R v Williams

[2019] NZHC 2630

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 2630

THE QUEEN

v

STEPHEN ROGER WILLIAMS

On the papers:

Counsel:

G J Burston for Crown S R Williams in person

B Crowley as standby counsel

Judgment:

15 October 2019

JUDGMENT OF CHURCHMAN J

[1]    I have declined the application by the defendant, Mr Williams to attend his sentencing for attempted murder via AVL from Paremoremo Prison in Auckland. Here follow the reasons.

[2]    Submissions for the Crown were based on the applicable provision being s 8 of the Courts (Remote Participation) Act 2010 (the Act), which provides for the use of AVL in sentencing matters. Section s 8(2) states that AVL may be used for the appearance of a defendant in a sentencing matter if the defendant is in custody and the Court determines that the use of AVL is not contrary to the interests of justice.

[3]    However, the Crown have indicated they will be applying for preventive detention and psychiatrist reports have accordingly been ordered. Therefore, the

R v WILLIAMS [2019] NZHC 2630 [15 October 2019]

hearing qualifies as a “criminal substantive matter”, which is defined in the Act as “any matter, in a criminal proceeding, in respect of which evidence is to be called”.1 Thus, s 9 is the applicable section, which is more prescriptive than s 8 as to the circumstances in which AVL can be used, providing as follows:

9        Use of audio-visual links in criminal substantive matters

(1)AVL must not be used in any criminal substantive matter for the appearance of a participant unless a judicial officer determines to allow its use for the appearance of that participant in the proceeding—

(a)in accordance with the criteria in sections 5 and 6; and

(b)taking into account whether the parties to the proceeding consent to the use.

(2)Despite subsection (1), AVL must not be used for the appearance of the defendant in a trial that determines his or her guilt or innocence unless the defendant consents to that use.

[4]    Both ss 8 and 9 require the Court to consider the factors set out in ss 5 and 6 of the Act. Those sections provide as follows:

5General criteria for allowing use of audio-visual links

A judicial officer or Registrar must consider the following criteria when he or she is making a determination under this Act whether or not to allow the use of AVL for the appearance of any participant in a proceeding:

(a)the nature of the proceeding:

(b)the availability and quality of the technology that is to be used:

(c)the potential impact of the use of the technology on the effective maintenance of the rights of other parties to the proceeding, including—

(i)the ability to assess the credibility of witnesses and the reliability of evidence presented to the court; and

(ii)the level of contact with other participants:

(d)any other relevant matters.

6Additional criteria for allowing use of audio-visual links in criminal proceedings

A judicial officer or Registrar must also consider, when he or she is required to determine under this Act whether or not to allow the use of AVL for the

1      Courts (Remote Participation) Act 2010, s 3.

appearance of any participant in a criminal proceeding, the potential impact of the use of the technology on the effective maintenance of the right of the defendant to a fair trial, and on his or her rights associated with the hearing, and, in particular,—

(a)the ability of the defendant—

(i)to comprehend the proceedings; and

(ii)to participate effectively in the conduct of his or her defence; and

(iii)to consult and instruct counsel privately; and

(iv)to access relevant evidence; and

(v)to examine the witnesses for the prosecution; and

(b)the level of contact the defendant has with other participants; and

(c)any adverse impression that may arise through the defendant or any other participant appearing by means of AVL, and whether that adverse impression may be mitigated.

[5]    Mr Williams is currently serving a life sentence for the murder of his step- daughter in 2003. He is also serving a concurrent sentence of preventive detention for attempting to murder a fellow prison inmate in 2016.

[6]    Mr Williams is scheduled to appear for sentence having pleaded guilty to a further charge of attempting to murder another fellow prison inmate in July of this year. This is a stage 3 offence as defined in s 86A of the Sentencing Act 2002. As such, s 86D of that Act applies in relation to this sentencing. Section 86D(7) preserves the Court’s power to impose a sentence of preventive detention, the effect of which would be that, if a sentence of preventive detention were to be imposed, then the Court would have to impose a minimum period of imprisonment (MPI) of not  less than   14 years, unless satisfied that the imposition of that MPI would be manifestly unjust. Counsel for the Crown has indicated that the Crown will be seeking the imposition of a further sentence of preventive detention under s 87 of the Sentencing Act 2002. If, however, the Court did not impose preventive detention, then the effect of ss 86D(2) and (3) is that the offender must be sentenced to the maximum term of 14 years’ imprisonment to be served without parole, unless to serve the sentence without parole would be manifestly unjust.

[7]    I acknowledge that the Court has a discretion as to whether or not a defendant is required to be present in Court for sentencing in these circumstances. The cases dealing with the relevant sections of the Act have mostly considered such applications made by the Crown rather than the defendant, and so in exercising this discretion the Court has been required to consider whether an appearance via AVL would negatively impact on the defendant’s ability to participate in the proceedings. Obviously, the circumstances here are somewhat different as it is the defendant pursuing the application, so arguably he can be taken as having considered the implications and to have waived his rights as such. However, there is the added complication here in that Mr Williams is self-represented, although he will have Mr Crowley, as standby counsel, available for consultation if required.

[8]    That being said, I have no concerns regarding the availability and quality of the technology to be used. However, I do have a concern that appearing by AVL would impact negatively on Mr Williams’ ability to participate. It will be difficult for him to communicate privately with Mr Crowley during the course of the sentencing. However, it is the nature of the proceedings and the likely outcome that are highly relevant. The charge is one of attempted murder. Mr Williams already has one such conviction as well as a 2014 conviction for wounding with intent to cause grievous bodily harm (also on a fellow prisoner), along with the 2004 murder conviction and five prior convictions for threatening to kill.

[9]    Mr Williams’ history and the circumstances of the present crime, put it amongst the most serious types of violent offending to come before the Court.

[10]   Given the serious nature of this proceeding this is a case in which the interests of justice require that Mr Williams be present in Court in Wellington, the Court closest to Rimutaka prison where his crime was committed. This is so that justice can not only be done, but can be seen to be done. There is legitimate media interest in this offence and the outcome of the sentencing process. It is also possible that the public interest in offending by Mr Williams will be sufficiently high that members of the public will attend the sentencing.

[11]   Mr Williams himself also appears to want to disengage from the sentencing process. In the hearing on 9 September 2019, when the Crown advised Mallon J that preventive detention was being sought, Mr Williams indicated that he had no intention of co-operating with the two health assessors that the Court was obliged to obtain reports from. Mr Williams also indicated that he did not intend to co-operate with the preparation of the usual pre-sentence report.

[12]   A PAC report has just been received which indicates that Mr Williams failed to engage with the writer of that report.

[13]   The sentencing process is one way of holding a defendant publicly accountable for their actions. Mr Williams request that he be permitted not to appear in person but by AVL link from Paremoremo Prison could be seen as an aspect of him attempting to avoid having to participate in the sentencing process and to be held publicly accountable. It is not in the interests of justice for the Court to encourage such behaviour.

[14]   It is for these reasons that I have declined Mr Williams’ application to participate in the sentencing by AVL.

Churchman J

Solicitors:
Crown Solicitor’s Office, Wellington

cc:S R Williams, Paremoremo Prison, Auckland B Crowley (as standby counsel for defendant)