R v Williams

[2022] NZHC 2206

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-209-000241

[2022] NZHC 2206

THE QUEEN

v

ARMANI WILLIAMS

Hearing:	31 August 2022
Appearances:	K A White for the Crown E Huda for the Defendant
Judgment:	31 August 2022

SENTENCING REMARKS OF NATION J

[1]                  I am going to begin my remarks by acknowledging all of you who have read victim impact statements and those who wrote them, even the statements that weren’t read. It is not hard to see the pain that you have all endured and that was apparent in what you have said. What I hope is, from today, you will find the strength to move on and really, I suppose, honour Levi through demonstrating that strength amongst each other so that you can make what you want to and need to of your lives as he would have wanted for you and, of course, as he would have expected.

[2]                  Levi sounds like a special young man. I acknowledge that, with what happened, what some of you witnessed, what those of you had to go through when he was taken off life support, with the way he died, you have memories and a sadness which will never go away.

R v WILLIAMS [2022] NZHC 2206 [31 August 2022]

[3]                  I also want to acknowledge the whanau and support people who are here for [Armani]. He is fortunate to have your support because this Court sometimes sees people who are in the gravest of trouble, as [Armani] is, and they have no one who comes to Court for them. But you also have a responsibility to him, and indeed Levi’s family, to show that he can have no respect for what he did. You have to do everything you can to make sure that there is no recurrence of this and that no other family has to go through what Levi’s family is going through.

[4]                  But, to Levi’s family, you will understand that no sentence I impose can make up for your loss. I am sure that you understand that, with a manslaughter charge, I cannot sentence Armani as if he had intended to kill Levi or thought this could happen, or did not care whether that was the result and consciously took the risk that Levi might be killed. He cannot be sentenced as if he was reckless in the way necessary for someone to be guilty of murder.

[5]                  Armani, you know I am going to sentence you to imprisonment. Because I have to explain what I am doing, my remarks will take a little time. So, I am just going to talk to you to start with in simple terms.

[6]                  You are 17. You were in the Youth Court a number of times because of your violence. Your pre-sentence report says that, with you, there is a high risk you will harm others given your propensity for violence.

[7]                  You have killed a young man who was just 18. He wasn’t threatening you in any way. You knew him. He was a friend to someone from the family that had cared for you.

[8]                  In the letter you wrote to the family and friends of Levi Haami in the days after his death, which everyone knows now and it has been confirmed they did not receive, you said “I do not know what I can do to help you and your family except take responsibility for my reckless actions and hold myself accountable”.

[9]                  I will tell you what you can do. You can really learn from what happened. You can think every day how you are never going to be violent like this again. There is

potential for you to do good for yourself and other people. You have a young daughter who needs you. You have a foster family who, for years, did their best for you through thick and thin and who still want to support you. You have the love of your grandmother, your tāua. There are others in the family who want to support you. You are smart. You have been good at sports that require discipline. The man who did the s 27 report for you, Jamie Lee Tuuta, has told you that, if you choose to embrace it, your Māori and Cook Islands whakapapa could be used to help you grow up to have mana, in place of the shame which you now, rightly, should feel because of what you did. So, you have the potential to make changes and make something really positive of your life. That is what you can do to try to make up for all the suffering you caused through Levi’s death.

[10]              But, if you don’t learn from this, the risk is that one day you will be violent again and in prison again. Worst of all, there is the risk that you will be violent for no good reason to someone else and you will again cause all the pain and suffering that you have heard about today.

[11]              So, the one way you can try to make up for what you did is to work with everyone who wants to help you to show you can be a much better person than you have been.

[12]I now deal with matters as I have to on a sentencing.

[13]              At about 2.00 am on Saturday 4 December 2021, Levi Haami was in the carpark of the Countdown supermarket on Moorhouse Avenue with a group of friends. He had travelled there in a vehicle with four others. He got out of the vehicle, walked to some clothing bins near the corner of Madras Street and Moorhouse Avenue to urinate. At that time, you Armani were leaning out of the rear passenger seat window of a vehicle passing on Moorhouse Avenue. There was verbal abuse between you and Levi about what he was doing. The vehicle you were in did a U-turn and entered the Countdown carpark. At that stage, Levi was walking back to the vehicle he had travelled in. You got out of the vehicle, were agitated, and approached Levi. You both exchanged words before Levi continued walking away from you. You walked up to him, punched him in the side of the head, knocking him unconscious and causing him

to fall heavily to the ground. You kicked him in the leg and yelled angrily at him before returning to your vehicle and driving out of the carpark. You returned approximately 10 minutes later in the same vehicle. Members of the public and Levi’s associates were performing first aid on Levi. You know that one of those people trying to help Levi was related to your foster parents. You asked “is he breathing” before driving from the scene. You told Probation that you left the scene because you were told, in no uncertain terms, to do so. That was after you had returned. It is understandable that others spoke to you in that way, but it does not change the fact that you abandoned Levi after hitting him so hard that he fell to the ground, never to get up again.

[14]              As a result, Levi suffered serious head injuries from which he could not survive. His life support at the hospital had to be turned off. He died at 4.40 pm on Sunday 5 December 2021.

[15]              Levi obviously knew the right and safe thing to do was to walk away from a potential confrontation. You did the opposite. Your anger and hostility towards him were evident in everything you did. You showed no concern for him when he fell so heavily.

[16]              The courts and Judges recognise that, at 16, brains are not fully developed. Young people do not have the same ability to think sensibly about what they are doing in a way that comes with maturity. But, nearly all 16 year olds still know that it is not alright to punch a defenceless person, who is not threatening them in any way, in the head and to punch them so hard it could cause a serious injury. You thought it was alright to do that and today you must face the consequences for what you did.

[17]              Levi’s family have to live with the consequences of what you did for the rest of their lives.

[18]              As you know, I had to first arrive at a starting point for your offending. You know what that was because you wanted a sentence indication before you pleaded guilty to the charge of manslaughter. The indication I gave will be part of this sentencing.

[19]              With reference to cases, which I will list with these remarks, your lawyer suggested a starting point sentence of three years’ imprisonment.1 With reference to other cases, which I will also list, the Crown submitted a starting point of five to six years.2 The starting point I adopted was five years’ imprisonment. In giving you that indication, I noted the degree of premeditation involved, it wasn’t just a momentary assault in the way that your counsel today described. In giving you that indication, I did notice the degree of premeditation involved, the seriousness of an assault to the head and your actions during the assault and immediately afterwards.

[20]              In his written submissions for you for this sentencing, Mr Huda accepted that the offending merited a starting point of five years’ imprisonment. That is the starting point for your sentence today.

[21]              I told you that, with a guilty plea, you would receive a credit. That is a credit which Judges give because of the way, with a guilty plea, a person is taking responsibility for their actions and, in that way, is showing they are sorry for what they have done. A guilty plea spares the family and friends of the victim the ordeal of a trial and helps them to move on in their lives. It spares the State and thus the community the costs and burden of a trial. As I said when giving my indication, you wanted an indication, as you were entitled to, before you pleaded guilty. Levi’s family and friends had the ordeal of a sentence indication hearing. The Court and the lawyers involved had to put in all the work and provide the resources for that sentence indication hearing. You could have pleaded guilty without that hearing. On the evidence, there could be no defence to the charge of manslaughter. The discount I said you would receive for a guilty plea was 20 per cent.

[22]              In his submissions, Mr Huda accepted a 20 per cent or 12 months deduction for a prompt guilty plea in line with the sentence indication was appropriate.

1      R v Nepia [2019] NZHC 1932 at [2]; Murray v R [2013] NZCA 177 at [21] citing Kepu v R [2011] NZCA 104 at [9]; R v Sagatea HC Auckland, CRI-2009-092-17953, 20 May 2010; R v Cassidy HC New Plymouth, T2/03, 10 July 2003; R v Kokiri [2019] NZHC 501; R v Bryenton HC Auckland, CRI-2009-004-3080, 7 April 2009.

2      R v Ioata [2012] NZHC 3389; R v Tai [2010] NZCA 598; R v Taueki [2005] 3 NZLR 372 (CA);

Everett v R [2019] NZCA 68.

[23]              I said there could be a further discount for matters relating to you personally. An important such matter was your youth. I knew I would be receiving further information about you personally. I indicated, with a guilty plea, you could receive a further discount of 20 per cent for other matters relating to you personally but that could be adjusted upwards or downwards depending on the information I received.

[24]              To your credit, you accepted the sentence indication promptly after the hearing and pleaded guilty the same day the indication was given so that Levi’s family and friends were able to hear that plea, hear the summary of facts and my entering a conviction.

[25]              In his submissions now, Mr Huda said there should be a 17 per cent, or 10 months, deduction for youth and 15 per cent or nine months for background matters, so as to reduce the end sentence to the region of two and a half years’ imprisonment.

[26]              I am guided as to how I consider the discount for youth by a judgment from the Court of Appeal in Diaz v R.3 I am going to refer to that in some detail. Mr Diaz was found guilty at trial of causing grievous bodily harm with intent to cause grievous bodily harm, and an unrelated charge of injuring with intent to injure. He and others associated with his family attacked a man who had been annoying people at a gathering in their home and the father of whom his family were protective. The victim left the house. Mr Diaz and others were called to the house. They met up with the victim outside. The attack began with the victim punching one of the attackers. Someone drove a car into the victim. He was then punched and kicked while on the ground. The attack on him only finished when neighbours and members of the public intervened.

[27]              The Court of Appeal said, arguably, there were some mitigating features to the offending — an element of provocation, no attack to the victim’s head, and an issue of self-defence at least at the beginning of the attack.

[28]Thomas and Wylie JJ in the Court of Appeal said:

3      Diaz v R [2021] NZCA 426 at [37].

[36]      Mr Diaz had only very recently turned 17 years old at the time of the principal offending. There was a psychological assessment before the Court prepared by Dr Ingalise Jensen, a clinical psychologist, as well as a risk assessment report. She expressed the view that Mr Diaz lacked the maturity, impulse control and foresight to consider the consequences of his actions in the midst of what was a volatile situation.

[37]      We accept that youth was the major driver of Mr Diaz’s offending. Youth discounts can be and often are provided to young offenders to recognise the age-related neurological differences between young people and adults. Such discounts acknowledge that an offence may be an act of immaturity or youthful indiscretion, young people can be more vulnerable or susceptible to negative influences and outside pressures, and young people may fail to appreciate the full gravity of the offending. Youth discounts also recognise that imprisonment is likely to be disproportionately severe on young people and that young people have a greater capacity for rehabilitation.

…

[39] There is no fixed discount for youth. Sometimes a youth discount can have a radical effect on a sentence, even where the offending is serious. In other situations, the discount can be minimal or even non-existent. A realistic assessment, balancing all factors, is required in each case.

(footnotes omitted)

[29]              The Judge allowed a discount of 18 per cent on a starting point for the main offending of six years’ imprisonment. The Court of Appeal said this should have been 30 per cent.

[30]The Judges’ said:

[40] Mr Stevens submitted that the reduction of 18 per cent allowed by the Judge was consistent with reductions allowed in other cases and appropriate given the gravity of the offending. We disagree. Having read Dr Jensen’s  report, we are persuaded that Mr Diaz lacked maturity, impulse control and foresight. He was caught in a volatile situation, surrounded by family members and others. He was trying to protect his impaired father from a person he perceived to be a threat. He was susceptible to the outside pressures created by the situation in which he found himself. He was known as “a fighter” by his family. It is likely that he was spurred on by those around him, perhaps subconsciously. We would have allowed a discount of 30 per cent to recognise Mr Diaz’s various youth-related matters. In our view, the Judge made a material error by failing to provide sufficient discount for this factor.

[31]              Armani, you were violent in a very different situation. You had never been threatened. The situation was not volatile. You have not suggested that anyone encouraged you to attack Levi as you did. It is apparent from the pre-sentence report that you told the driver to turn the car around and take you back, and into the

Countdown carpark. In that way, your violence was premeditated. Your punch to the head was not a spontaneous reaction to a confrontation you had to face. But., you obviously did not think about what you were doing, how dangerous it was or the injuries you could cause.

[32]Unlike Mr Diaz, you were not a first-time offender.

[33]              On 8 September 2020, in the Youth Court, you were sentenced on 14 charges. These included assault with intent to rob (20/5/2020), possessing a knife in a public place (18/3/2020), robbery by assault (21/1/2020), threatening to kill (14/11/2019), common assault (24/8/2019) and assault with a blunt instrument (24/8/2019).

[34]From 1 July 2019, there was an amendment to s 18 of the Sentencing Act 2002:

18 Limitation on imprisonment of person under 18 years

(1) No court may impose a sentence of imprisonment on an offender in respect of a particular offence, other than a category 4 offence, or a category

3 offence for which the maximum penalty available is or includes imprisonment for life or for at least 14 years, if, at the time of the commission of the offence, the offender was under the age of 18 years.

[35]              It now says that a sentence of imprisonment cannot be imposed if, at the time of the offence, the offender was under the age of 18, but that does not apply to someone who is charged with manslaughter or other very serious charges.

[36]              Your counsel submitted that your Youth Court offending history cannot affect the length of your prison sentence for your present offending.

[37]              That is putting it too broadly. The Court of Appeal has made it clear there cannot be an uplift on an appropriate sentence on account of other offences for which a sentence of imprisonment could not be imposed.4

[38]              The Court of Appeal accepted that proofs of offending in the Youth Court are not convictions which have to be considered in terms of s 9(1)(j) of the Sentencing Act but they can be taken into account under s 9(4)(a). The Court of Appeal said it

4      Diaz v R, above n 3, at [32]; Waikato-Tuhega v R [2021] NZCA 503 at [26] and [27].

agreed that an offender’s Youth Court history could have some relevance to sentencing and would likely preclude any credit for previous good character but did not accept it could result in an uplift on sentencing.5

[39]              Your violence on this occasion killed someone. You must be held accountable for the harm you did. But, one of the purposes for which you have to be sentenced is to protect the community from you. That is particularly important when you have been assessed as a high risk of causing harm if you reoffend. This offending and your earlier offending also indicate to me that, if you do reoffend and cause harm, that harm could be serious harm. The need to protect the public is also relevant in my deciding to what extent a discount on a prison sentence is appropriate because of the way courts recognise imprisonment might, especially with young people, impair rehabilitative prospects.

[40]              The offending for which you Armani were sentenced in the Youth Court on 8 September 2020 went back to 24 August 2019. It thus seems likely that you had oversight from the Youth Court through to your sentencing on 8 September 2020. After your arrest following the homicide of Levi, you were on remand in Te Puna Wai until you had to be transferred to the adult prison. The pre-sentence report did not refer to the extent of progress or otherwise you made towards rehabilitation while you were there.

[41]              But, I cannot ignore the information provided to me in having to approve your transfer from the youth prison to the adult prison in July 2022. It was a transfer which you, Armani, consented to. The transfer was necessary because of the number of occasions on which you were violent or threatened violence to staff or others while in Te Puna Wai.

[42]              You told the s 27 report writer that you feel much safer in the youth wing of the Men’s Prison than you did at Te Puna Wai.

[43]              That s 27 report refers to you having had a very unsettled life with few boundaries outside those in the justice context, and the need for you to receive

5      At [32] and [33].

therapeutic support so you can learn to regulate your emotions. The s 27 report referred to your engaging in anger management and stopping violence courses in the prison and of your saying you do not want to fight any more, especially not after what has happened in the past year. The past year included your time at Te Puna Wai.

[44]              The pre-sentence report tells me that placement in the Youth Unit at the prison is assessed as appropriate and, should you engage within the unit, there are a number of educational and rehabilitative programme opportunities. Potentially, you would be able to remain there while you are serving the whole of your sentence. You may be considered for parole but, in that event, with your youth, the oversight that comes with parole will be of benefit to you and to the community in reducing the risk of further offending.

[45]              In submissions for the sentence indication, the Crown accept that a discount for youth would be appropriate but said the extent of the discount would depend on all the information made available for sentencing. Because of the seriousness of this offending and the way this offending and your previous offending in the Youth Court shows others are at risk from you, I consider the appropriate discount for youth is 10 per cent, that is six months.

[46]              Your counsel has not suggested there should be a further discount for remorse. I have today been told about the letter you wrote and your counsel read that out. That was a letter you wrote soon after Levi was killed. The probation officer has also said you made comments to him as to the sadness you recognise you have caused Levi’s family. Today, the Crown have pointed out to me that that letter has never been provided to the family, whanau, of Levi. Your counsel has confirmed that. It is a letter which is what you said in the days immediately after Levi’s death. Ms White, for the Crown, has referred me and given me information about a rap that you prepared while you were in Te Puna Wai which was available to anyone who chose to look at it on your Instagram account. And that rap is inconsistent with the remorse you expressed in your letter, and it is quite understandable that it caused considerable pain to Levi’s family. Mr Huda acknowledged that your remorse, to the extent you have expressed it, can only be given minimal weight.

[47]              The most tangible way in which you demonstrated your remorse was in pleading guilty when you did. And for that you are receiving credit. For you to receive further credit, there would have to be a tangible demonstration of remorse over and above that. The best way that you could have demonstrated that would have been through learning from what had happened and avoiding any repetition of violence or aggressive behaviour towards others while you were at Te Puna Wai. Unfortunately, that did not happen. From what I am told, perhaps you are beginning to commit to that now you are in the Youth Unit of the Men’s prison. But, there does not need to be a further discount for remorse above the credit you have received for your guilty plea.

[48]              Your counsel then asks for a further discount because of the matters referred to in the s 27 report obtained from Mr Tuuta. The first three years of any child’s life are crucial. Your parents were not able to care for you or protect you as they needed to, and neither were others in the family. You were uplifted by Oranga Tamariki at the age of six. You were in a number of homes but told Corrections that you often ran away. You did not have a relationship with your parents. You told the probation officer your father was unknown to you and you have no real relationship with siblings. The s 27 report tells me you had been to nine schools in the 10 years you were at school, the longest you stayed at one school was two years. The pre-sentence report tells me you had a longer placement from 2014 to 2019 when you appeared to do well. However, around the age of 13, you demonstrated antisocial behaviour. Your caregivers were concerned and felt they were unable to manage your behaviour. It was after you left that family that you entered the youth justice system at the age of 14.

[49]              Your grandmother told Mr Tuuta that, after you were born, your mother entered into a new relationship and there were a lot of callouts from the Police in respect of domestic violence. You told Mr Tuuta that you learnt to fight when you were in care. You were not able to grow up with the love and support of your birth family. That was not because Oranga Tamariki intervened and took you into their care, it was because, sadly, your family were not able to care for you in the way you needed. You did have a very unsettled life as a result of this but you also had the benefit for four years of a family who loved and looked after you as one of their own, who did their best to

provide you with stability through the boundaries that you had to accept in their home, and who I am told are still supportive of you.

[50]              Through your placement with that family there was at least the potential for stability and a positive example of how to live without criminal offending and, most importantly, without causing violence to others. But ultimately, in your teens, you were not willing to continue living within that environment.

[51]              You have been dislocated from the support and values you might have benefited from through acknowledging your whakapapa to Ngai Tahu but the s 27 report tells me this has also been your choice. You have not wanted to have that connection. The s 27 report from Mr Tuuta explains how making that connection could be good for you and how, importantly, Ngai Tahu might have the resources to support you in the community and of the potential, perhaps at some time in the future, for restorative justice on a marae. I direct that a copy of that report be provided to Corrections.

[52]              The discount I give you on account of your background and how that has impaired your ability to make the judgements and exercise the emotional control you needed so as to avoid this sort of offending is six months, 10 per cent.

[53]              This means your starting point sentence will be five years, less the credit of 12 months for your guilty plea and less 12 months for your youth and the s 27 matters I have referred to. Your end sentence will be three years (36 months). That is the sentence I am going to impose.

[54]              Armani, remember what I said at the beginning. Levi’s family, understandably, will probably never forgive you for what you did. But, the way you have to make up for what you did is to show everyone else that you learnt from this and can make changes. That is actually what you and your family said you needed to do in the Youth Court back in August 2020. It is what you must do to avoid being back in Court for something like this again.

[55]Armani, please stand.

[56]              On the charge of the manslaughter of Levi Haami, you are sentenced to imprisonment for three years.

[57]You can stand down.

Solicitors:

Raymond Donnelly & Co., Christchurch E Huda, Barrister, Christchurch.