R v Williams

[2017] NZHC 776

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2016-029-351 [2017] NZHC 776

THE QUEEN

v

HARLEY WILLY WILLIAMS

Hearing:	26 April 2017
Appearances:	NJ Dore for Crown NS Leader for Defendant
Sentence:	26 April 2017

SENTENCING NOTES OF TOOGOOD J

Solicitors:           Crown Solicitor, Whangarei

N S Leader, Auckland

R v WILLIAMS [2017] NZHC 776 [26 April 2017]

[1]      Harley  Willy  Williams:     you  appear  for  sentence  on  two  charges  of aggravated robbery,1  having pleaded guilty after you received a sentence indication on 16 March 2017.

Three strikes warning

[2]      Given that aggravated robbery is a qualifying offence under s 86A of the Sentencing Act 2002, you are subject to what is known as the “three strikes regime”. I must  warn  you  therefore,  that  if  you  are  convicted  of  further  serious  violent offences,  other than  murder,  you  will  be  required  to  serve  the full  sentence of imprisonment you receive without parole or early release.  If you are convicted of murder after this warning, you will receive a life sentence of imprisonment without parole unless the Court decides that that would be manifestly unjust.

[3]      You will be given that warning in more detail in a written notice which

Mr Leader will explain to you.

Sentencing approach

[4]      In approaching the determination of the sentence to be imposed on you I set out first the circumstances of your offending and the effect on the victims. Then I will address the part you played in the offending and set an initial sentence starting point which is appropriate to your culpability or blameworthiness.  I will then make such  adjustments  to  the  sentence  as  are  appropriate  to  reflect  relevant  personal factors before imposing the sentence I determine you should receive.

[5]      As you know from the sentence indications that I gave, I do not propose to treat Mr Nathan in the same way as I intend to treat you. That is because:

(a)       you were involved in the offending in very different ways;

(b)      you are older than Mr Nathan; and

1      Crimes Act 1961, s 235(c); maximum penalty 14 years’ imprisonment.

(c)      unlike you, Mr Nathan has no relevant criminal history and he has shown insight into his role in this offending and he has expressed genuine remorse.

Background facts

[6]      At around 4.00 am on Friday, 25 March 2016, you arrived with companions at a public carpark situated on the foreshore at Ahipara.  The three of you, who were proved to be involved in the offending, got out of your vehicle and approached a parked campervan in which the male and female occupants were spending the night. They were overseas tourists.

[7]      All three of you began to rock the van violently almost to the point of tipping it over.  The victims, who were alarmed, opened the sliding door of the van to see what was happening and the 29 year old male victim yelled out, asking what was going on.  He was immediately punched in the face with a closed fist, a blow which caused a cut to his chin which later required stitches.

[8]      Money was demanded and when the victims denied they had any, the male victim was punched to the ground with multiple blows to the head by more than one of you.  Once he was on the ground he was kicked a number of times.

[9]      The 30 year old female victim put up no resistance at all but she was punched in the face twice, causing her to fall to the ground and bleed heavily from the nose.

[10]     There were continued demands for money.  When none was forthcoming, one of you opened the sliding door of the van and removed a plastic storage drawer containing grocery and food items. That drawer was placed in your vehicle.

[11]     Although the victims called out for help they were not heard in that remote location.  The female victim managed to run away from the scene towards a house approximately  50  to  100  metres  away,  where  she  raised  the  alarm  with  the occupants.  The male also managed to escape and you and your associates returned to your vehicle and drove off.

Victim impact

[12]     Both  victims  were  admitted  to  hospital  for  treatment.    The  male  victim suffered a fractured rib and serious bruising to his face, chin and torso as well as the cut to the chin.  The female victim suffered serious bruising to her face and a black eye.  It is fortunate that despite the attacks being to the heads of your victims, neither of them has suffered long-lasting effects.

[13]     The female victim says she was terrified and shocked by the attack on her partner and her.  The male victim, who was also frightened, was unable to work for a period because of the pain from his injuries.  They observe, justifiably, that you are an embarrassment to yourself, your culture and your country.

Culpability and initial starting point

[14]     For the Crown, Ms Dore submitted that a starting point which reflects the seriousness of the offending would be one of around four and a half years’ imprisonment.  She draws parallels with this case and an example given by the Court of Appeal in the guideline judgment of attacks on taxi drivers.2

[15]     The aggravating features, which suggest some similarity with that type of offending, are:

(a)       There were three of you involved in the attack; (b)     the offending was at night;

(c)       the victims were in a vehicle in which they were living at the time;

(d)the time of night, the relative isolation and the element of surprise meant that the victims were vulnerable to a degree; and

(e)       although there was no weapon involved, actual physical violence was used; while the injuries were not life-threatening, both victims were

attacked to the head and the male victim was struck and kicked repeatedly  while  on  the  ground  to  the  extent  that  he  suffered  a fractured rib.

[16]     Bearing in mind the requirement for consistency in sentencing, I agree with counsel that there are useful parallels in another case involving the violent robbery of tourists near Gisborne.3   In that case, one of the offenders had a knife with which the victims were threatened and I accept that the presence of a knife increased the trauma for the victims and the risk of really serious harm occurring in the confrontation.

[17]     The injuries suffered by the male victim in this case, however, were greater than those suffered by the victims in the Gisborne case.  The victims in both cases were vulnerable and there is here, as there was in that case, a need for deterrence, denunciation and accountability.  This was a concerted attack on tourists enjoying a recognised holiday spot and the damaging effect of this type of violent offending has on New Zealand’s reputation and its tourist business are similar factors in both cases.

[18]     Bearing in mind all of those considerations, I adopt an initial starting point of

four years and three months’ imprisonment as appropriate.

Personal factors

[19]     An aggravating personal feature, Mr Williams, is that you have 32 prior convictions, including for violent offending, the most recent being an assault with intent to injure committed in December 2014 for which you were sentenced in July

2015 to one years’ imprisonment.

[20]     You  cannot  have  been  long  out  of  prison  before  you  committed  these offences. You have also shown disregard for Court orders in the past.

[21]     On the basis of the greater need for deterrence, because you do not appear to have learned from past sentences of imprisonment imposed upon you, I uplift the sentence by three months from the starting point.  That means that, after adjustment,

a  sentence  of  four  and  a  half  years’ imprisonment  is  reached  before  personal

mitigating factors are taken into account.

[22]     You are 23 years’ old but you have already amassed an appalling criminal history for someone of your age and you do not deserve any discount for your relative youth.

[23]     You are of Ngapuhi descent, having been born and raised in the Kaitaia area. You  come  from  a  family  environment  where  there  was  extensive  alcohol  and cannabis use, gang associates, many of whom appear to be whānau, and violence. You left home at a relatively young age and you do not appear to have made much of an  effort  to  obtain  and  stay  in  regular  employment,  mainly  because  of  many sentences of imprisonment or home detention you have received.

[24]     On  the  basis  of  the  circumstances  of  this  offence  and  your  history  of offending, you are assessed as presenting a high risk of reoffending.  It is alarming that you have continued to offend with others while under the influence of alcohol or drugs and I note that alcohol is said to have been a contributing factor in all of your previous offending and in this case, but, of course, that provides no excuse.

Pre-sentence report

[25]     The probation officer, who prepared the pre-sentence report, says that despite offering an apology, you struggled to exhibit genuine remorse and you have shown no insight into your offending.  It is said that in the past you have often attempted to shift the blame to others or to the victims of your offending and the report writer notes that you have attempted to shift the blame to your co-offenders in this instance.

[26]     I have read your letter and I have heard what Mr Leader has had to say about it.  It has come rather too late and your claim that this offending was out of character does not stack up with your most recent sentence of imprisonment for assault with intent to injure.

[27]     But you say you want to address your alcohol problems and I accept that and I understand that you have already completed a course designed to help you with that objective.

[28]     But until you accept full responsibility for your actions, you will not be able to adequately address the causes of your offending, Mr Williams. You will remain at high risk of re-offending and of being sentenced to further imprisonment.  You will become just one of those many people who, I say with great regret, particularly from this part of the country, appear to have a hopeless prospect of simply returning to prison for continued offending.

[29]     I encourage you to make use of the rehabilitative programmes which the probation officer has referred to which will be available to you during your sentence, if you want to avoid that very bleak future.  It is entirely over to you, Mr Williams.

Guilty plea discount

[30]     You are entitled to a discount of eleven months or around 20 per cent for your guilty pleas, and that means that the total effective end sentence I am about to impose will be one of three years and seven months’ imprisonment.

[31]     Although I have said I acknowledge that you have expressed remorse, it is not such that I can give you any further discount beyond that which is inherent in your guilty plea.

[32]     Would you please stand, Mr Williams.

Sentence

[33]     On each of the two charges of aggravated robbery to which you have pleaded guilty, you are sentenced to three years and seven months’ imprisonment.   Those sentences are to be served concurrently.

Withdrawal of other charges

[34]     Because you pleaded guilty to the two charges of aggravated robbery on which you have now been sentenced, the Crown has sought leave to withdraw two unrelated charges of wounding with intent to cause grievous bodily harm which you faced and that relates to an entirely separate incident.

[35]     I  am  satisfied  that  the  withdrawal  of  those  charges  under  s  146  of  the Criminal Procedure Act 2011 is proper.   Leave is granted on the basis that, if the Crown seeks to lay those charges again in the event of further evidence coming to light, it must do so within one calendar year of the date on which they were withdrawn; that is today.

[36]     Please stand down Mr Williams.

……………………………………..

Toogood J