R v Williams
[2022] NZHC 1712
•18 July 2022
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI 2020-019-005265
[2022] NZHC 1712
THE QUEEN v
JUDIANNE RAUPUTIPUTI WILLIAMS
Hearing: 18 July 2022 Appearances:
D Young for the Crown
G A Walsh for Ms Williams
Sentencing:
18 July 2022
ORAL SENTENCING NOTES OF VAN BOHEMEN J
Solicitors:
Crown Solicitor, Hamilton
G A Walsh, Barrister, Hamilton
R v WILLIAMS [2022] NZHC 1712 [18 July 2022]
Introduction1
[1] Judianne Rauputiputi Williams, you appear today for sentencing having pleaded guilty to representative charges of supplying methamphetamine and of offering to supply methamphetamine,2 and to a charge of participating in an organised criminal group.3
[2] The maximum penalty is life imprisonment for the two methamphetamine- related charges4 and 10 years’ imprisonment for the participation charge.5
[3] You face two further charges of conspiring to supply methamphetamine6 and possessing methamphetamine for supply.7 The Crown has not offered evidence on those charges and invites me to dismiss them under s 147 of the Criminal Procedure Act 2011. I do so accordingly.
[4] My responsibility today is to sentence you on the three charges to which you have pleaded guilty.
[5]This is the process I will follow:
(a)First, I will outline the circumstances of your offending.
(b)Secondly, I will consider your personal circumstances relevant to the sentence.
1 Prior to imposing this sentence, Mr Walsh, counsel for Ms Williams submitted that, because rehabilitation courses in prisons were suspended because of the COVID-19 pandemic, I should defer Ms Williams’ sentencing to enable her to apply for a residential course such as at Odyssey House which she could attend on EM bail prior to being sentenced. I declined to do so. I said the pandemic affected everyone and it would become unmanageable to try and deal with individual cases that way.
2 Misuse of Drugs Act 1975, s 6(1)(c); and Crimes Act 1961, s 66.
3 Crimes Act 1961, s 98A.
4 Misuse of Drugs Act 1975, s 6(2)(a).
5 Section 98A(1).
6 Section 6(2A).
7 Section 6(1)(f).
(c)Thirdly, I will explain the approach to setting the sentences and discuss the requirements of the Sentencing Act 2002 as they apply in this case and in accordance with decisions of the Court of Appeal.
(d)Finally, I will impose the sentence I consider appropriate.
The offending
[6] Ms Williams, you were charged in relation to Operation Gulfport, a Police investigation into the manufacture and supply of methamphetamine in the Waikato region. The investigation identified an organised criminal enterprise involved in the large-scale manufacture and distribution of methamphetamine in the Waikato.
[7] Your co-defendants Richard Heller, James Smith and Michael Ormsby were identified as the operation leaders. Mr Ormsby, a senior member of the Mongrel Mob Waikato chapter, was identified as the financier. He sat above the others and allowed them to undertake the day-to-day activities relating to the manufacture and supply of methamphetamine.
[8] Mr Heller, who is or was your partner and is a senior member of the Mongrel Mob Rogue chapter, sat below Mr Ormsby. He facilitated the wholesale supply to you and others of methamphetamine manufactured by another co-defendant, Steven Griffiths.
[9] You were in the third tier of the group. You facilitated the day-to-day supply of methamphetamine to a regular customer base as well as running a number of “drug houses” in the community. You used other family members, including your daughter- in-law, Brittany Timoko, to assist you.
[10] According to the Amended Summary of Facts on which your guilty pleas were based, Police identified you as supplying methamphetamine on at least 74 occasions. The quantities involved were stipulated on 36 of those occasions. Based on those quantities, you supplied a total of at least 392.55 grams of methamphetamine. Police further identified you as offering to supply methamphetamine on at least 16 occasions.
Quantity was stipulated on 9 of those occasions. Based on those quantities, you offered to supply a total of at least 70.6 grams of methamphetamine.
[11] Your transactions typically involved quantities of at least one gram each. On that basis, you would have supplied or offered to supply at least another 45 grams of methamphetamine on the other occasions for which no quantities were stipulated.
Personal circumstances
[12] I now address your personal circumstances relevant to your offending, drawing on the Department of Corrections’ pre-sentence report and the cultural report prepared in accordance with s 27 of the Sentencing Act and your letter of remorse.
Previous history of offending
[13] You have approximately 80 previous criminal and traffic convictions for offending between 1994 and 2021. Apart from the offences for which I am sentencing you today, most of those convictions are for relatively minor dishonesty and traffic offences. There are two convictions for possessing methamphetamine and utensils, for which you were sentenced to community work. There are two convictions for possession of cannabis, but these are some years ago and attracted minor sentences.
[14] You have been sentenced to imprisonment a number of times for relatively short periods of a few months. One sentence of nine months’ imprisonment was suspended. You have also been sentenced to home detention, intensive supervision, community work and community service. You have breached community-based sentences nine times. A good number of the offences, including the current charges, were committed while you were on bail.
Corrections report
[15] The Corrections report assesses you as having a high likelihood of re-offending given the number of previous convictions and the nature of the current charges.
[16] You were recruited to undertake the methamphetamine offending by Mr Heller, who was or is your partner. You said you did it for the money and because your life
was full of struggles. You were taking methamphetamine yourself at the time. You say you started taking methamphetamine about 15 years ago, with Mr Heller’s encouragement.
[17] Based on your own self-disclosure, the report says a departmental assessment indicates you have a low risk of use with substances. However, the report then identifies attitude, associates, lifestyle and drugs as offending-related factors. It says you are keen to do rehabilitative programmes to address your alcohol and drug issues. You want to get back on track and you don’t want your grandchildren growing up while you are in prison.
[18] Your main support people are your family, in particular your nine children and 14 mokopuna. They are your world. Your children know of your current situation. Your twin children, aged 18, say you are a good mother to them.
[19] You say you have separated from Mr Heller because you realise you need to be with pro-social people. The Corrections report says you have expressed remorse and take full responsibility for your actions.
[20] The Corrections report says you identify as Māori from Matakana Island and that your whenua is from Tauranga. It says you have never learnt about your Māori heritage but would want to do a tikanga Māori programme upon release.
Cultural report
[21] The cultural report prepared by Raecheal Riddell provides a fuller picture and I have found it helpful. Ms Riddell spoke to you by VMR in an interview conducted within a Whakawhanaungatanga focused framework. With your permission, Ms Riddell also spoke to two of your children.
[22] You were born in September 1975 . Your mother was not well; she had a congenital heart defect. To relieve your mother of stress, you were whāngaied to your uncle and his wife. Your uncle was very close to your mother and treasured you. He became your father and I refer to him as such.
[23] Your mother died when you were two. Your birth father died when you were 12 of a heroin over-dose. You say you did not think too much of your biological parents because you had a great father in your uncle, who spoiled you because you were the only girl. You also had great relationships with your four older brothers.
[24] You were brought up at Mangakino and attended primary, intermediate and high school there. You were a high-achieving student and stayed at school until you were 16.
[25] Despite those happy aspects of your early life, you had dark times. Your father worked from dawn until dusk to support the family. Your mother was alcoholic and would spend the housekeeping money at the pub. This distressed your father because it meant you kids would miss out on food. Your mother also used to hit you. You think that was because your father spoiled you.
[26] When you were about six or seven, a cousin abused you sexually and continued to have sex with you over the next six years. Your cousin said not to tell anyone and that if you told your father, he would know you were lying.
[27] You started smoking cannabis and drinking alcohol when you were around nine. You and your friends would steal these from parents’ supplies.
[28] Your father found out you had been sexually abused when he found you drunk and crying under the clothesline when you were 12. You agreed you were crying because your birth father had died but said it was also because your older cousin had been having sex with you since you were little. Your father was very angry and beat your mother for letting this happen. It also caused a rift between your father and his sister whose son had been abusing you.
[29] You got pregnant to RM when you were 14. So you could continue at school, your parents raised your son. He is now 31 and has six children of his own.
[30] When you left school, you met JT and had a son, who is now 29 and has two children of his own. When you and JT separated, you agreed your son would be raised by his father. But your son stayed close to you.
[31] Your father died when you were about 23. He was killed in a horrific accident when chopping wood with a skill-saw. He cut through the artery in his foot and he bled out in front of you. Your mother could not cope and went to Vancouver for three months, leaving T and you feeling abandoned. You were traumatised by the loss of your father and became mentally unstable. Your drinking and use of drugs escalated to the point you struggled to function normally. One of your brothers came back from Australia to look after you.
[32] You had a short relationship with EE and had a son, who is now 28 and has two children of his own. You then got back together with RM, who had been released from prison. With RM, you had four more children: a daughter, who is 27 and has two children of her own, and three sons who are aged 25, 23 and 20 respectively. Two of your sons have a child of their own.
[33] You say violence was a feature of all of your relationships, but that RM was the worst. He would beat you when he had been drinking, even if you had stayed with him all night. He beat you so badly your children could not recognise you. You sucked it up because you thought that was what women had to do.
[34] You started your relationship with Richard Heller about 19 years ago. You had twins, who are now 18. You are very proud of them and they look after each other and you.
[35] Your life has been gang-related for many years. As I said earlier, Mr Heller is a patched member of the Rogue Mongrel Mob. Your twin children know that, but they are not interested in the Mob. There are no gang activities at home.
[36] You say your life prior to your methamphetamine offending was a struggle. You lived day by day, week by week. Selling methamphetamine meant you had money for the first time in your life. You could pay for things when your children needed
them and did not have to wait until you received your benefit. You could give money to your children. You needed for nothing either. But you recognise that making money for your whānau this way was wrong.
[37] Your youngest daughter says you are the best Mum she could ever want. You have a beautiful heart and good intentions, but you sometimes go about things the wrong way. One of her older brothers says much the same. He says your wanting to do well by all your children contributed to how you thought you were helping. All your children want you home.
Your letter of remorse
[38] In your letter, you say you are ashamed of the damage you have caused to yourself and others in the community. You are also embarrassed at the impact on your children, and you accept the consequences of the sentence I am to impose.
Approach to sentencing
[39] In sentencing you, Ms Williams, I must take into account the purposes and principles of sentencing as set out in the Sentencing Act. In particular, I must impose on you a sentence which holds you accountable for the harm your methamphetamine offending does to the community, promotes in you a sense of responsibility for and acknowledgement of that harm, denounces your conduct, and deters you and others from committing similar offences in the future. The sentence must also reflect the gravity of your offending, the seriousness of this type of offending and the desirability of consistency with appropriate sentencing levels.8
[40] On the other hand, I must be mindful of the need to assist in your rehabilitation and reintegration into the community and I must impose the least restrictive outcome that is appropriate in the circumstances.9
[41] I must also take into account your personal, family and cultural background. In considering that background, I must take into consideration the report prepared in
8 Sentencing Act 2002, ss (7)(1)(a)–(b), (e)–(f), 8(a)–(b) and (e).
9 Sections 7(1)(h) and 8(g).
accordance with s 27 of the Sentencing Act, unless satisfied there is some special reason that makes this unnecessary or inappropriate.10
[42] As set out by the Court of Appeal in Moses v R,11 there are two stages to sentencing:
(a)First, I must determine the appropriate starting point, adjusting for any aggravating and mitigating features of the offending itself.
(b)Secondly, I must adjust that starting point for any aggravating and mitigating circumstances relevant to you personally and for your guilty pleas.
[43] The Crown also submits a minimum period of imprisonment is appropriate given the commercial nature of the operation. I must, therefore, also consider whether to impose a minimum period of imprisonment, and, if so, for how long.
Stage one: starting point
[44] My first task is to set an appropriate starting point. Given the nature of your offending, the guidelines set by the Court of Appeal in Zhang v R for methamphetamine-related offending apply.12 In determining which sentencing band you come within and where in that band you should be placed, those guidelines require consideration of both the quantity of methamphetamine supplied and your role in the offending.13
[45] On quantity, the total identifiable amount of methamphetamine you both supplied and offered to supply is 463.15 grams. Without taking into account the many other occasions on which you supplied or offered to supply methamphetamine, that places you in band three, which indicates a starting point between six and 12 years’ imprisonment.
10 Sections 8(i) and 27(2).
11 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
12 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
13 At [118].
[46] Ms Young for the Crown and your lawyer, Mr Walsh, agree you should be considered in terms of band three. I proceed on that basis.
Role
[47] The Court of Appeal in Zhang described three categories of role—lesser, significant and leading—and has provided descriptions of behaviours describing each of those categories.14
[48] The Crown submits your role was “significant”, saying you clearly held an operational function within the chain. It says you were motivated by commercial gain, and you had an awareness and understanding of the scale of the operation because of your association with other group members, particularly Mr Heller. Mr Walsh agrees your role was “significant.”
[49]I accept that your role was significant.
Aggravating features of the offending
[50] The Crown submits that the commerciality and scale of your offending, the degree of premeditation and planning, the social harm to the community caused by methamphetamine use and your involvement with a criminal organisation are all aggravating features of the offending. However, I consider that these factors are inherent in any offending within band three and do no warrant specific attention in this instance.
[51] I am also doubtful that your offending was premeditated in the sense discussed by the Crown. I am satisfied that you were brought to the offending by Mr Heller and you became entranced with the money that was available to you and your whānau.
Parity with co-defendants
[52] The Crown submits your role in the operation sat below that of Mr Smith, Mr Griffiths and Mr Heller and above that of Mr King and Ms Timoko. It says a
14 At [126].
starting point of nine and a half years’ imprisonment is appropriate. Mr Walsh agrees your role sat between Mr Heller and Mr King, but submits a starting point of nine years’ imprisonment is appropriate.
[53] All your co-defendants have now entered guilty pleas. Three have been sentenced. The rest have all accepted sentence indications, the exception being Mr Ormsby whom I sentenced last week.
[54]I summarise their starting points below:
(a)The total identifiable quantity of methamphetamine attributable to Mr Heller was 868 grams, placing him in band four. He sat at the second tier of the group. He accepted the sentencing indication of Powell J indicating a starting point of 10.5 years.15
(b)The total identifiable quantity of methamphetamine attributable to Mr Smith, also at the second tier of the group, was 988.5 grams, placing him towards the upper end of band four. His role was accepted to be at the upper end of the “significant” category. He accepted the sentencing indication of Venning J indicating a starting point of 12 years.16
(c)The total identifiable quantity of methamphetamine manufactured by Mr Griffiths was between 1.2 and 1.6 kilograms, of which he supplied 802 grams. That places him towards the upper end of band four. He also sat at the second tier of the group, though as he is not a patched gang member his influence was deemed lower than that of Mr Heller and Mr Smith. At sentencing, Lang J determined a starting point of 12 years was appropriate for the manufacturing and supply charges, uplifted by 18 months to reflect further charges.17
(d)The total amount of methamphetamine attributable to Mr King was 350 grams, placing him in the middle of band three. At sentencing, Wylie J
15 R v Heller [2022] NZHC 663.
16 R v Smith [2022] NZHC 126.
17 R v Griffiths [2022] NZHC 218.
determined a starting point of eight years and nine months was appropriate, uplifted by nine months to reflect further charges.18
(e)The total identifiable amount of methamphetamine attributable to Ms Timoko was 81.359 grams, placing her in band two. She was described as a lower-level dealer and your agent, though she had a retail operation of her own. She accepted the sentencing indication of Powell J indicating a starting point of four years.19
[55] Given you supplied or offered to supply at least 463.15 grams of methamphetamine, which is close to the top of band three, and have admitted supplying or offering to supply on 45 other occasions, but because of the considerations I referred to earlier, I consider a starting point of nine years and two months’ imprisonment is appropriate. That places you between Mr Heller and Mr King, but closer to Mr King.
Stage two: aggravating and mitigating personal circumstances
[56] In stage two of the sentencing process, I adjust the starting point to take into account your guilty pleas and any aggravating and mitigating personal circumstances.
Guilty pleas
[57] You entered your guilty pleas on 7 June 2022, two weeks before the trial was scheduled to commence on for 20 June 2022. That is not the earliest opportunity. Usually, that would mean a discount of 25 per cent is not available.
[58] The Crown acknowledges, however, that there should be parity in the approach taken to sentencing you and your co-defendants. At their sentence indications on 1 April 2022, Mr Heller and Ms Timoko were advised they would receive 25 per cent discounts if they entered guilty pleas. Mr Ormsby received the same discount last Friday.
18 R v King [2022] NZHC 85.
19 R v Timoko [2022] NZHC 661.
[59] The Crown does not dispute that a consistent approach would result in your receiving the same discount.
[60]I agree and apply a discount of 25 per cent for your guilty pleas.
Aggravating features
[61] The Crown submits an uplift in the vicinity of three months is appropriate to reflect your previous convictions and breaches of community-based sentences. Mr Walsh submits an uplift is inappropriate and would amount to double punishment.
[62] In considering whether to apply an uplift for previous convictions, I must determine the extent of their relevance with regard to their type, frequency and seriousness. An uplift may not be warranted unless the prior offending shows a tendency to commit the offences which bring you here today.20
[63] While the many convictions for shoplifting may relate to your use of methamphetamine, I see little connection between your earlier offending and involvement in the commercial distribution of methamphetamine. I make no uplift.
Section 27 cultural report
[64] As I have set out earlier, you had a difficult upbringing. You were loved by your father and did well at school. But you were beaten by your mother and were serially abused from an early age by one of our cousins. You were introduced early to drugs and alcohol, you had children from an early age, and you and your first child were traumatised by the death and loss of your father.
[65] You had a series of violent relationships and you were regularly beaten by the partner with whom you had five of your nine children. You have watched some of your children go through the same cycles of violence. Through your last partner, you were drawn into the world of the Mongrel Mob and criminality, which led to your current offending.
20 Jones v R [2021] NZCA 402 at [33]; Beckham v R [2012] NZCA 290 at [85].
[66] Ms Young for the Crown acknowledges your history of sexual abuse and domestic violence and your reliance on alcohol and drugs. The Crown submits that this might explain drug consumption but says that does not explain the extent of your involvement in commercial drug dealing. The Crown also refers to the Corrections assessment that your risk of substance use is low. It says that any discount for cultural considerations should not exceed 10 per cent.
[67] Your lawyer, Mr Walsh, refers to decisions of the Court of Appeal where it was accepted that discounts of 15 and 20 per cent were appropriate.21 Mr Walsh notes that the Court of Appeal has also held that the assessment of the nexus between a defendant’s cultural background is not a mechanical exercise with a high threshold of proof but required an overall assessment, assisted by the available evidence of how personal circumstances might have contributed to culpability or offending.22 Mr Walsh submits that your offending was causally linked to your background and to your relationship with Mr Heller, from which it was difficult for you to escape. He says a discount of 20 per cent is appropriate.
[68] Ms Riddell has written an excellent report that illustrates with clarity and compassion, the challenges you have faced. She has not drawn the threads together in the way that other report writers might have to show how these challenges and your later offending were related to cultural deprivation of the kind discussed in Solicitor- General v Heta, where it was recognised that a discount as high as 30 per cent could be justified.23
[69] I am satisfied, nonetheless, that what you experienced in your early childhood and then through your series of violent relationships was directly linked to those factors. I am also satisfied that it led to your subservience to your partners, including Mr Heller, and to your involvement in commercial drug dealing. I am also satisfied that it was connected to your addiction issues. In that respect, I find the Corrections assessment that your risk of substance use is low to be both unconvincing and inconsistent with other aspects of the report.
21 Carr v R [2020] NZCA 357; Poi v R [2020] NZCA 312.
22 Waikato-Tuhenga v R [2021] NZCA 503 at [51].
23 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 3270.
[70] I accept your remorse and your commitment not to reoffend are genuine. I am also satisfied that, because of the strong bond between you and your children, there is a good prospect of you not re-engaging in drug dealing if you complete the appropriate programmes and keep away from the Mongrel Mob. I hope your children will help you do that. I hope they will also help you accept that short cuts to financial security can lead to big trouble – as your being here today demonstrates.
[71] For these reasons, I am satisfied that a discount of 17 per cent is appropriate in your case.
[72] This results in a total discount of 42 per cent or 46 months on the starting point of nine years and 2 months’ imprisonment. The result is a sentence of five years and four months’ imprisonment.
Time on EM bail
[73] Mr Walsh has submitted that you should get credit for the time spent on electronically monitored bail. The Crown does not dispute that submission.
[74] You spent 17 months on EM bail. Accordingly, I deduct eight months from your sentence to reflect that time on EM bail.
End sentence
[75]This results in an end sentence of four years and eight months’ imprisonment.
Minimum period of imprisonment
[76] Under s 86 of the Sentencing Act, I may impose a minimum period of imprisonment if I am satisfied that the non-parole period for your sentence under s 84(1) of the Parole Act 2002 is insufficient to hold you accountable for the harm to the community from your offending or to denounce your conduct, or to deter you and others from committing similar offending.24
24 Sentencing Act, s 86(2).
[77] The Crown submits that I should impose a minimum period of imprisonment of 40 per cent of your sentence – which would mean you would not be eligible for parole for one year and 10 months.
[78]Mr Walsh submits that no minimum period of imprisonment is required.
[79] Without a minimum period of imprisonment, the non-parole period on your sentence would be one year and seven months’ imprisonment.
[80]The difference between that and what the Crown seeks is three months.
[81] There can be no guarantee, of course, that you would be granted parole at the end of the standard non-parole period. But, in the circumstances of your case, if the Parole Board sees fit to release you at that point, I see no reason to make you wait another three months to re-join your children and your mokopuna.
[82]Accordingly, I impose no minimum period of imprisonment.
Result
[83]Ms Williams, please stand.
[84] On the representative charges of supplying methamphetamine and of offering to supply methamphetamine, and on the charge of participating in an organised criminal group, I sentence you to a term of four years and eight months’ imprisonment.
Fines
[85]The Corrections report records that you have outstanding fines totalling
$2,077.00. Given that you are to spend the next year or more in prison, I remit those fines.
[86]Please stand down, Ms Williams.
G J van Bohemen J