The Queen v Te Iwa Heiwari Williams
[2002] NZCA 2
•20 March 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA220/01 |
THE QUEEN
V
TE IWA HEIWARI WILLIAMS
| Hearing: | 21 and 28 February 2002 |
| Coram: | Anderson J Williams J Baragwanath J |
| Appearances: | J H Wiles for Appellant K Raftery for Crown |
| Judgment: | 20 March 2002 |
| JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J. |
In Whangarei District Court on 20 June 2001 the appellant, Mr Williams, was sentenced on the 11 charges set out in the following table, he having pleaded guilty to them prior to depositions. He has appealed to this Court against the sentences imposed. The charges and sentences imposed were :
Charge
Sentence
On 6 November 2000 assault with intent to injure on a Mr Stoneham with a Mr Hoani
Imprisonment 2years
On 6 November 2000 burglary of 17 Lake Road, Kaitaia
Imprisonment 3years
On 7 November 2000 aggravated burglary of the Stoneham residence with Messrs Hancy and Hoani
Imprisonment 8 years
On 7 November 2000 aggravated robbery of Mr Stoneham with Messrs Hancy and Hoani
Imprisonment 8 years
On 7 November 2000 demanding money from Mr Stoneham and a Ms Fraser with menaces with Mr Hancy (2 counts)
Imprisonment 5 years on each
On 7 November 2000 burglary of 17 Lake Road, Kaitaia, with Mr Hancy
Imprisonment 3 years
On 1 December 2000 unlawfully on the premises of Te Runanga o Te Rarawa in South Road, Kaitaia
Imprisonment 1 month
On 1 December 2000 unlawful taking of a motor vehicle and attempted unlawful taking of a motor vehicle from the premises of Te Runanga o Te Rarawa, South Road, Kaitaia
Imprisonment 12 months and 18 months respectively
On 1 December 2000 driving whilst forbidden
Convicted and discharged
The offences were committed during the period of suspension of a nine month term of imprisonment imposed on Mr Williams earlier. That suspension was cancelled and the nine month term was imposed cumulatively on 20 June with the result that Mr Williams was sentenced to imprisonment for a total of 8 years 9 months.
Mr Williams’ appeal was particularly directed at the eight year term imposed on the aggravated burglary and aggravated robbery convictions. It was submitted on his behalf that the sentence was excessive in that it failed to give appropriate allowance for his early guilty pleas and took insufficient account of his personal position and the circumstances which, he said, led him into some of the offending.
In helpful submissions, Mr Wiles, counsel for the appellant, on the first day of hearing raised a suggested disparity between the sentences imposed on Mr Williams and those imposed on his co-offenders. The appeal was adjourned for a week to enable additional material concerning the co-offenders to be put before the Court.
The facts, as appeared from an agreed amended summary put before the sentencing Judge, showed that on 6 November 2000 Messrs Williams and Hoani went to 17 Lake Road, Kaitaia, kicked in the door and approached Mr Stoneham. He was punched and kicked by Mr Hoani, following which Mr Williams grabbed him by the nose. Threats were made before the pair left. That gave rise to the charges of burglary and assault with intent to injure.
Next day Messrs Williams, Hoani and Hancy returned to 17 Lake Road, Mr Williams being armed with a club some 50cm in length, with which he struck Mr Stoneham about the head and upper body approximately 5 times. Mr Hoani also punched Mr Stoneham. These assaults took place at the “rear of the address”. Messrs Hoani and Williams took a small amount of cash and a wallet from Mr Stoneham. Mr Williams then unfolded a knife hidden in his boot and pointed it at a Mr Fraser, another occupant of the premises, and threatened him before Mr Hancy called him away. Mr Williams then punched Mr Fraser and Messrs Williams and Hoani threatened Mr Stoneham that if he did not hand over his next benefit payment they would come and take it. The three left the property taking a television set, chainsaw and other items. This incident gave rise to the aggravated burglary, aggravated robbery and one of the demanding with menaces charges.
Later the same day Messrs Williams and Hancy returned to 17 Lake Road, gained entry, and again abused the occupants including a Ms Fraser. They demanded that she hand over her next benefit payment and left taking another television set saying it would be returned if Mr Fraser paid them $100. That incident gave rise to the burglary and the second demanding with menaces count.
On 1 December 2000 Mr Williams gained access to the premises of Te Runanga O Te Rarawa in South Road, Kaitaia, entered a vehicle owned by the Runanga and started it but could not drive it away because of a locked gate. He then took another motor vehicle parked outside the premises and drove away. This incident gave rise to the charge of being unlawfully in an enclosed yard and the charges of attempted and unlawful taking of motor vehicles.
The last count of driving whilst forbidden arose following his being ordered by the Police on 11 October 2000 not to drive when he was found in a vehicle despite having no driver’s licence. The Police saw him driving the converted motor vehicle on 1 December.
Several additional factual aspects warrant noting.
The first is that, to the probation officer, Mr Williams said that the parties’ original visit to 17 Lake Road was because his brother - Mr Hoani despite the different surnames - told him that there had been an altercation with Mr Stoneham at the address, as the result of which Mr Hoani’s jacket and wallet were taken. His girlfriend was still there. He wanted to return to uplift his property and pick up his girlfriend. Mr Williams acknowledged taking over the situation when they arrived at the address. The offences that day occurring during the course of his trying to recover his brother’s jacket and his girlfriend’s handbag.
He told the probation officer that the 7 November visit arose because his brother’s girlfriend told them that morning that Mr Stoneham had sexually harassed her the previous evening. As a result he, Mr Williams, high on drugs, angry and lacking sleep decided to return to the address and confront Mr Stoneham with the girlfriend’s information. Of some importance in this appeal, Mr Williams told the probation officer that Mr Hancy, a cousin of Mr Williams, advised them to call the Police but that he, Mr Williams, refused and went to the address armed with the club which he had been carrying for a number of days and the knife.
Mr Williams applied for leave to adduce further evidence from Mr Hoani’s partner which went some way to confirming Mr Williams’ statements to the probation officer. The application for leave was declined since the matters of the alleged theft of the jacket and wallet and the sexual assault had been before the sentencing Judge. They were referred to in his notes on sentencing and in Mr Williams’ notice of appeal. The appeal accordingly proceeded on the basis that incidents of the type alleged lay in the background to the appellant’s offending.
Those incidents were also referred to in a very articulate letter written by the appellant and placed before us on appeal. Mr Williams’ schooling ceased when he was about 11 at intermediate school and he lived thereafter on the street, abusing drugs, and prospecting for a number of years for Black Power until he became a patched member in about 1996. Even so, the letter was a fluent, even literate, document expressing Mr Williams’ remorse, his withdrawal from Black Power at the end of 1999 and his wish to pursue tertiary education.
After reviewing the facts and noting the impact on Mr Williams’ position of the home invasion legislation and the fact that the co-offenders were yet to be dealt with, the sentencing Judge reviewed the victim impact statements and psychiatric and pre-sentence reports before turning to the appropriate sentence. Guided by R v Mako [2000] 2 NZLR 170 he regarded as aggravating factors the planning and preparation, the return visits, the number of participants and weapons and their use, the victims’ vulnerability and the impact on them, the theft of property, the multiple charges and the repeated threats and intimidation made the more dangerous through drug-taking, the fact that this was serious violence, the fact that at the time of offending Mr Williams was subject to a suspended term of imprisonment, the need to protect the public, and the probation officer’s assessment that he was at high risk of re-offending.. Additional factors included the increase in maximum sentences arising from the home invasion legislation. All those factors led him to conclude that a starting point “in the vicinity of 10 years or a little more”, was warranted on the major charges.
Mitigating features included the early guilty pleas and the fact that violence was largely absent from the previous convictions. The Judge considered Mr Williams’ personal circumstances including voluntary admission to a drug and alcohol centre and his dissociation from the gang in reaching his decision that the appropriate sentence was one of 8 years’ imprisonment.
In this Court, Mr Wiles, who was not counsel at sentencing, emphasised the factual differences between Mako and this case and submitted that the Judge was in error in taking account of what he saw as planning and preparation. Mr Wiles submitted that this was a spontaneous reaction seeking revenge, justified in the appellant’s eyes by the factual circumstances mentioned earlier in this judgment, and drew attention to the appellant’s statement to the probation officer that he tried to stop Mr Hoani’s actions on 6 November to the point of assaulting him to make him desist. He submitted that this was really a confrontation between two criminal groups where Mr Williams was in attendance to protect his brother and cousin from harm. He also drew attention to the fact that, unlike many aggravated robberies or aggravated burglaries, there was no attempt to conceal the group’s identities; they being known to the Stoneham household. He submitted that all the incidents relating to Lake Road should be seen as a continuous offence rather than a series of separate occurrences. As a result, Mr Wiles submitted, this was a home invasion at the lower end of the scale and that a 10 year starting point for the aggravated burglary and aggravated robbery charges was too high.
For the Crown, Mr Raftery submitted that the appellant’s actions fell directly within the guidelines appearing in Mako (at 177-185 para 25-70) and particularly drew attention to the variations in circumstances giving rise to such offences to which this Court referred at para 34 (p 179). A 10 year starting point under Mako (at para 58 p 183) was, Mr Raftery submitted, appropriate.
As mentioned, the hearing was adjourned to enable us to receive material concerning the sentencing of the co-offenders.
At their sentencing on 21 August 2001 after depositions, the charges faced and sentences opposed on the co-offenders were as follows :
Mr Hancy:2 counts of unlawful entry (1 year’s imprisonment on each); 2 counts of demanding with menaces on Mr Stoneham and Ms Fraser (2½ years imprisonment on each) all such sentences being concurrent; 1 count of receiving (6 months imprisonment cumulative)
Mr Hoani:burglary (6 months imprisonment); 2 counts of assault with intent to injure (18 months imprisonment on each ); and demanding with menaces (3 years imprisonment).
Mr Hancy refused to participate in the Risk Assessment process and was sufficiently intimidating for prison staff to be present during conversations with the probation officer. An earlier pre-sentence report showed some 48 previous convictions, many involving violence, a lack of remorse, long-term and continuing membership of the Mongrel Mob, offending on parole and the imposition of a wide range of sentences. He had been imprisoned for 4½ years in late 1997 for aggravated robbery.
Mr Hoani had rather fewer previous convictions though two involved violence. He, too, was assessed at being at high risk of re-offending. He also claimed that his actions which led to the charges to which he pleaded guilty stemmed from the treatment of his girlfriend.
The different sentencing Judge on that occasion accepted that Mr Williams was the principal offender in relation to all these matters. He accepted that Mr Hancy’s offending occurred before weapons were used and that his previous convictions were largely for minor matters. He reviewed Mr Hancy’s numerous and serious previous convictions, noted his statement that he had withdrawn from his gang affiliation and then took the view in relation to both that (para 11 p 4) there is
“certainly room for argument that the strict application of the home invasion provisions do not apply”
because the offences were said to have occurred “in about or around the house”. With respect to the sentencing Judge, on the facts put forward in Mr Williams’ case, it is a little difficult to follow that remark.
The Judge then imposed the sentences earlier mentioned, discounting a starting point of 3½ years for Mr Hoani’s relative youth and lack of previous offending on the demanding with menaces. He discounted Mr Hancy’s starting point of 3 years on the same count to 2½ years imprisonment after balancing his previous convictions and age against his reduced culpability in the offending and the evidence that he had tried to persuade Mr Williams to desist.
In our view, the sentencing Judge was right to conclude that Mr Williams’ case exhibited a number of the criteria discussed by this Court in Mako (at para 58 p 183). Factors bearing on the aggravated burglary and aggravated robbery charges include the repetitious nature of the offending, the planning and premeditation, the refusal to refrain from the contemplated conduct when it was suggested by a co-offender, the secretion of not one but two weapons and their use or presentation, the repeated threats and intimidation, the theft of property and the numbers of persons involved. Those factors must be seen against the background of Mr Williams’ previous convictions, many involving violence, and his personal history.
As to the matters raised by Mr Williams as explaining the parties’ return to 17 Lake Road on 7 November, whilst it may have been the case that Mr Stoneham’s conduct towards Mr Hoani and his girlfriend was not blameless, that provided no justification for the parties to take the law into their own hands rather than involving the Police; still less does it explain the offences against Mr and Ms Fraser.
The sentencing Judge was accordingly right to adopt a starting point in the vicinity of 10 years imprisonment.
In our view, the sentencing Judge was also correct on the agreed statement of facts before him to regard the aggravated burglary and robbery charges as involving home invasion thus invoking the Crimes Act 1961 s 17A and 17C, notwithstanding that the Judge who sentenced Messrs Hoani and Hancy appears to have been dubious on the statement of facts before him – a copy of which was not before us – that those sections applied. It appears from his remarks that he may have been persuaded that the actions which gave rise to the demanding with menaces counts did not occur within the curtilege of the 17 Lake Road dwellinghouse thus concluding that home invasion did not apply as a result of infelicities in draftsmanship in the definitions in s 17A(1). Whatever may have been the correct position so far as that Judge was concerned, it is noted that the most serious offences on which he was sentencing Messrs Hoani and Hancy were charges of demanding with menaces where the maximum terms for charges involving home invasion were 10 years under s 17B (2) not aggravated robbery where the maximum term under s 17C (1) is 19 years.
In the end, notwithstanding the matters raised by Mr Williams in his letter to the Court, we are not persuaded that the sentencing Judge was in error either in the starting point which he adopted or in the express discount of 25% allowed for Mr Williams’ pleas of guilty. Nor are we persuaded that the disparity in sentence between the terms imposed on Mr Williams and those imposed on Messrs Hoani and Hancy is such as to satisfy the tests enunciated in R v Lawson [1982] 2 NZLR 219, 223 (or described in Hall Sentencing App II 6.2 p J/323) thus leading this Court to reduce the term imposed on the appellant. The differences are explicable by the lesser counts on which Messrs Hoani and Hancy were sentenced, the possible error over the application of the home invasion provisions and differences in their previous convictions and culpability for the offences.
Mr Williams’ appeal against sentence is accordingly dismissed. It is to be hoped that he acts on his stated determination to reform himself whilst in prison and improve his education whilst there.
Solicitors
Crown Solicitor, Auckland
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