R v Ormsby-Turner

• Jurisdiction: New Zealand
• Judge: Katz J
• Judgment Date: 29 November 2023
• Neutral Citation: [2023] NZCA 601
• Court: Court of Appeal
• Docket Number: CA445/2023

[2023] NZCA 601

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Court:

Katz, Mander and Osborne JJ

CA445/2023

BETWEEN

The King

Appellant

and

Tana Ormsby-Turner

Respondent

Counsel:

I A Auld and T C Didsbury for Appellant

K R Pascoe and S Hunt for Respondent

Criminal Sentence — appeal against a sentence of 12 months home detention imposed for wounding with intent to cause grievous bodily harm and being an accessory after the fact to murder on the basis that it was manifestly inadequate and wrong in principle — youth offender — Crimes Act 1961 — Criminal Procedure Act 2011

The appeal was allowed. The sentence of home detention was manifestly inadequate and a sentence of imprisonment should be substituted. The appropriate sentence was three years and four months' imprisonment. A credit of six months was allowed to reflect the time Tana had already spent serving his sentence of home detention. That resulted in an end sentence of two years and 10 months imprisonment being substituted.

• A The application for leave to adduce further evidence on appeal is granted.

• B The appeal is allowed.

• C The sentence of 12 months' home detention is set aside and substituted with a sentence of two years and 10 months' imprisonment.

• D Mr Ormsby-Turner must surrender himself to the Prison Director at Mt Eden Corrections Facility (or such other location as may be directed by Corrections in writing) to commence his sentence of imprisonment by 2.00 pm on Friday 1 December 2023. The current sentence of home detention is to continue in effect until that time.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Katz J)

Table of Contents

	Para No
Introduction	[1]
Application to admit further evidence on appeal	[6]
The offending	[7]
Further background	[18]
[Redacted]	[18]
Events in the lead-up to sentencing for the present offending	[20]
Sentencing decision	[30]
Was the starting point too low?	[36]
Was the discount for time spent on EM bail within the available range?	[43]
Were the discounts for cultural and personal background, remorse, youth, and rehabilitative potential within the available range?	[48]
Personal and cultural background	[50]
Remorse	[62]
Youth	[68]
Rehabilitative prospects	[73]
Conclusion as to the appropriate discount for personal mitigating factors	[83]
Conclusion as to the appropriate sentence	[87]
The appropriate appellate response	[89]
Result	[97]

Introduction

1 Tana Ormsby-Turner (Tana) and his older brother Turanganui John Ormsby-Turner (TJ) attacked a prospect for a rival gang, Rei Marshall. TJ stabbed Mr Marshall once in the torso with a large hunting knife. Tana struck Mr Marshall on the head multiple times with a hammer, fracturing his skull.

2 Tana and TJ were initially both charged with murder. After pathology findings revealed that the knife wound had caused Mr Marshall's death, the murder charge against Tana was withdrawn. Tana then pleaded guilty and was convicted in the High Court of one charge of wounding with intent to cause grievous bodily harm 1 and one charge of being an accessory after the fact to murder. 2 Cooke J sentenced Tana to 12 months' home detention. 3 Tana is now 17 years of age and was 16 at the time of the offending.

3 TJ pleaded guilty to Mr Marshall's murder. He was sentenced to life imprisonment with a minimum period of imprisonment of 10 and a half years. 4

4 With the consent of the Solicitor-General, the Crown appeals Tana's sentence on the basis that it is manifestly inadequate and wrong in principle. 5 The key issues raised by the appeal are:

• (a) whether the starting point of seven and a half years' imprisonment adopted by the Judge adequately reflects the seriousness of the offending and Tana's culpability;

• (b) whether the discounts applied for guilty pleas, time spent on electronically monitored bail (EM bail), youth, prospects of rehabilitation, remorse and cultural factors were excessive or wrong in principle; and

• (c) whether the end sentence adequately reflects the seriousness of the offending.

5 Because this is a Crown appeal, the accepted approach is that the sentence will only be increased if it is manifestly inadequate or based upon a wrong principle. The Court will be reluctant to interfere with the sentence if this would cause injustice to the offender. Further, if the appeal is allowed, the sentence should only be increased

to the level which accords with the lowest range of appropriate sentences for the relevant offending. 6

Application to admit further evidence on appeal

6 The Crown seeks leave to adduce further evidence on appeal in the form of two affidavits by employees of the Department of Corrections. The first affidavit concerns events which occurred after Mr Ormsby-Turner was sentenced. It records that Mr Ormsby-Turner enquired about having items held by police returned to him, including his Mongrel Mob patch. We are satisfied that this affidavit is fresh, credible and cogent and we admit it accordingly. The second affidavit concerns the Department's approach to managing young people who are serving sentences of imprisonment. This affidavit is credible and cogent, but not fresh. The Crown has provided a reasonable explanation, however, as to why that evidence was not provided to the sentencing Court. We therefore admit that affidavit also.

The offending

7 The following summary of the offending is largely based on the police summary of facts (which was agreed for sentencing purposes) and the description of the offending in the sentencing notes.

8 At the time of the offending, TJ was president of the West Coast chapter of the Mongrel Mob and Tana was a prospect for the gang. A third co-offender, Hamiora Laupama (who was convicted of being an accessory after the fact to murder), was also a patched Mongrel Mob member.

9 Mr Marshall, who was aged 23 at the time of his death, was a young father. He was also a prospect of the rival Uru Taha gang. One of Mr Marshall's family members, however, was a member of the Mongrel Mob. On 3 August 2023, Mr Marshall arrived, together with that family member, at the family member's residence. Tana, TJ and Mr Laupama were sitting outside the address in a vehicle, as they had come to pick up Mr Marshall's family member to go and “tax” someone who owed TJ

money. (Gang taxing is a form of extortion and/or retribution, often involving the violent taking of property or money from a victim in lieu of payment of alleged debts.) TJ and Tana became agitated when they saw Mr Marshall arrive at the address due to his affiliation with the Uru Taha gang and the fact there had been issues between the Uru Taha gang and the Mongrel Mob

10 Tana and Mr Laupama went into the house to pick up Mr Marshall's family member. While inside, Tana was handed a bag containing a semi-automatic shotgun and a semi-automatic high-powered rifle. He then left the house via a back door. Mr Laupama left the house through the front door.

11 Meanwhile, Mr Marshall was going in and out of the house putting food into his car which he was going to take to his mother. He crossed paths with Mr Laupama outside and they exchanged words. Mr Marshall and Mr Laupama walked towards one another, and Mr Marshall took a swing at Mr Laupama, but missed.

12 TJ was initially behind Mr Marshall but moved to a position in front of him and stabbed him once in the torso with a large hunting knife. There is no evidence that Mr Marshall tried to fight back. Rather, he screwed up his face in pain, held his side, and moved backwards.

13 Tana, who was armed with a hammer, then attacked Mr Marshall, striking him multiple times on the head. Based on Mr Marshall's injuries (which were to the back of his head) we assume that he was likely attacked from behind. Mr Marshall fell to the ground, but Tana continued to assault him with the hammer.

14 Mr Marshall's family member came out of the house and intervened to stop the attack. He and Mr Marshall's partner then drove Mr Marshall to hospital, but Mr Marshall was pronounced dead not long after arrival.

15 Meanwhile, TJ instructed Mr Laupama and Tana to get rid of their vehicle and several items, including Mr Marshall's hat and TJ's knife. They did so, throwing the items into a stream. TJ, Tana and Mr Laupama subsequently removed the clothing they had been wearing, which Tana then took outside and burned. They also dumped the bag containing the firearms, hid the vehicle they had been in, and took steps to coordinate their stories. TJ was bragging about how he had stabbed Mr Marshall, and Tana was bragging about how he had hammered him.

16 Pathology findings confirmed that Mr Marshall died because of the stab wound inflicted by TJ. In relation to the injuries caused by Tana's assault with a hammer, the findings were that:

The head injuries inflicted by Tana involve multiple lacerations to the back of the head of the deceased and two fractures; one to the inner table, right occipital bone and the other a basal skull fracture. There was also blunt force trauma to the right neck with associated subcutaneous haemorrhage.

The fractures to the base of the skull of the deceased, in themselves can be responsible for death. However, the deceased did not suffer a “severe” basal skull fracture (ie on both sides which would have caused a “hinge” fracture) which are easily identifiable as causing death. The stains that had been taken from the deceased's brain show no positive beta-APP staining, which means it is equivocal as to whether the head injuries would have caused death in isolation from the fatal stab wound.

In the scenario we have in this case, it is likely that the short period of time between the injury and death did not allow the changes to occur in the brain that would have picked...