R v Williams
[2019] NZHC 2832
•1 November 2019
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES,
OCCUPATIONS OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2019-096-2679
[2019] NZHC 2832
THE QUEEN v
STEPHEN WILLIAMS
Hearing: 1 November 2019 Counsel:
G J Burston for Crown
B Crowley as standby counsel
Judgment:
1 November 2019
JUDGMENT OF CHURCHMAN J (SENTENCING NOTES)
Introduction
[1] Mr Williams, you are for sentence on one charge of attempted murder.1 It is a third strike offence, which renders you liable for the maximum penalty of 14 years’ imprisonment, to be served without parole, unless that would be manifestly unjust.2
1 Crimes Act 1961, s 173.
2 Sentencing Act 2002, ss 86D(2) and (3).
R v WILLIAMS (SENTENCING NOTES) [2019] NZHC 2832 [1 November 2019]
[2] The Crown in this case seeks preventive detention which is an indefinite sentence. If a sentence of preventive detention is imposed, you must serve a minimum period of imprisonment (MPI) of not less than 14 years, unless I am satisfied that the imposition of such a MPI would be manifestly unjust.3
Facts
[3]I turn now to the facts of this case.
[4] This offence was committed at Rimutaka Prison. Before I describe it, I will address your first and second strike offences, both of which also involved very serious violence. They also have close similarities with this current offence in that they were callous, brutal and cowardly.
First strike
[5] Your first strike offence occurred while you were in Ngawha Prison in Northland. The reason that you were in prison is that you were sentenced to life imprisonment with an MPI of 15 years in 2004 for the murder of your partner’s daughter. On 8 August 2014, in Ngawha Prison, you went up behind a fellow prisoner, grabbed him in a headlock, and stabbed him repeatedly in the face and neck with a sharpened toothbrush, continuing despite other prisoners urging you to stop.
[6] The writer of your pre-sentence report indicated that you explained that you intended to kill the victim and, rather than expressing remorse for the harm you caused, you were disappointed that you had failed to kill him.
[7] Judge Sinclair adopted a starting point of seven years’ imprisonment.4 After uplifts for aggravating features and then a discount of 25 per cent for your guilty plea, the Judge imposed a sentence of five years and eight months’ imprisonment.5 However, as you were serving an indeterminate sentence of imprisonment, a cumulative sentence could not be imposed.6
3 Section 86D(7).
4 R v Williams DC Auckland CRI-2014-027-1309, 26 November 2014 at [13].
5 At [15]-[16].
6 At [17]-[18]; Sentencing Act, s 23.
Second strike
[8] Your second strike offence occurred on 11 December 2016, while an inmate at Auckland Prison, you committed the second strike offence. A fellow inmate had come to your cell to get tattoos on his back. He was sitting with his back to you as you did the tattooing. You stopped, picked up a piece of broken fluorescent light tube that you had hidden in the cell, and stabbed him in the neck. You then put him into a choker hold, applying pressure until he lost consciousness. As he lay helpless, you continued to attack him, stomping on his head, using a broom to strike him across the head with such force that the broom broke, and then using the sharp end of the broken broom handle to stab him in the back in the neck. The injuries he sustained were severe and life threatening.
[9] Again, you expressed annoyance, regret and disappointment when told that the victim had survived. You told police you had planned the assault for months, intending to kill the victim as you believed that he had narked on you.
[10] Toogood J adopted a starting point of 11–12 years’ imprisonment.7 He accepted that a two-year uplift to reflect your previous convictions and the fact that you had offended while in prison was appropriate.8 Despite you not displaying the least bit of remorse, your early guilty plea meant you were entitled to a full 25 per cent discount. This meant that your final sentence, were a finite sentence to have been imposed, would have been around 9½–10½ years’ imprisonment.9 However, as he was satisfied that you were likely to commit another “qualifying violent offence” were you to be released from prison at the end of the sentence, Toogood J sentenced you to preventive detention, meaning that you would never be released until you were no longer a threat to community safety, imposing an MPI of 10 years.10
This offending
[11] On 30 July 2019, the victim arrived at your unit at Rimutaka Prison and was placed in the cell next to yours. You offered him a cigarette, a contraband substance.
7 R v Williams [2017] NZHC 427 at [10].
8 At [17].
9 At [18].
10 At [20]-[21].
[12]The following day, your cell was searched, and tobacco found.
[13] You formed the belief that the victim had told Corrections officers that you had tobacco. When the victim returned from work, you went to his cell and threw boiling water over him and then began striking him in the neck area with a sharpened plastic knife.
[14] The victim sustained one stab wound to the back of the head and three to the back of his neck. He also suffered extensive burns to his neck, chest, upper torso and arms.
[15] In his victim impact statement, the victim expresses anger at your actions, stating that he struggles to believe his life was placed in jeopardy over your belief that he had informed on you to the prison authorities, something that he denies. He says that he was in fear for his life at the time of the incident and bears the physical scars and memories, but refuses to let your actions impact on his life on a day-to-day basis.
Manifestly unjust?
[16] I must sentence you to the maximum sentence of 14 years’ imprisonment for this offence and must order that you serve this term without parole, unless that would be manifestly unjust. This requires consideration of the sentence I would have imposed but for the three strikes regime.11
[17] There is no guideline judgment for attempted murder. Instead, the starting point for such offending is often set by reference to the Court of Appeal’s decision of R v Taueki,12 taking into account that the charge of attempted murder involves the more serious state of mind of an intention to take a person’s life.13
[18] Five of the aggravating features listed in Taueki are present in your offending. Namely, the use of extreme violence; that it was premeditated, being in retribution for a perceived wrong; the infliction of serious injury; the use of multiple weapons in the
11 R v Nuku [2018] NZHC 2510 at [12], citing R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [108]-[109].
12 R v Taueki [2005] 3 NZLR 372 (CA).
13 R v Beerens [2018] NZHC 2669 at [20].
form of boiling water and a knife; and that you specifically attacked the victim’s head, stabbing him in the back of his head. This would place your offending within band 3, indicating a starting point of between nine and 14 years’ imprisonment. Another factor that makes your offending worse is that you are in prison, currently on a sentence of preventive detention for similar offending against a fellow prisoner.
[19]There are no mitigating features to your offending.
[20] The most comparable decision is arguably that of Toogood J in sentencing you for your second strike offence, which was also in relation to attempted murder.14 As I have already noted in that decision, it was considered that a starting point of 11–12 years’ imprisonment would have been appropriate. Other analogous cases, in that they involved attempted murders with improvised weapons in a prison setting, are R v Phillips, in which a starting point of 10 years’ imprisonment was adopted,15 and R v Vincent, in which one in the region of 10–12 years would have been found appropriate.16
[21] For these reasons, I would consider the adoption of a starting point of 10–12 year’s imprisonment to be appropriate.
[22] In terms of personal aggravating and mitigating factors, I note that you are now 45 years of age and have some 98 previous convictions, the most serious of which is your 2004 conviction for murder. You have a history of substance abuse from an early age, using alcohol from the age of 10, cannabis not long afterwards, and methamphetamine from 2003. You continued to use substances while in custody.
[23] In sentencing for your second strike offending, the Crown’s submission that an uplift of two years was appropriate to reflect your previous convictions was accepted by Toogood J. I also consider this to be a suitable uplift in the circumstances of this offending, which would bring your sentence to one of 12–14 years’ imprisonment.
14 R v Williams, above n 7.
15 R v Phillips HC Napier CRI-2009-020-4936, 26 November 2010.
16 R v Vincent HC Auckland CRI-2006-044-000285, 2 April 2008.
[24] Although you display no remorse whatsoever for your offending, your early guilty plea means that, but for the three strikes regime, you would have received a full 25 per cent discount, which would have brought your finite sentence, were one to be imposed, down to 9–10½ year’s imprisonment.17 I would have imposed an MPI of two-thirds to denounce your offending and protect the public.
[25] The MPI for the sentence of preventive detention which has already been imposed is due to elapse in 2027, some six years before you would have served the maximum term of imprisonment that could be imposed on the charge of attempted murder. However, I note that Toogood J in his sentencing notes emphasised that you were unlikely to be released at that point given, amongst other things, your stated intention to kill again. Your actions in this most recent incident would appear to indicate that you still hold this intention and that you clearly pose a high risk of violent re-offending, about which I will have more to say shortly. Taking all this into account, I am satisfied that being ineligible for parole for the duration of the mandatory sentence of 14 years’ imprisonment would not be manifestly unjust.
Preventive detention
[26] In the circumstances, it might be seen pointless to impose another sentence of preventive detention. However, the decision whether or not to impose a sentence of preventive detention is one which “must be determined on a principled basis” and “cannot be driven solely by the practical utility of the sentence”.18
[27] Section 87(1) of the Sentencing Act 2012 provides that the purpose of preventive detention is to “protect the community from those who pose a significant and ongoing risk to the safety of its members”. In terms of the criteria to be met before the Court can exercise its discretion to impose preventive detention, the first two are clearly met as you have been convicted of a qualifying violent offence and were over 18 years of age at the time of committing the offence.19 The final criterion to consider is whether you are likely to commit another qualifying violent offence if released.20
17 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
18 T(CA43/2013) v R [2013] NZCA 497 at [26].
19 Sentencing Act, s 87(2)(a) and (b).
20 Section 87(2)(c).
[28] Of your 98 prior convictions, some 16 are for violence.21 As noted above, the most serious being your 2004 conviction for murder. Prior to this, while five of your violence convictions were only for common assault, you also have five convictions for threatening to kill or do grievous bodily harm, which carries a maximum sentence of seven years’ imprisonment.
[29] In 2014 you were convicted of wounding with intent to cause grievous bodily harm, and then in 2017 you were convicted of attempted murder. Both of those convictions arose from offending in the prison environment.
[30] The offending for which you are to be sentenced today is your third attack on a fellow inmate since August 2014. On each occasion, you planned to attack the victim, intended to kill him, and expressed disappointment that he did not die.
[31] The victim impact statement which I have referred to previously speaks of the lasting impact on the victim. Regardless of the offending that brought him to prison, he was entitled to serve his sentence without the threat of lethal attack. The harm caused to the victim and to his family will have been significant.
[32] As to your tendency to commit serious offences in the future, although you were not willing to engage with the writers of the two s 88 health assessor reports, I have before me helpful reports from Drs Jeremy Skipworth and John Jacques, both of whom are psychiatrists.
[33] In writing his report, Dr Skipworth reviewed a number of sources of information, including the s 88 reports completed in 2017, correspondence from the Department of Corrections’ senior psychologist, your criminal history, and sentencing notes from your most recent convictions.
[34]He made the following observations:
Similarities with Mr Williams’ three most recent convictions are noted, suggesting an escalation in the severity and frequency of his violent assaults in recent years:
21 Section 87(4)(a).
a.All involved the violent assault of a fellow prisoner.
b.All were preceded by a period of planning, albeit only 24 hours in the case of the current conviction.
c.In all cases potentially lethal weapons or “shanks” were made to facilitate the attack.
d.On all occasions he targeted the head and neck areas with repeated violent blows with his weapons.
e.He has expressed no remorse for his actions.
f.Mr Williams believed at least two of his recent victims had “narked” to prison officers about him.
g.He appears to have been motivated in part by his desire to be sentenced to life without possibility of parole.
[35] Dr Skipworth expressed the opinion that the 2017 health assessors’ assessment of your risk of committing a further qualifying violent offence had been undertaken following careful assessment of you, utilising “an appropriate range of structured professional judgment tools” and the conclusion reached that you posed a high assessed risk of violent reoffending was supported by the information available at that time. The fact that this most recent offending occurred only two years and four months after you were sentenced to preventive detention is said to support that conclusion.
[36] He noted that you had completed no treatment directed at known areas of risk since those assessments and therefore he had no basis on which to challenge the conclusions reached in 2017 that you posed a high risk of future violent offending.
[37]Dr Skipworth continued:
The identified risk does not appear significantly mitigated by his ongoing imprisonment. He continues to violently assault others in prison with homicidal intent. The assaults are planned, involve use of potentially lethal weapons, he attacks the head and neck areas to cause maximal harm, and he expresses no remorse. He may still be motivated by his previously expressed desire to be sentenced to life without parole.
[38] Having unsuccessfully attempted to interview you at Paremoremo Prison, Dr Jacques similarly based his report on information provided to him by the Court and your psychiatric file. As to the risk you pose, he had this to say:
I have been asked to comment upon the risk and likelihood of the accused committing a further qualifying offence. From my assessment and the available information, it is my opinion that the accused presents a high risk of committing a further qualifying offence. Application of the HCR 20 V3 [a structured risk assessment tool] notes that the accused has risk factors across all domains. The risk of violence is of course, based on his history, particularly high towards other prisoners. The defendant has repeatedly told mental health staff that he has nothing to lose and that he has no intention to leave prison. He has previously said that he would kill other prisoners in order to remain in segregation and has boasted about his offending. He has further been described as a “smiling assassin” on account of his victims being unaware of his murderous thoughts and intent. This information, when combined with the RoC*Rol [another assessment of risk] score of over 88% indicates that the risk of future offending is high.
[39] He recommended that management plans be put in place by Corrections to ensure your safety and the safety of other prisoners and staff.
[40] As to your efforts to address the causes of your offending, Dr Skipworth noted in his report that you had engaged in three assessments with psychologists from the Department of Corrections and had also engaged on one occasion for psychological treatment, however you withdrew before completion. You were set to engage in further psychological treatment with a Department of Corrections psychologist just over a week ago. I am unaware whether that occurred.
[41] Dr Jacques noted that you have been diagnosed with post-traumatic stress disorder and major depressive disorder in the past, but that there were no recent or current concerns about your mental health. You have, however, had no contact with the prison mental health services since 2014. Dr Jacques considered it likely that, since there was no evidence to suggest otherwise, those past mental health difficulties had most likely been adequately treated or resolved.
[42] Neither psychiatrist thought that you suffered from any psychiatric disorder at the time of the offending. However, because of your failure to co-operate with them, that conclusion must involve an element of speculation. Dr Jacques noted that you were due to start individual psychological therapy and considered that this might be a positive sign, suggesting you might have some willingness to engage with support to change your views on yourself, your life and those around you.
[43] The final consideration I must take into account is the principle that a lengthy determinate sentence is preferable, if this provides adequate protection for society. When sentencing you to preventive detention for attempted murder in March 2017, Toogood J stated that:22
The threat of further imprisonment for violent offending obviously imposes no deterrent in your case. It is clear that the community cannot afford the risk of your being released so long as you remain in that present troubled state of mind. You have told your health assessors that your intention is to kill again so that you will be sentenced to life imprisonment without parole. I have to tell you, Mr Williams, you do not need to do that to achieve your objective of remaining incarcerated. The sentence of preventive detention which I find must be imposed means that you will never be released until you are no longer a threat to community safety.
[44] It would seem that little, if anything, has changed since Toogood J made those comments about you.
[45]As Downs J said to the defendant in R v Nuku:23
Preventive detention is the only sentence that may persuade you to take responsibility for your actions, and in turn encourage reform. … [It] may help you come to appreciate violence is not a sustainable way of life, and destructive only, both for your victims and you. A long finite sentence offers no such path; merely more of the same.
[46] I have concluded that your MPI should be 14 years which is the period which would have been imposed under the three strikes regime which, for the reasons that I have already given, I find is not manifestly unjust.
[47] I have available to me a report from Mr Crowley who was appointed as standby counsel when you indicated that you did not wish to have legal representation. He confirms that you do not wish to argue against a sentence of preventive detention with a MPI of 14 years.
[48] I record that you have failed to co-operate with the sentencing process refusing to engage with either of the two psychiatrists or the Provision of Advice to Courts report writer. You also sought to avoid having to attend in Court today but wished to
22 R v Williams, above n 7, at [20(e)].
23 R v Nuku, above n 11, at [38].
remain in Auckland and appear by AVL link. You appear to be attempting to avoid being held publicly accountable for your actions.
[49] Although you may be in prison for the serious crimes you have committed in the past, you are still a member of society with the same rights and obligations as all other members of society. Your fellow prisoners have those same rights and obligations. When you focus only on yourself and violate the rights of others, you will be held accountable for that. This sentencing process is part of the way in which you are held accountable.
[50] While the need for society to be protected from you is an important aspect of the sentencing process, it is not the only one. Everyone is capable of change. In your case, it is unrealistic to expect that change might occur easily or come quickly. It will take a degree of courage on your part beyond anything that you have so far displayed. However, the best prospect for you to become a functioning member of society would seem for you to actively co-operate with the psychiatrists and psychologists who are available to assist you. I would urge you to consider that.
Sentence
[51]Please stand Mr Williams.
[52] Mr Williams, on the charge of attempted murder, I sentence you to preventive detention. You are to serve a minimum term of 14 years’ imprisonment. This sentence is concurrent with your existing ones.
[53] I direct that my sentencing notes are to be provided to the prison authorities along with the s 88 reports, and I recommend to the prison authorities that those reports, and the prior similar reports, be read by the prison authorities on such occasion as they may be considering your security status.
[54]Please stand down.
Churchman J
Solicitors:
Crown Solicitor’s Office, Wellington for Crown cc: B Crowley
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