R v Williams
[2022] NZHC 2660
•14 October 2022
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2020-070-1763
[2022] NZHC 2660
THE KING v
CHARLENE WILLIAMS
Hearing: 14 October 2022 Appearances:
J M Sutton for Crown
N M Dutch for Defendant
Judgment:
14 October 2022
SENTENCING REMARKS OF LANG J
Solicitors:
Crown Solicitor, Tauranga
R v CHARLENE WILLIAMS [2022] NZHC 2660 [14 October 2022]
[1] Ms Williams, you appear for sentence having pleaded guilty to two charges of being in possession of methamphetamine for supply,1 one charge of conspiring to supply methamphetamine2 and one charge of being in unlawful possession of a firearm.3 The Crown offers no evidence on the remaining charges that you face and I now make an order under s 147 of the Criminal Procedure Act 2011 discharging you on those charges.
[2] You entered your pleas after receiving a sentence indication from me on 5 August 2022.4 I indicated a starting point on all charges of three years nine months imprisonment.5 I also indicated that a discount of 25 per cent, or 11 months, would be available to reflect guilty pleas.6
[3] It is now necessary to consider whether, and if so to what extent, the sentence should be reduced to reflect other mitigating factors identified in the material now before the Court. If the end sentence is less than two years imprisonment it will be necessary for me to determine whether the sentence should be converted to one of home detention.
The sentence indication
[4] It is not necessary for me to repeat the factual basis underpinning the charges. I set this out in my sentence indication.7 My sentence indication will be annexed to, and form part of, these remarks.
[5] In short, I found that you were in close contact with those towards the top of the drug dealing organisation with which you were involved. You were a retail dealer in methamphetamine, albeit not at a street level. These factors persuaded me that the appropriate starting point on the drug-related charges was one of three years three months imprisonment.8 I then added an uplift of six months to reflect the fact that,
1 Sections 6(1)(f) and 6(2).
2 Misuse of Drugs Act 1975, s 6(2A).
3 Arms Act 1983, s 45(1).
4 R v Williams [2022] NZHC 1926.
5 At [14].
6 At [17].
7 At [4]-[8].
8 At [12].
when the police searched your property, they found three firearms.9 You were unlawfully in possession of these because you do not hold a firearms licence.
[6] Finally, I indicated I would apply a discount of 11 months, or 25 per cent, to reflect guilty pleas.10 This resulted in an indicated sentence of two years ten months imprisonment before taking into account such other mitigating factors as may be identified at sentencing.
Additional mitigating factors
[7]On your behalf Mr Dutch advances three further mitigating factors. These are:
(a)Factors relating to your background identified in a report tendered under s 27 of the Sentencing Act 2002;
(b)Efforts you have made to rehabilitate yourself; and
(c)Time spent subject to bail restrictions.
Factors identified in the s 27 report
[8] I do not propose to canvass the matters contained in the s 27 report in any detail. It reveals, however, that you were abandoned by your birth father and were then raised in a highly dysfunctional family environment. This was characterised by emotional neglect and substance abuse. Unsurprisingly, you became involved in drinking alcohol at an early age, and this led to risk-taking behaviours including the consumption of drugs. It also meant your educational achievements at school were minimal. As a result, you have never held down any form of meaningful permanent work. Most of your employment has taken the form of seasonal work in the agricultural and horticultural sectors.
[9] In addition, your family was immersed in gang culture and this resulted in you both witnessing and being the subject of abuse and violence of varying types. You
9 At [13]-[14].
10 At [17].
have been closely involved with gang members for many years and the present offending was heavily influenced by persons who were deeply involved in gang culture.
[10] Your consumption of methamphetamine began whilst you were in a relationship of approximately 12 years duration. When this came to an end your drug habit escalated and you fell deeper into your addiction to methamphetamine.
[11] I have no doubt that the factors identified in the s 27 report sowed the seeds for the present offending. I propose to allow a discount of six months, or just over 15 per cent, to reflect those factors.
Rehabilitative efforts
[12] The pre-sentence report and the s 27 report describe in considerable detail the efforts you have made to rehabilitate yourself over the last two years following your arrest on the present charges. These include courses you have undertaken and completed successfully at recognised rehabilitative facilities, such as those operated by the Gracegate, Bridge and Higher Ground organisations. I have received several letters from persons associated with these programmes confirming this fact. You are plainly held in high esteem and hold a position of significant responsibility at the Gracegate facility where you are presently living. Your efforts to rehabilitate yourself deserve recognition. I allow a further discount of seven months to reflect this factor.
Time spent on EM bail
[13] Finally, you are entitled to credit for the fact that you have been subject to restrictive bail conditions for approximately 23 months. You spent three months on EM bail subject to a 24 hour curfew. You then spent 15 months on EM bail subject to a night-time curfew. Finally, you spent five months on ordinary bail subject to an evening curfew. This was while you attended the Higher Ground programme. Mr Dutch advises me that this programme had restrictive residential conditions, and you were prohibited from leaving the facility at any time unless approval was given by those operating it. In addition, I note that the grants of bail enabled you to attend
to rehabilitative efforts that you have undertaken. I propose to allow a further discount of five months to reflect this factor.
Summary
[14] Coupled with the discount for guilty pleas, the additional mitigating factors I have identified result in deductions totalling two years five months from the starting point of three years nine months imprisonment. This produces an end sentence of 16 months imprisonment.
Home detention
[15] Given your response to a lengthy remand on EM bail and the significant rehabilitative efforts you have undertaken I have no doubt that a sentence of home detention is the appropriate outcome in your case. It would be an entirely backward step to require you to return to prison after all you have done.
Sentence
[16] I therefore impose a sentence of eight months home detention on all charges. You are to go directly from Court to the nominated address, where you are to await the arrival of the relevant authorities who will install the monitoring equipment if that has not already been done.
[17] You are to serve the sentence subject to the conditions set out in the pre- sentence report dated 21 September 2022. I see no reason, however, why you should be required to attend an anger management programme given the fact that none of the present charges involve allegations of violence. That condition is to be deleted. You are also to be subject to the first three special conditions set out in the pre-sentence report.
[18]Stand down.
Lang J
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS
PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEUDRE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-070-1763 [2022] NZHC 1926
THE QUEEN
v
CHARLENE WILLIAMS
Hearing: 5 August 2022
Appearances: J M Sutton for Crown
N M Dutch for Defendant
Judgment: 5 August 2022
SENTENCE INDICATION OF LANG J
Solicitors:
Crown Solicitor, Rotorua
[1] Ms Williams faces a variety of charges relating to the possession and supply of methamphetamine. In addition, she faces a charge of being in unlawful possession of a firearm.
[2] Ms Williams now seeks a sentence indication. This is an indication of the sentence the Court would impose if she entered guilty pleas to the charges in the near future. To assist with this process the Crown proposes to rationalise the charges so that Ms Williams will face two charges of being in possession of methamphetamine for supply, one charge of conspiring to supply methamphetamine and one charge of being in unlawful possession of firearms.
[3] If Ms Williams elects not to accept the indication, it will cease to have any legal effect. If she is found guilty at trial the Judge will impose sentence based on the facts as the Judge finds them to be following trial.
The charges
[4] Ms Williams’ offending came to light during a large-scale police operation known as Operation Silk. This targeted drug dealing activities by members and associates of the Mongols motorcycle gang. Ms Williams’ connection with those persons is that her whangai brother, Mr Hone Ronaki, is one of the senior members in the gang. He is also facing charges arising out of Operation Silk.
[5] The police intercepted communications between Ms Williams and Mr Ronaki for the period between December 2019 and June 2020. These revealed that Ms Williams and Mr Ronaki were in close contact with each other in relation to the acquisition and supply of methamphetamine.
[6] Several of the intercepted communications in February 2020 are equivocal in the sense that it is clear that Ms Williams and Mr Ronaki are endeavouring to locate drugs, but nothing appears to eventuate. Later on, however, it is clear that arrangements are being made for methamphetamine to be sourced from Auckland and Ms Williams and Mr Ronaki express keen interest in acquiring some of this. These discussions have led to the charge of conspiring to supply methamphetamine.
[7] On 10 April 2020 intercepted communications reveal that Ms Williams was in possession of two ounces of methamphetamine, one of which was to be for herself and the other for Mr Ronaki. The Crown case, which is accepted for present purposes, is that Ms Williams intended to supply at least some of this to other persons. Two ounces of methamphetamine is the equivalent of 56 grams.
[8] The police terminated the operation on 23 June 2020. On that date they executed a search warrant of Ms Williams’ address. There they located 3.5 grams of methamphetamine. They also found three bolt-action rifles. Ms Williams does not have a firearm’s licence, so was therefore in unlawful possession of the weapons.
Starting point
[9] The first step in the sentencing process is to set a starting point for the sentence to be imposed on the drug-related charges. I will then add an uplift to reflect the firearms charge.
[10] Both counsel agree that the starting point on the drug-related charges needs to be formulated having regard to the guideline judgment of the Court of Appeal in Zhang v R.11 In that judgment the Court of Appeal identified five bands of offending. Counsel are agreed that Ms Williams’ offending falls within Band 2 identified in Zhang. This relates to the possession of less than 250 grams. However, although quantity remains important, the Court of Appeal also emphasised that the courts must identify the role played by the offender in drug-related activity. The Crown submits that the communications show that Ms Williams falls within the category identified by the Court of Appeal as being significant. Her close relationship with Mr Ronaki meant she was in close contact with persons towards the top of the drug-dealing tree and she had a clear idea where the drugs were coming from. She then sold drugs at retail level to others.
[11] On Ms Williams’ behalf Mr Dutch submits that the offending falls within the category described by the Court of Appeal as “lesser”. This relates to persons who
11 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
have a lesser involvement in drug-dealing activity and are not closely connected with the source of supply.
[12] I consider Ms Williams falls somewhere between the two categories. Clearly, she was in close contact with those towards the top of the organisation. On the other hand she appears to have been a retail dealer, albeit not at street level. Taking those factors into account I consider an appropriate starting point on the drug related charges as one of three years three months imprisonment.
[13] It is necessary to add an uplift to reflect the fact that three firearms were found at the property. As Mr Dutch has pointed out, Ms Williams’ property is used communally by a large number of persons. Nevertheless, by her pleas Ms Williams would be acknowledging she was at least in joint possession on the firearms. On a standalone basis the offence of being in unlawful possession of a single firearm can easily attract a starting point of 18 months to two years imprisonment. The Court obviously needs to factor into the equation the fact that Ms Williams was in possession of three firearms. However, totality considerations are important. The Court cannot impose a sentence that is out of all proportion to the overall culpability of the offending.
[14] Taking these factors into account counsel agree that an uplift of around six months is appropriate for the firearms charge. I agree with that assessment. It follows that the indicated sentence is one of three years nine months imprisonment before taking into account aggravating and mitigating factors personal to Ms Williams
Aggravating factors
[15] The Crown does not suggest an uplift should be applied to reflect previous convictions for any other aggravating factor personal to Ms Williams.
Mitigating factors
[16] The remaining step in the process is to ascertain the extent to which the starting point should be reduced to reflect mitigating factors. At this stage I would only be prepared to indicate the discount to be given for guilty pleas.
[17] Although Ms Williams was arrested some time ago, the Crown case has only recently become clear. Disclosure has been ongoing. For that reason both counsel agree a discount of 25 per cent is appropriate. This reduces the sentence by 11 months to one of two years ten months imprisonment.
[18] At sentencing it may well be possible to reduce the starting point further based on mitigation factors such as compliance with EM bail conditions over a lengthy period, as well as any issues that may arise out of Ms Williams’ addiction to methamphetamine. Should the sentence reduce to one of two years imprisonment, I accept that a sentence of home detention is a realistic option. The Crown agrees with this assessment.
Time for acceptance
[19] Mr Dutch is to file and serve a memorandum no later than 5 pm on Monday 8 August 2022 to advise the Crown and the Court whether Ms Williams accepts the indication. Mr Dutch has indicated, however, that Ms Williams is likely to enter guilty pleas to the charges even if she does not accept the indication.
[20] Should that remain the position Ms Williams is to be arraigned in the High Court at Auckland on Wednesday 10 August 2022 at 9.45 am. The Crown has indicated it will not oppose Ms Williams being granted bail pending sentence.
Lang J