Williams v Police

[2015] NZHC 3285

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2015-470-000011 [2015] NZHC 3285

BETWEEN

BENJAMIN JOSHUA WILLIAMS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	15 December 2015
Counsel:	N M Dutch for Appellant N T C Batts for Respondent
Judgment:	15 December 2015

JUDGMENT OF ASHER J

Solicitors/Counsel: NM Dutch, Tauranga.

Hollister-Jones Lellman, Tauranga.

WILLIAMS v POLICE [2015] NZHC 3285 [15 December 2015]

Introduction

[1]      The appellant Benjamin Williams appeals the sentence imposed upon him in respect of four charges being common assault, receiving a motor vehicle, possession of methamphetamine and breach of parole conditions.

[2]      The facts are straightforward.  In relation to the assault charge, Mr Williams used a female associate to contact the victim and persuade the victim to meet the female associate at a certain place on the basis that he would be repaid some money that  had  been  borrowed.    Mr Williams  then  hid.    When  the  victim  arrived  he approached him and said “do you know who I am?” When the victim said he did not know, Mr Williams punched him on the left side of the face with sufficient force to knock him to the ground.  Once he was on the ground he then punched him to the back of the head.

[3]      The victim suffered bruising to both his forehead and the back of his head, and to the left side of his face.   He was knocked unconscious during the attack. Mr Williams explained the assault by asserting that the victim had slept with his girlfriend while he was in jail.

[4]      In relation to the receiving charge, it seems that the defendant approached the vehicle having known about its presence.  He had a key on him that was similar to the original key, but which did not belong to the vehicle.  He inserted the key and managed to open the driver’s door with it, and then managed to start the car.   He drove the car away.

[5]      The  vehicle  was  worth  approximately  $3,000  and  had,  according  to  the summary of facts, “thousands of dollars worth of tradesmen’s tools”.

[6]      At  one stage during  his  journey he stopped  the  vehicle and  deliberately removed the registration label, and also removed the vehicle number plates.   He replaced the front registration plate with a different plate tied on with wire cable, and put the rear plate in the rear window.  When stopped and asked by the Police as to what he was doing he said that he had been asked by a friend to take the van.  This was why he was charged with receiving and not theft.

[7]      As to the failing to comply with probation conditions, this was a failure to meet a required appointment with his probation officer.

[8]      The methamphetamine charge arose out of Mr Williams telling his probation officer about his problem with drugs and it was this honest admission which led to that charge being laid.

[9]      Judge T R Ingram fixed an end sentence of 21 months’ imprisonment for Mr Williams.  He calculated a starting point on the assault charge of nine months, and gave a two month credit for the guilty plea.  For the receiving charge he fixed an

18 month starting point having regard to Mr Williams record (presumably combining both a starting point and an uplift for previous convictions), he then gave a six month credit for the guilty plea, leaving a net sentence of 12 months’ imprisonment.   In relation to the breach of release conditions, he imposed a sentence of three months’ imprisonment and gave a one month credit for the guilty plea, leaving a net sentence of two months’ imprisonment.   The end total sentence therefore was 21 months’ imprisonment.

[10]     The Judge initially calculated that time of imprisonment as being 19 months and referred to totality but saw no reason to reduce that  amount.   He later by addendum stated that he had made a mistake in arithmetic and increased the end sentence to 21 months’ imprisonment in total.

[11]     Mr Dutch for Mr Williams in his careful and persuasive submissions focused on particular elements of the sentencing.   In summary he did not quarrel with the starting point for the assault charge, but was critical of the amount of discount at approximately 20 per cent.  He submitted that the end sentence should have been six months’ imprisonment.  His primary focus, however, was the starting point for the receiving charge.   He submitted that the 18 month starting point was entirely excessive.  He pointed to the fact that there was no basis for finding the receiving as being part of a commercial operation, that the van was only worth $3,000 and that there was no significant loss to the van owner given the early apprehension of Mr Williams.  He submitted that a starting point of three, or at the very maximum of

six months’ imprisonment would have been appropriate.  He had no quarrel with the one-third deduction.

[12]     In terms of the breach of release conditions, he submitted that the Judge may have included an element of penalty for the drug offending, which in the circumstances was unfair, and that while the end sentence of two months on the breach charge might have been justified, it would have been counterbalanced by a reduction for totality, which the Judge failed to carry out.

[13]     Mr   Dutch   submitted   that   the   appropriate   sentence   was   six   months’ imprisonment  for  the  assault,  plus  a  further  three  months  cumulative  for  the receiving  and  two  months  concurrent  for  failing  to  comply  with  probation conditions, leaving in his submission an end sentence of around eight months’ imprisonment (although arithmetically that is nine months’ imprisonment).

[14]     In reply Mr Batts for the Crown submitted that while the starting point on the receiving count was stern, the starting point on the assault charge was lenient and the starting  point  on  the  breach  of  conditions  charge  appropriate.    He  referred  to Mr Williams’ very bad  record  and  submitted  that  no  deduction  for  totality was appropriate and that the sentence was within the range.

The assault charge

[15]     This was a common assault charge with the maximum sentence is one years’

imprisonment. The original charge was assault with intent to injure.

[16]     In terms of common assaults this was a very serious assault of that type.  It involved premeditation and the sophisticated plan to lure the victim to the place where he could be assaulted.   It involved an attack to the head.   It involved, in relation to the second punch, a vulnerable victim.

[17]     While  the  cases  are  not  directly  relevant,  I have  taken  into  account  the analysis of aggravating factors set out in R v Taueki1 and Nuku v R.2   I make it clear,

1      R v Taueki [2005] 3 NZLR 372 (CA).

2      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

however, that the relevance is only in terms of assessing aggravating factors, rather than in assessing appropriate end sentences, given that the charges in those cases were far more serious.

[18]     Given these three aggravating factors, this assault was in my view right at the top level of culpability.   I would have thought that a starting point of close to

12 months, the highest penalty, would have been appropriate.   I am taking into account s 8(c) of the Sentencing Act 2002 which provides that a Court must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which the penalty is prescribed, unless circumstances relating to the offender make that inappropriate.

[19]     Here the circumstances relating to the offender reinforce the suitability of such a high penalty within the common assault range.  That is because Mr Williams has a history of violent offending.  I hasten to add that it is not of the most serious type of violent offending, and nor is it, on its own, the most serious type of record the Court sees.   It is perhaps useful at this point to set out the helpful Crown summary of his 63 relevant previous convictions, all accumulated between 1999 and the present time, a period of time during which he has spent large periods of time in

prison. The summary is as follows with violence convictions added:3

(a)       Burglary x 22 (1999, 2000, 2002, 2004, 2005, 2011) (b)           Receiving x 3 (2001, 2005, 2011)

(c)       Unlawfully take/convert motor vehicle/bike x 12 (1999, 2000, 2001,

2003, 2004, 2006, 2011)

(d)      Theft ex car/motor vehicle x 13 (1999, 2000, 2001, 2002, 2004, 2011) (e)     Unlawfully gets into vehicle x 2 (2000, 2005)

(f)       Theft/attempted theft x 4 (1999, 2000, 2011)

3      This table was not objected to by Mr Dutch.

(g)      Shoplifting x 7 (1999, 2004, 2005, 2011)

(h)      Assault or assault-related counts x 8 (2000, 2002, 2005, 2007, 2012) [20]     Thus in conclusion on this sentence (which as I have stated was not the focus

of Mr Dutch’s submissions) a starting point of up to 12 months would have been appropriate.   Twenty per cent for the guilty plea can be seen as appropriate particularly given that Mr Williams first appeared on the assault charge on 11 May

2015 and did not  enter his plea of  guilty until 6 August 2015.   A discount of

20 per cent for a guilty plea would have left an available sentence of 10 months’

imprisonment.

Receiving charge

[21]    I bear in mind that the maximum penalty for receiving is seven years’ imprisonment.  Mr Dutch is right when he says that this is far from the most serious type of receiving offending.  However, I do not accept his submission that it does not show elements of commerciality.  The change of the registration sticker and number plates do indicate a level of commerciality, as does the use of a key that was not the car key but which nevertheless opened the car.

[22]     I also accept as Mr Dutch says that the victim has not suffered any severe damage to the vehicle in question and that the period of the receiving was short.  The value of the item being a $3,000  car  with some thousands of dollars worth of equipment inside place it within the moderate category of seriousness.

[23]     In these circumstances in my view a starting point of around nine months’

imprisonment would have been appropriate.

[24]     There was then the question of uplift for Mr Williams’ extremely bad history

of dishonesty offending.   It includes three counts of receiving in 2001, 2005 and

2011.  This offending took place shortly after Mr Williams was released from prison in February 2015.  He was assessed by the probation officer as having a very high risk of further offending considering the recidivist nature of his criminal history.  He

was assessed as having a low ability to comply with any further community-based sentences.

[25]     In all the circumstances a significant uplift for past offending was required. This is not so much to  punish Mr Williams who, given the  information in the probation report, has a drug problem and might on a personal level deserve some sympathy.  It is because of the danger he poses to the community and the need to protect the community from him.   He seems to be quite unable to learn from the penalties that are imposed upon him, and the admonishments he undoubtedly has repeatedly received throughout his life.

[26]     Accordingly a six month uplift at least would have been appropriate.  With that I still reach a figure somewhat lower than that of the Judge of 15 months’ imprisonment, rather than the 18 months he chose.  However, there is the additional factor of this offending having been committed on bail, and that in itself could warrant an uplift of another month or so.

Breach of parole conditions

[27]     In my interpretation of Judge Ingram’s decision he did not intend to impose any penalty in relation to the methamphetamine offending.

[28]     Mr Williams sadly has a history of breaching parole  conditions and bail conditions.  In all the circumstances, taking into account that past record, the way in which the Judge dealt with this by imposing a three month starting point, reduced by a month for the guilty plea, was appropriate.

Conclusion

[29]     Thus,  my  arithmetic  having  heard  Mr  Dutch’s  submissions  is  somewhat different from that of Judge Ingram.  I am higher than the Judge on the assault count (nine months rather than seven), lower on the receiving count (16 months rather than

18 months), and the same on breach of parole (three months).  That leaves a starting point of 28 months before the consideration of the guilty plea and totality.  If there is

a  20  per  cent  deduction  on  the  28  months,  the  net  sentence  is  approximately

22 months, still a month higher than that ultimately fixed by the Judge.

[30]     I am conscious of Mr Dutch’s criticism of the Judge’s refusal to take into account totality, and the fact that he might possibly have overlooked that when he corrected his arithmetical error.  However, I do not think any significant deduction was required for totality.  This is really because of Mr Williams’ appalling record, and the fact that this offending was committed shortly after he was released from prison and while he was on bail.  A totality deduction is not obligatory.  The Court has to stand back and take all matters into account.  Is this sentence unduly crushing? When considered against the background of Mr Williams’ recidivism, 21 months’ imprisonment is in my opinion the appropriate sentence.

Result

[31]     The appeal is dismissed.

……………………………..

Asher J