Naomi Kaye Williams v New Zealand Police
[2024] NZHC 2617
•11 September 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2024-419-000071
[2024] NZHC 2617
NAOMI KAYE WILLIAMS v
NEW ZEALAND POLICE
Hearing: 3 September 2024 Appearances:
S Hartstone and Ms Scott for the Appellant L Glaser for the Respondent
Judgment:
11 September 2024
JUDGMENT OF WALKER J
This judgment was delivered by me on 11 September 2024 at 12 pm Registrar/Deputy Registrar
Counsel/Solicitors:
S Hartstone, Public Defence Service, Hamilton
L Glaser, Hamilton Legal, Crown Solicitor Hamilton
WILLIAMS v POLICE [2024] NZHC 2617 [11 September 2024]
[1] Judge RLB Spear sentenced Ms Williams to 12 months’ imprisonment on a raft of dishonesty charges, one charge of breach of intensive supervision, and one charge of failure to answer District Court bail.1
[2]A schedule of the charges Ms Williams faced is annexed to this judgment.
[3] Ms Williams appeals her sentence. The sole issue on appeal is whether the sentencing Judge should have commuted the prison sentence to home detention. The primary ground advanced is that, through no fault of the sentencing Judge, he was unaware that Ms Williams had very recently taken on care responsibility for her 13‑year-old daughter, previously cared for by her grandparents. This information is now before the Court on appeal, along with an affidavit from a family member who has taken over temporary care of the child because of Ms Williams’s imprisonment.
[4] The respondent opposes the appeal. It submits the sentencing Judge gave weight to the primary purposes and principles in sentencing Ms Williams and that no error is identified. It also opposes introduction of the new information. In the interests of overall justice, I allow the further material.
Background
[5] The shoplifting offending occurred between November 2022 and June 2023. It took place at various stores including Briscoes, Countdown and Rebel Sport. The value of goods stolen was approximately $16,000. Ms Williams was on bail for other offending at the time of some of the shoplifting offences.
[6] The charge of breaching a sentence of intensive supervision relates to failure to report on multiple occasions. The underlying offending in respect of this sentence occurred in May 2023 following a conviction on a charge of assaulting a person in a family relationship.
1 New Zealand Police v Williams [2024] NZDC 13301.
Decision under appeal
[7] The sentencing Judge referred to the offending as “quite substantial”. He noted the pre-sentence report which had been prepared without any input from Ms Williams because she did not take part in the pre-sentence interview process. He referred to a “On Strength” report from Probation citing eight family harm incidents involving Ms Williams from March 2023 to February 2024.
[8] He also noted that Ms Williams had not completed any programmes required by the special conditions of intensive supervision and the report of further offending whilst on sentence coupled with continued non-compliance. The sentencing Judge reasoned:
[11] I adopt a starting point of 29 months’ imprisonment to cover all the offending. That would [be] 26 months for the offending, an uplift of two months for the fact that you were on bail, another month because of the breach of your intensive supervision charge, which brings me to 29 months. For totality, I reduce that to 20 months.
[12] I allow 15 per cent for your guilty pleas which brings me to a sentence of 17 months.
[13] I am not prepared to impose home detention. Additionally, notwithstanding the calculation, I consider that a relatively short sentence of 12 months’ imprisonment would be appropriate bearing in mind that you have managed to stay out of trouble it would appear since August of last year.
[14] The sentence imposed will be in this way and it recognises exactly how much you stole over those periods and how blatant the offending was – stealing goods to the value of over $3,000 on occasions or up to $2,000 on other occasions is just extraordinary.
[15] So, on the sentences involving the charges that carry a seven month maximum you are sentenced to 12 months’ imprisonment. That is subject to the special conditions sought by Probation. You will undertake and complete the Kowhiritanga programme, you will reside where you are required to do so by your probation officer and you are not to enter either Briscoes, Rebel Sports or Countdown stores anywhere in the country. There is no prospect of reparation to be paid.
[16] On the other charges it is two months’ imprisonment and your existing sentence of intensive supervision is varied to end today.
Approach on appeal
[9] Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. A first appeal court must allow the appeal if satisfied that, for any reason, there is an
error in the sentence imposed, and a different sentence should be imposed.2 The Court will not ordinarily intervene when the sentence is within the range that can be properly justified by accepted sentencing principles.3
[10] The choice between home detention and a short sentence of imprisonment is an exercise of a fettered discretion. It is governed by the purposes and principles of sentencing contained in the Sentencing Act 2002. The appellant must identify error in the sentence imposed by the lower court.
Provision of Advice to Court report
[11] As noted, the Provision of Advice to Court report was prepared without input from Ms Williams. She did not take part in the pre-sentence interview process. Neither did she report to her probation officer every fortnight as required. The report writer notes that the pre-sentence interview could have been completed at one of those sessions had Ms Williams attended.
[12] On 21 May 2024, the report writer visited Ms Williams at her home. Ms Williams apparently confirmed that she still lived there “with no other occupants”. Cross-referencing the dates with the family member’s affidavit, and allowing for some uncertainty in the dates, it appears, at least on the face of it, that the visit to Ms Williams was after her daughter had ceased living with her grandparents and had returned to Ms Williams’s care.
[13] The report writer noted Ms Williams’s conviction history, including offending between 2020 and 2023 when it increased to assault of a child (manually) and assault on a person in a family relationship. The writer notes that Ms Williams was referred to a departmental rehabilitation programme on 5 April 2024, but failed to attend the assessments and so the referral was cancelled. This was said to illustrate Ms Williams’s failure to help herself change behaviours which led to her offending. The report writer recommended a sentence of community work and community detention, to run alongside the current sentence of intensive supervision.
2 Criminal Procedure Act 2011, s 250(2).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[37].
Grounds of appeal
[14] Ms Hartstone, for Ms Williams, submits that the error was a failure to consider the factor of care for Ms Williams’s 13-year-old child at the time of sentencing. She says that, had that information been available at the time of sentencing, it would have supported an end sentence of home detention as the appropriate outcome. However, I do not apprehend that this appeal hinges on that new information because Ms Hartstone also submits that the sentencing Judge erred in his assessment of the least restrictive sentence available.
[15] In relation to the offending itself, Ms Hartstone acknowledges that Ms Williams had been accompanied by an associate, but the offending did not involve violence or intimidation. She notes that Ms Williams did report to Hamilton Community Corrections when first sentenced to one year and six months’ intensive supervision and that the summary of facts records a failure to report on eight occasions. In relation to the charge of failure to answer District Court bail, Ms Hartstone points out that Ms Williams failed to appear when bailed but made a voluntary appearance shortly thereafter.
[16] Ms Hartstone refers to authorities supporting the view that, in some cases, society’s interests are better served by restricting liberty through home detention rather than through imprisonment and that a sentence of home detention is a real alternative to a sentence of imprisonment.4 I accept that is so in the appropriate case, but the submission begs the question whether this is such a case.
[17] By way of mitigating features, Ms Williams’s offending occurred during a period when she was living in emergency housing which she initially left with the support of Women’s Refuge. Once she was provided housing by Kāinga Ora, her offending ceased. Implicitly, Ms Williams’s offending was driven by her circumstances, which once resolved, saw a reasonably lengthy period without offending and indicates a more positive trajectory.
4 R v D (CA253/2008) [2008] NZCA 254; and R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at
[33].
[18] Ms Hartstone also explained that Ms Williams’s 13-year-old daughter previously lived with her paternal grandmother in Christchurch from the age of about nine or 10 years old but returned to her mother’s care unexpectedly a month before sentencing. She described the unsettling experience of the child attending court with her mother and being left unaccompanied once her mother was sent to prison.
[19]None of this was made known to the sentencing Judge.
[20] An affidavit of a family member has been provided. That family member has taken the child in and is currently caring for her. He has confirmed a willingness to look after the child until her mother is out of prison and appears to be in a good place to care for the child. Those family members are to be commended for their supportive and caring approach. There are also positive statements about the child having settled in well in that family environment and regularly attending school.
[21] Finally, Ms Hartstone submits that there is a high likelihood that Ms Williams will lose her Kāinga Ora property if she is not released on home detention as she will be unable to ensure that the rent payments are made for the remaining short period of her incarceration. Current information from Corrections is that Ms Williams will have her social housing held for a short period “if granted home detention”. If she is declined home detention, then Corrections is “not sure” whether her house could be held until her sentence release date on 9 December 2024.
[22] I understand the overall submission therefore to be that only a sentence of home detention will effectively guarantee social housing for Ms Williams and therefore a potentially stable environment for her 13-year-old child. I acknowledge that those are relevant factors in the context of the overall principles of sentencing.
[23] Ms Glaser, counsel for the respondent, recognises that the impact on a person’s child or children is a factor in the sentencing exercise and emphasises that the sentencing Judge was completely unaware of those circumstances. She points out that had Ms Williams engaged in the pre-sentence report interview, those matters could have been before the sentencing Judge. She submits that the reduction in the sentence from 17 months’ imprisonment to 12 months’ imprisonment, equates to a 15 per cent
reduction which is far greater than deductions normally given in respect of childcare factors.
[24] She submits that the reality of the impact on the child witnessing her mother being sentenced that day was a result of Ms Williams’s own decision-making.5
Discussion
[25] Section 16(2) of the Sentencing Act provides that a court must not impose a prison sentence unless satisfied that the sentence is being imposed for the particular listed purposes in s 7 and those purposes cannot be achieved by a sentence other than imprisonment. If the purposes of deterrence have been given complete priority without regard to any of the countervailing purposes of the sentence, then the appeal court will quash a sentence of imprisonment and substitute one of home detention. It is a question of making a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose.
[26] The sentencing Judge here was faced with a difficult exercise given the number of charges, the substantial value of goods taken, and Ms Williams’s historical lack of compliance with Court orders. Even considering what I perceive to be very difficult life circumstances for Ms Williams, which go some way to explaining her offending and failure to take up opportunities to address that behaviour, the sentencing Judge’s reasoning is unimpeachable.
[27] In terms of the additional factor of care for the 13-year-old, I am not persuaded that the sentencing Judge would have commuted the sentence faced with that information. My reasons are these:
(a)the care of the child had been a very recent change in circumstance;
5 I record that Ms Glaser’s submission was advanced far more sensitively than I have recorded in this judgment.
(b)the sentencing Judge would have had regard to the family violence incidents and the underlying offending which led to a sentence of intensive supervision;
(c)the information from the family member now caring for the 13-year-old suggests she is settled in her new environment; and
(d)the impact of a child living with a mother subject to home detention conditions is a complex assessment.
[28] In the end, I find no error in the imposition of the sentence by the sentencing Judge and no basis to allow the appeal. I would, however, sincerely hope that a way can be found for Ms Williams to return to social housing rather than emergency housing when she is released in approximately three months.
Result
[29]Accordingly, the appeal against sentence is dismissed.
............................................................
Walker J
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