OTTER v R [2017] NZCA 334

OTTER v R [2017] NZCA 334 [11 August 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA67/2016[2017] NZCA 334BETWEEN DAVID ROSS OTTERAppellantAND THE QUEENRespondentHearing: 24 July 2017Court: Gilbert, Brewer and Peters JJCounsel: C J Tennet for AppellantS K Barr for RespondentJudgment: 11 August 2017 at 2.30 pmJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)Introduction[1] Following a trial by jury in the Napier District Court, David Otter was found guilty of attempting to pervert the course of justice, kidnapping and assault with aweapon (a stun gun). He was sentenced by Judge Rea to four and a half years'imprisonment and directed to serve a minimum period of imprisonment of two years and seven months.11 R v Otter [2016] NZDC 877.[2] Mr Otter appeals against his sentence, contending that it was manifestly excessive. In particular, he argues that:(a) the starting point adopted was too high;(b) there should have been no uplift for his previous convictions; and(c) there is an unjustified disparity between the sentence he received and those imposed on his co-offenders.Facts[3] Mr Otter's offending arose out of assistance he provided to an associate, Depak Hanara, who was in prison on remand facing charges of threatening to cause grievous bodily harm to Caleb Clare, aggravated burglary and possession of anoffensive weapon. Mr Otter's role was to pressure Mr Clare into providing falseevidence to assist Mr Hanara to obtain bail and escape conviction.[4] After initial attempts failed to achieve the desired response, Mr Otter decided to apply more pressure to Mr Clare. Accordingly, he invited Mr Clare to come to his address on the pretext of supplying him with cannabis. When Mr Clare arrived, he found that Mr Otter had arranged for another associate, Teariki Tamoe, to be present with stun guns. Mr Otter intended that Mr Tamoe would use these on Mr Clare. Mr Otter was present while Mr Tamoe attacked Mr Clare with one of these stun guns and administered over 30 electric shocks to his legs, back and neck. Shortly afterthis, Mr Otter went to Mr Clare's address and told him that he could not prevent thisfrom happening again if Mr Clare did not cooperate in helping get Mr Hanara released from prison. Mr Clare subsequently signed the false written statement Mr Hanara had prepared for him. He did this because he feared that he would otherwise be killed.Starting point too high?[5] The Judge adopted a starting point of four years' imprisonment for the totalityof this offending.[6] Mr Tennet submits that the overall starting point should have been no higherthan three years and six months' imprisonment. He argues that a starting point of three years' imprisonment would have been sufficient to recognise Mr Otter's part inthe kidnapping and assault with a weapon. He contends that an uplift of four to sixmonths' imprisonment would have been sufficient to reflect Mr Otter's participationwith Mr Hanara in attempting to pervert the course of justice.[7] Mr Barr submits that the overall starting point was generous and should have been considerably higher.[8] As this Court observed in Miller v R, denunciation and deterrence are prominent sentencing purposes in cases involving attempts to pervert the course of justice.2 Kidnapping and assault with a weapon are also serious offences requiring a commensurate sentencing response.[9] Mr Otter's offending can only be regarded as serious. He was described by the Judge as "the one driving the efforts on the outside" while Mr Hanara directed what he wanted to happen from inside prison.3 Mr Otter's efforts to pressureMr Clare to give false evidence persisted over a period of approximately two months and ultimately involved serious violence. Mr Otter secured Mr Clare's presence athis house on false pretences, having arranged for Mr Tamoe to be present for the purpose of assaulting Mr Clare with the stun guns. Mr Otter orchestrated the entire event and remained present throughout the sustained and brutal attack on Mr Clarethat followed. A short time after this attack occurred, Mr Otter went to Mr Clare'saddress and told him that he would not be able to stop anything like this happening again if he did not cooperate in getting Mr Hanara out of prison. Fearing even more serious repercussions if he did not capitulate, Mr Clare went to the Napier District Court and signed in front of a registrar the completely false statement that Mr Hanara had drafted.[10] Having regard to Mr Otter's central role, the sustained and serious nature of the offending and the level of violence involved, we are satisfied that the starting2 Miller v R [2014] NZCA 382 at [11].3 R v Otter, above n 1, at [5].point of four years' imprisonment was well within range. We agree with Mr Barr that a higher starting point could have been justified but this is offset by the minimum period of imprisonment imposed. This ground of appeal fails.Was the uplift for previous convictions justified?[11] The Judge imposed an uplift of six months' imprisonment to reflectMr Otter's previous convictions. Mr Tennet submits that an uplift of no more thantwo months' imprisonment could be justified.[12] We agree with Mr Barr that the uplift was unremarkable given Mr Otter'sprevious convictions which include assault with a weapon (2015), male assaults female (2010), five for common assault (2015, 2013, 1991 x 2, and 1989), eight for contravening a protection order (2015, and 2011 x 7) and two for unlawful possession of a firearm (2011 and 2002). This ground of appeal also fails.Unjustified disparity?[13] The co-offenders were tried together and Judge Rea sentenced all three.[14] Mr Hanara was sentenced to six years and six months' imprisonment for twocharges of attempting to pervert the course of justice, one of aggravated burglary, one of possession of an offensive weapon and one of threatening to cause grievous bodily harm.4[15] Mr Tamoe was sentenced to three years, six months' imprisonment for hispart in the kidnapping and assault with a weapon. The Judge adopted a starting pointof three years' imprisonment and applied an uplift of six months for Mr Tamoe'sprevious convictions.5[16] Mr Tennet submits that the disparity is unjustified, particularly having regard to the sentence imposed on Mr Tamoe.4 R v Hanara [2016] NZDC 669.5 R v Tamoe [2016] NZDC 650.[17] We do not accept this submission, for the reasons the Judge gave. Mr Otter'sinvolvement was sustained over a much longer period and he orchestrated thekidnapping and the assault with the stun guns. As the Judge put it, Mr Tamoe's rolewas confined to supplying the "muscle". It is particularly significant that, unlikeMr Otter, Mr Tamoe was not convicted of attempting to pervert the course of justice. This alone is sufficient to explain the differential in the starting points adopted for Mr Tamoe and Mr Otter.[18] It is difficult to draw any direct comparison between the respective sentences imposed on Mr Hanara and Mr Otter. Mr Hanara was not charged with kidnapping or assault with a weapon. On the other hand, Mr Hanara was convicted of aggravated burglary and possession of an offensive weapon. He was also convicted of an additional charge of attempting to pervert the course of justice and a charge of threatening to cause grievous bodily harm. Having presided over the trial, the experienced Judge was in the best position to make the assessment of relative culpability. We are not persuaded that he made any error in making this assessment.[19] This ground of appeal also fails.Conclusion[20] The end sentence of four years and six months' imprisonment for Mr Otter'srole in attempting to pervert the course of justice, kidnapping and assault with aweapon was well within the range of the Judge's sentencing discretion. Indeed, ahigher sentence could have been justified. We are not persuaded that the minimum period of imprisonment imposed was unjustified in all of the circumstances. There is no basis on which we could interfere with the sentence.Result[21] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent