R v Williams
[2015] NZHC 2680
•30 October 2015
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2015-019-001186 [2015] NZHC 2680
THE QUEEN
v
MANA WILLIAMS
Hearing: 30 October 2015 Appearances:
R Douch for Crown
S Green for DefendantJudgment:
30 October 2015
SENTENCING NOTES OF HINTON J
Solicitors:
Crown Solicitor, Hamilton
S Green, Auckland
R v WILLIAMS [2015] NZHC 2680 [30 October 2015]
Offences
[1] You can remain seated. I will ask you to stand when I get to the end.
[2] Mr Williams, you pleaded guilty to one charge of threatening to kill and one of possessing an offensive weapon. These offences carry a maximum penalty of seven years and three years’ imprisonment, respectively.
[3] You were found not guilty at trial of wounding with intent to cause grievous bodily harm. Your co-defendant, Mr Te Tomo was found guilty of the murder of Michael Thompson.
Facts
[4] At about 5 pm on 20 February 2015, a confrontation took place on Norrie Street here in Hamilton. You were at the address with Mr Te Tomo. Mr Thompson and his friend Mr Apanui drove to Norrie Street after finishing work for the day. You were 17 at the time. Mr Thompson was in his late 20’s. Mr Te Tomo is affiliated to the Mongrel Mob gang. You have some connection to that gang. Mr Thompson was affiliated with the Black Power gang.
[5] Mr Thompson directed an inflammatory comment towards you. You responded by smashing the front passenger side window of Mr Apanui’s vehicle. The two men in the vehicle then got out. Mr Apanui threw a bottle at your head. It seems that both sides were throwing a recycling bin and bricks at each other.
[6] Mr Thompson and Mr Apanui then chased you back into the house. You came back shortly afterwards with Mr Te Tomo carrying ornamental swords. You threw a sword or swords in the direction of Mr Apanui and Mr Thompson. While in possession of a sword, you threatened to kill them. The fight then escalated, culminating in Mr Te Tomo shooting Mr Thompson in the face.
Personal circumstances
[7] You have no prior convictions. You were raised in a gang environment and many of your family are gang members. You admit your affiliation with the Mighty Dog Soldiers. You told the pre-sentence report writer that you were neither a patched member nor a prospect of the Mongrel Mob. You said you have no desire to become a prospect or a patched member and claim to have disassociated yourself from the gang.
[8] Regarding the offending, you appeared to the report writer to be genuinely remorseful for your part and you expressed your sympathy for Mr Thompson and his family. You stated you wished you had considered other options. However, based on the seriousness of the offending, your gang associations and propensity for violence, you were assessed by the report writer as posing a medium risk of reoffending and a medium risk of harm to others.
[9] You are currently in a positive relationship and attribute this relationship as your reason for not seeking a patch with the gang. I hope you have some other reasons as well. You currently do not have a harmful pattern of alcohol or drug use but use cannabis on an intermittent basis.
[10] The report writer noted that you have been subject to a condition not to associate with members of the Mongrel Mob while on EM bail. You have been compliant with this condition and are willing to remain subject to it. Given your compliance with EM bail, your ability to comply with a community based sentence is assessed as high. The report writer recommended a sentence of home detention with special conditions to attend departmental rehabilitative programmes, to complete appropriate treatment and counselling and to not associate with Mongrel Mob members.
Submissions
Defence submissions
[11] Ms Green submits that an appropriate starting point is 12 months’ imprisonment. She highlights the unique features of this case as compared to typical gang fights, namely the spontaneity of incident, its short duration, the age difference between the two groups and the fact that the incident took place at your home. She says the two main mitigating features are that Mr Thompson and Mr Apanui advanced onto the property and did not leave. Secondly, you received a wound to your head as a result of Mr Apanui’s actions.
[12] Ms Green submits that the personal mitigating factors are the guilty pleas, your youth and remorse. She says the overall discount could be in the range of 50 per cent. She points out you have been on EM bail for six months and that a short sentence of home detention would enable you to secure employment and/or to resume your studies.
Crown submissions
[13] Mr Douch accepts that 12 months’ imprisonment as a starting point is within the range available.1 He points out, relevantly, that it was you who not only instigated the conflict with Mr Thompson and Mr Apanui but also prolonged it by returning with weapons. He says it is clear you intended Mr Thompson and Mr Apanui to be intimidated and to take the threats seriously. Further, the use of a weapon coupled with threats to kill heightens the potential for situations to get out of hand, exactly as this case illustrates.
[14] Turning to mitigating factors, Mr Douch does not accept that any guilty plea discount should accrue, as the pleas were entered at the last possible minute. The trial was prepared on the basis that these charges were in issue. He accepts that discounts can be awarded for remorse and youth, but he submits that youth cannot excuse your blatantly hostile conduct. He suggests an overall discount of 15 per
cent, resulting in an end sentence of ten months’ imprisonment. Mr Douch accepts
1 Citing Rudd v R [2015] NZHC 2399 and McCleary v Police [2014] NZHC 1581.
that you are suitable for home detention and proposes an end sentence of five
months’ home detention.
Sentencing approach
[15] There is a three-stage approach to sentencing. First, the appropriate starting point is set; secondly, allowance for personal aggravating and mitigating factors, and finally a discount for a guilty plea.2
[16] To determine an appropriate sentence, I have to take into account the relevant purposes provided for in the Sentencing Act 2002 which include: the need to hold you accountable for the harm done to the community by your offending; to promote a sense of responsibility in you; to provide for the interests of the victims, and to denounce and deter your conduct; finally, to protect the community and assist in your rehabilitation.
Discussion
[17] As the circumstances of cases involving threats to kill and the possession of offensive weapons vary widely, there is no guideline or tariff judgment for these offences.3
[18] Key factors in assessing the culpability of offending involving threats to kill include premeditation, the nature and frequency of the threats, whether the threat involved or threatened the use of a weapon, the ability and willingness of the offender to carry out the threat, and the level of harm, distress or fear caused to the victim.4
[19] Ms Green referred to Rudd v R5 in her submissions. In that case, Mr Rudd
called the victim and twice said “I’m going to come over and kill you”. The whole
2 See Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607 and R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23.
3 See Burchell v R [2010] NZCA 314 at [25] for the threatening to kill offence.
4 See for example, Faaleaga v R [2011] NZCA 495 at [11]; Allan v Police HC Dunedin CRI-2011-
412-37, 1 December 2011 at [29], endorsed in Simon v R [2014] NZCA 207 at [22].
5 Rudd v R [2015] NZHC 2399.
period of pursuing and planning the threat to kill had lasted five days. On appeal, Asher J upheld a starting point of 18 months’ imprisonment.6
[20] Asher J noted that starting points for threatening to kill range from four months to three years’ imprisonment where weapons have been used and where threats have been extreme and causative of great fear.7
[21] I propose to adopt a starting point that reflects the totality of the offending, as the possession of the swords was part and parcel of the threat to kill. In this case, I accept that the threats made by you were not premeditated. The offending was short- lived. You intended to scare or intimidate Mr Thompson and Mr Apanui, primarily to get them off the property. There was no willingness on your part to carry out the threat to kill. There is no evidence that Mr Thompson and Mr Apanui took the threat seriously and were genuinely fearful. However, by bringing the swords onto the scene, there was the potential that serious bodily harm could have been inflicted. In this case, what you did escalated the situation which resulted in Mr Thompson’s death. Overall, I see the offending as less serious than Rudd v R and I propose to adopt a starting point of 12 months’ imprisonment.
[22] There are a number of relevant personal mitigating factors. You were only 17 at the time of the offending and a discount for youth is clearly warranted.8
Churchward is authority that young people may be more impulsive than adults and have a greater capacity for rehabilitation. I note that you are a first time offender. Further, you show a degree of remorse. These factors warrant a total discount of 20 per cent. This brings the sentence down to 9.6 months.
[23] Lastly, there is the guilty plea, albeit very late in the piece. It deserves some small recognition and I propose giving an additional five per cent discount, bringing the sentence down to nine months.
[24] Both counsel agree that home detention is appropriate. Consistent with the usual approach that the period of imprisonment is halved, I consider 4.5 months’
6 At [24].
7 At [20].
8 See Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].
home detention to be the least restrictive sentence available in the circumstances.
That is very close to the Crown’s submission.
Result
[25] Stand please, Mr Williams.
[26] On the charge of threatening to kill and the charge of possession of an offensive weapon, you are sentenced to 4.5 months’ home detention. The conditions are as set out in the pre-sentence report.
[27] The sentences are to be served concurrently.
[28] I want to conclude by saying, picking up on Mr Douch’s comments at the end of his submissions to you Mr Williams: that you do need to understand, and I suspect you do, that you have been very fortunate in the outcome from the events of
20 February 2015. It could have been a lot worse for you. You were really the instigator. You are clearly a young man at risk. Learn from and do not gloat over the outcome of this case. Do not end up back here again.
[29] Stand down please.
Hinton J
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