed by the District Court is quashed.

100. A sentence of two years imprisonment is substituted.

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REASONS OF THE COURT

(Given by Wild J)

Introduction

[1] On the ground that it is manifestly excessive, Mr Ormsby appeals against a sentence of two years and eight months imprisonment.^[1] The sentence was imposed by Judge Tompkins in the Hamilton District Court on 19 July 2013, after Mr Ormsby pleaded guilty to a charge of injuring with intent to disfigure.
[2] The two submissions on appeal are that the Judge’s sentencing starting point of three years imprisonment was too high, and the discount of 10 per cent the Judge allowed for a guilty plea too low.

Facts

[3] Mr Ormsby had for some time been in a domestic relationship with the complainant. The couple had two children. The relationship had not been a smooth one. Mr Walsh described it as of the “on and off type”. When the offence occurred the couple were living apart.
[4] Mr Ormsby went to the complainant’s home. The Crown says he had been invited for dinner. Mr Ormsby says he went there to mind the children while the complainant was out. In any event the couple began drinking and then arguing. This woke the children who were asleep in the lounge.
[5] The complainant pushed Mr Ormsby out the back door. Both she and Mr Ormsby fell to the ground, the complainant ending up underneath. As she tried to get away Mr Ormsby bit off a portion of her left earlobe. He then spat the piece of earlobe onto the ground.
[6] When the children came outside Mr Ormsby initially stopped them and the complainant from going back inside, but eventually the complainant was able to go in and call the police. Mr Ormsby admitted to the police that he had bitten off part of the complainant’s earlobe.
[7] The complainant was in hospital for two days. An attempt to reattach the bitten off piece of the earlobe failed. The complainant is left with a disfigured earlobe.

Starting point too high

[8] The Judge’s sentencing starting point was three years imprisonment. It appears he accepted the Crown’s submission that the offending fell within the upper part of the second band in this Court’s “guideline” judgment in Nuku v R:^[2]

Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.

[9] The three “aggravating factors” identified by the Judge were:

• the level of and seriousness of the actual violence used;
• the breach of trust; and
• the presence of young children.

[10] R v Taueki actually describes the considerations it lists in [31], not as “aggravating factors”, but as matters contributing to the seriousness of the offending.^[3] We consider there were only two such matters here: serious injury and offending in the home.^[4] As Ms Cooke accepted, the presence of children and the breach of trust involved in turning a dinner invitation – or at least a visit to the home – into a violent incident are part and parcel of the second matter. Nuku applies to offending under ss 189(2), 188(2) and 191(2) of the Crimes Act 1961. Offending under s 189(2) carries a maximum sentence of five years imprisonment; ss 188(2) and 191(2) seven years imprisonment. Mr Ormsby was charged under s 188(2). Factoring in the seven year maximum, the three years upper limit of band two, the presence of two of the Taueki matters and, of course, Mr Ormsby’s offending as we have described it, we consider the appropriate sentencing starting point was two and a half years imprisonment. The three years taken by the Judge was excessive.

Discount for guilty plea

[11] The Judge said:^[5]

... Given the lateness of the plea I consider that a reduced discount for the guilty plea of 10 per cent is appropriate noting the Crown submission that an earlier offer of resolution in March of this year was rejected and that the plea was only entered on the morning of what was to be a reserve trial date.

[12] Ms Cooke accepted this was incorrect. The charge originally laid against Mr Ormsby on 20 June 2012 was wounding with intent to cause grievous bodily harm, an offence under s 188(1) of the Crimes Act attracting a maximum sentence of 14 years imprisonment. In January 2013 a trial date starting 13 June 2013 was fixed, with a reserve trial date commencing 15 April 2013.
[13] In February 2013 Mr Walsh inquired of the Crown whether it would accept a guilty plea to a charge under s 189(1) of injuring with intent to cause grievous bodily harm – an offence attracting a maximum sentence of 10 years imprisonment. When he received no response, Mr Walsh followed up with an email on 26 March. The Crown responded advising that a guilty plea to a charge under s 188(2) would be accepted. That guilty plea was entered to the amended indictment at the next call on the reserve trial date 15 April. Ms Cooke accepted there was no suggestion the trial would commence that day.
[14] Mr Walsh submitted the full 25 per cent discount sanctioned by the Supreme Court in Hessell v R should have been allowed.^[6] Ms Cooke responded with two submissions. First, relying on [60] in Hessell, she maintained Mr Ormsby pleaded guilty in the face of a very strong Crown case. To use the Supreme Court’s words, he had “little choice but to plead guilty”. Second, referring to [62] in Hessell, as the Crown had reduced the charge, Ms Cooke argued that giving Mr Ormsby the full 25 per cent discount would amount “to giving a double benefit”.
[15] Those arguments are not without their difficulties. Irrespective of the strength of the Crown case, a defendant always has a choice of plea. Logically, it is difficult to see why a plea of guilty in the face of a strong Crown case should be worth less than a guilty plea to a weak case. That is particularly so if the reasons for allowing the discount include – as we think they do – sparing the victim(s) the trauma of a trial, the State the cost of running it, and acknowledging that a guilty plea is generally an expression of remorse.
[16] Assuming the correct charge here was one under s 188(2) (and one assumes the Crown would not otherwise have substituted that charge), it is difficult to see any “double benefit” from allowing the full 25 per cent discount for the early plea of guilty to that charge.
[17] Factoring in all the matters we have mentioned, we consider the appropriate discount was 20 per cent.
[18] If a 20 per cent discount is applied to the two and a half years starting point, the result is a sentence of two years imprisonment.

Result

[19] The appeal against sentence is allowed.
[20] The sentence of two years eight months imprisonment imposed by the District Court is quashed.
[21] A sentence of two years imprisonment is substituted.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Ormsby DC Hamilton CRI-2012-019-4076, 19 July 2013.

^[2] Nuku v R [2012] NZCA 584 at [38]. In [37] this Court observed “We see this judgment as providing guidance on how Taueki can be adapted to apply to the lesser charges, rather than being a guideline judgment in its own right”.

^[3] R v Taueki [2005] 3 NZLR 372 (CA).

^[4] Offending in the home is not expressly listed in Taueki, but “vulnerability of victim” is. And, as the Court made clear at [28], citing R v Mako [2000] 2 NZLR 170 (CA) at [35], the list is not exhaustive.

^[5] At [10].

^[6] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].