R v Williams

[2022] NZHC 3298

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-092-11754

[2022] NZHC 3298

THE KING

v

JAMES WILLIAMS

Date of hearing:

8 December 2022

Appearances:

C P Howard for the Crown

I Jayanandan for Mr Williams

Date of sentence:

8 December 2022

SENTENCING NOTES OF JAGOSE J

Counsel/Solicitors:

I Jayanandan, Barrister, Auckland Kayes Fletcher Walker, Manukau

R v WILLIAMS [2022] NZHC 3298 [8 December 2022]

[1]    Mr Williams, as you know, I am today to sentence you on your convictions for intentional damage (x 3),1 participation in an organised criminal group2 and aggravated burglary.3

[2]    You pleaded guilty to those charges after I indicated to others charged with the same offending they were likely to be sentenced to imprisonment for periods of five to eight years, subject to personal mitigating factors.4 Two of those others have also since pleaded guilty, and I have sentenced them in accordance with my indications.5 Parity means my indications will apply also to you.6

Your offending

[3]    I need first to cover off the background to your offending, to let people know the conduct for which I am sentencing you.

[4]    During daylight hours on 20 November 2020, there were a series of linked firearms incidents in Auckland’s Ōtara. These were in apparent inter-gang retaliation for actions carried out against another member of your gang, Michael Crawford, who led the offending. The incidents included drive-by shootings at three Ōtara addresses, leading to the intentional damage charges against you, and an armed home invasion at a fourth address, leading to the aggravated burglary charge against you. All were of properties associated with the other gang.

[5]    Your personal involvement was limited. You were a member of your gang’s Facebook Messenger group chat, on which the incidents were co-ordinated. You conducted surveillance of some of the targeted locations and messaged Mr Crawford with relevant information. You were arrested some days later, in one of the cars involved in the incident and in which then were found shotgun shells. And, obviously, you have pleaded guilty.

1      Crimes Act 1961, s 269(1): maximum penalty, 10 years’ imprisonment.

2      Section 98A: maximum penalty, 10 years’ imprisonment.

3      Section 232: maximum penalty, 14 years’ imprisonment.

4      R v Cassidy [2022] NZHC 1951 at [14]. After Mr Williams’ sentencing, the prosecution was given leave to withdraw charges 5 and 8 against him as set out in the Crown’s Charge List of 15 June 2021.

5      Criminal Procedure Act 2011, s 116(2). R v Cassidy [2022] NZHC 2918 at [28]; and R v Nelson- Bell [2022] NZHC 2796 at [30].

6      Sentencing Act 2002, s 8(e).

[6]    People living at two of the targeted addresses have filed statements explaining the extreme terror they felt for themselves and for their children and grandchildren at risk of being shot in the vicinity of their homes, including bullet damage to their houses. Your offending had continuing impact on their feelings of safety and confidence in their neighbourhood for quite some time afterwards, pushing some to relocate. They say they should not have been put under those pressures. I understand their views of your offending, and encourage you also to reflect on the impact of your offending from their perspective. I did not have those statements at the time I gave my sentencing indication, but there is nothing in them materially affecting it.

Personal circumstances

[7]    You were 21 years old at the time of the offending. You had been associating with your gang since about the age of 14, when your dysfunctional family background led you to live “on the street”.

—criminal history

[8]    In September 2016, you were sentenced to three years and nine months’ imprisonment for your December 2015 aggravated robbery causing grievous bodily harm to another. You were 16 years old at the time of that offending. You since have convictions for breaching conditions on your release and for assault.

—pre-sentence report

[9]    For your sentencing, I have a pre-sentence report prepared by the Department of Corrections. The report-writer notes your current offending to be the consequence of your gang membership and with whom you socialised and lived. Given that connection, you are assessed at medium risk of reoffending with high risk of harm to others. You claim to have moved on, now living with your partner and child and contracting to a plasterboard installation company which values your contributions. The report-writer recommends, if released, you be subject to special counselling and non-contact conditions.

—s27 report

[10]   You have asked I hear Emma Lutui on your background and its relevance to your offending and sentence. From her interview with you, she identifies: your exposure to and experience as a victim of family violence; your unstable education at schools in Australia and New Zealand; your removal into state care; your isolation from your Samoan culture; and your homelessness, drug and alcohol use and incarceration, all from an early age; leading to your gang affiliation — all as indicators of deprivation relevant to your offending. She reinforces there is room for intervention, from which you have potential to benefit, and recommends cultural family therapy.

Approach

[11]   Sentencing involves two steps.7 First, I indicate what starting point offending of this type would attract. That involves identifying the aggravating and mitigating features of the offending. Second, I adjust that starting point up or down to take into account your personal circumstances.

[12]   The usual purposes and principles of sentencing are relevant.8 Those include holding you accountable for the harm you have done and getting you to accept responsibility for it. Your sentence must be proportionate to the offending’s seriousness, consistent with others for similar offending and the least restrictive outcome appropriate in the circumstances.

[13]   Of critical context here was Mr Crawford’s seven years and four months’ imprisonment sentence on his guilty pleas to three charges of the same intentional damage.9 Powell J there took the three shootings as the lead charges, for uplift by reference to the other offending (which, in Mr Crawford’s case, also included firearm and ammunition charges).10

7      Moses v R [2020] NZCA 296.

8      Sentencing Act, ss 7–8.

9      R v Crawford [2022] NZHC 1588.

10 At [13].

[14]   Your sentence is to be consistent with that and derivative sentences,11 subject to your respective roles in the overall offending and those aggravating or mitigating factors personal to you.12

Starting point

[15]   Powell J took a starting point of six years’ imprisonment for Mr Crawford’s direct intentional damage offending,13 uplifted by two years for each his criminal organisation participation and indirect aggravated burglary offending.14 He arrived at that ten-year starting point with reference to comparable caselaw,15 the offending’s lack of any mitigating factors, and four aggravating factors, largely shared by your offending. Those are “brazen and reckless use of firearms in multiple suburban streets”, “in broad daylight with an absolute disregard for the public who were in the community at the time”, “on multiple days and at multiple locations, ultimately damaging more than nine properties and a vehicle”, with “a high degree of planning and premeditation”.16

[16]   You played a lesser role than either Mr Crawford’s lead or some others’ active participation at the alleged intentional damage offending addresses.17 You nonetheless were convicted as party to intentional damage offending, which means you share culpability, or responsibility or blame. And you provided important information for the planned shootings, obtained from your surveillance of target properties. It was not by any means minor involvement, but a contributor to the plan’s success.

[17]    Given my starting points of five and three years for others’ direct and indirect involvement, I take a three-year starting point for you also, Mr Williams.

[18]   I see no reason to distinguish you from Mr Crawford on your alleged participation offending. That offending is not defined by the extent of your

11     Sentencing Act, s 8(e).

12     R v Kohey (2003) 20 CRNZ 62 (CA) at [20].

13     R v Crawford, above n 9, at [17].

14     At [19] and [23].

15 At [14], citing R v Tamati [2012] NZHC 221, R v Jolley [2018] NZHC 93, R v Taipeti [2018]. NZHC 1482, and R v Waihape [2012] NZHC 198, each with six-year starting points except for the three-and-a-half year starting point for Jolley’s “foot soldiers”.

16 At [15].

17 Walker-Dahlberg v R [2020] NZCA 661 at [41].

engagement in the intentional damage offending. Your participation is not otherwise distinct from Mr Crawford’s offending “carried out within [a gang] context and in the context of inter-gang violence”.18 For parity, I uplift the starting point by the same two years’ imprisonment, which incorporates a measure for the totality of the offending.19

[19]   Mr Crawford’s two-year uplift for the aggravated burglary offending was combined with  a  fourth  intentional  damage  offence,  in  neither  of  which  did  Mr Crawford “participate personally in the offending as it unfolded”.20 The summary of facts does not contend you personally participated in the aggravated burglary either. Although aggravated burglary is the more serious offence, and therefore could be thought to carry a larger proportion of the two-year allocation, my indication split the uplift at one year. Totality also was addressed by that approach.21 I apply the same uplift to you.

[20]   Adrian Awhi, another of your co-offenders, was sentenced by Venning J on 19 October 2022 to 11  months’  home  detention.22  The  Judge  preferred  to  take Mr Awhi’s participation charge as the lead charge,23 accepting Mr Awhi’s responsibility was significantly less than those for whom I had provided indications,24 uplifting a three-year starting point by one year for the intentional damage offences and six months for the aggravated burglary (all ‘tempered’ for totality).25

[21]   Lang J also sentenced Anthony Moses and Alan Cooper respectively to five years and two months’ and five years’ imprisonment,26 with the participation charge as the lead charge as that “encompass[ed] in large part the culpability inherent in the other charges”. But, he added, “in practical terms it does not matter which approach is used because the end sentence should be the same”.27 The Judge took a starting point of six years and six months imprisonment.

18     R v Crawford, above n 9, at [19].

19 At [19].

20 At [20 and [23].

21     My sentencing indication mistakenly referred to “aggravated robbery” charges, meaning ‘aggravated burglary’: R v Cassidy & Ors, above n 4, at [13].

22     R v Awhi [2022] NZHC 2711.

23 At [30].

24 At [31].

25 At [33].

26     R v Moses & Cooper [2022] NZHC 3089 at [49]–[50].

27 At [24].

[22]   Given Mr Awhi’s role essentially as a passenger in a car from which no other criminal conduct emanated, I do not see his offending as so ‘similar’ to yours that it is information materially affecting my indication.28 Mr Moses’ and Mr Cooper’s roles are referable to Mr Cassidy’s role. But your contribution, while important in terms of its strategic value, was not in direct participation. Some distinction from Mr Cassidy, Mr Moses and Mr Cooper is justified.

[23]   Adjusted for parity and similarly to my indication to Mr Thompson, I have    a starting point for you, Mr Williams, of five years’ imprisonment.

Adjustment for personal circumstances

—aggravating factors

[24]   My indication noted, while the intentional damage offending was aggravated by its connection with gang participation, no further uplift was justified than was imposed for the participation offending. The same applies for you. Your previous convictions also do not justify any further uplift, but serve instead to deny any credit for previous good character.

—mitigating factors

[25]   By reason also of parity with Mr Crawford and the others convicted after my indication, I will allow you the full 25 per cent discount for your guilty pleas.

[26]   You are at the far end of qualification for any youth discount, which recognises age-related neurological differences between young people and adults, meaning younger offenders may be less culpable or less responsible for their wrong-doing if driven by impulsivity, negative influences and peer pressure. Youth also has greater capacity for rehabilitation, with longer-run community benefit, compared to the ‘crushing’ impact of longer terms of imprisonment. Any absence of contrition or remorse may be as indicative of immaturity.29

28     Criminal Procedure Act, s 116(2).

29     Rolleston v R [2018] NZCA 611 at [28] and [36]; and Churchward v R [2011] NZCA 531 at [77].

[27]   You claim to have run with “the wrong crowd” since about 14 years of age, resulting in your offending. But here your participation in the offending was singular and strategic. It suggests a level of maturity, which may reflect also in your proposed separation from the gang. In a range of roughly 10–40 per cent discount for youth,30 on balance, I consider you should be toward its lower end at 20 per cent, but lifting away from the bottom by reason of your prospect for rehabilitation and reintegration.

[28]   Sentencing principle also is to allow a discount for credible personal background factors causing impaired choice and (therefore) diminished moral culpability.31 Your family’s broken circumstances and your early homelessness led you to seek mutual support from the gang. Especially given the retaliatory nature of the offending, your ‘choice’ to avoid offending very materially was impaired. Discounts of 15 per cent routinely are made under this head, with room for more in appropriate circumstances.32 I will apply a 15 per cent discount here too.

[29]   In total, those are discounts of 60 per cent, bringing your final sentence to two years’ imprisonment. As a short-term sentence, 33 it is substitutable with a sentence of home detention,34 which would recognise also your generally compliant period on EM bail, in the company of your family while working for your employer. I am satisfied the proposed address is suitable, and the occupants understand the circumstances of your detention there. Taking into account sentencing’s multiple purposes, and having regard for the desirability of keeping you in the community,35 home detention is the least restrictive outcome appropriate in the circumstances. It holds you accountable for your part in the group offending, while promoting your sense of responsibility for that harm and assisting in your rehabilitation and reintegration.

30     Roberts v R [2020] NZCA 441 at [35]; BB (CA732/12) v R [2013] NZCA 139 at [13].

31     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [161]–[162]; Poi v R [2020] NZCA 312 at

[32]–[51]; and Carr v R [2020] NZCA 357 at [55].

32     Tipene v R [2021] NZCA 565 at [22]–[23], citing Carr v R, above n 31, at [65]–[66].

33     Sentencing Act, s 15A.

34     Section 80A.

35     Section 16(1).

Sentence

[30]   Mr Williams, please stand. On your convictions, I sentence you to 12 months’ home detention at your family’s residence in Auckland’s Clover Park, also on the special conditions proposed by Corrections’ report-writer and by Ms Lutui. You may stand down. Take care Mr Williams.

—Jagose J