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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 3285
Decision Date: 15 December 2015

CaseChat Overview and Summary

Benjamin Joshua Williams appealed against the sentence imposed upon him for four charges: common assault, receiving a motor vehicle, possession of methamphetamine, and breach of parole conditions. The High Court of New Zealand was tasked with determining whether the sentence imposed by Judge T R Ingram was appropriate. The appellant's counsel, Mr Dutch, argued that the starting point for the assault charge was lenient, and that the starting point for the receiving charge was excessive. He submitted that a more appropriate end sentence would have been around eight months' imprisonment. The Crown's counsel, Mr Batts, argued that the starting points for each charge were appropriate, and that the sentence was within the range.

The court examined the assault charge, which was a common assault with a maximum sentence of one year's imprisonment. The court found that the assault was a very serious one, involving premeditation, an attack to the head, and a vulnerable victim. The court assessed the aggravating factors and determined that a starting point of up to 12 months would have been appropriate, taking into account the appellant's history of violent offending. The court considered a 20% discount for the guilty plea, which resulted in a sentence of 10 months' imprisonment for the assault charge.

The court then considered the receiving charge, which had a maximum penalty of seven years' imprisonment. The court found that the offence showed elements of commerciality, and that the value of the car placed it within the moderate category of seriousness. The court determined that a starting point of around nine months' imprisonment would have been appropriate. However, considering the appellant's extremely bad history of dishonesty offending and the risk he posed to the community, the court found that a significant uplift for past offending was required. The court concluded that a starting point of 16 months' imprisonment was appropriate for the receiving charge.

Regarding the breach of parole conditions, the court found that the three-month starting point imposed by the Judge was appropriate, taking into account the appellant's history of breaching parole and bail conditions. The court concluded that a total starting point of 28 months before considering the guilty plea and totality was appropriate. The court found that no significant deduction for totality was required, and that the 21-month imprisonment sentence was appropriate, considering the appellant's appalling record and the fact that the offending was committed shortly after he was released from prison and while he was on bail.

The appeal was dismissed, and the sentence imposed by the Judge was upheld.

Orders