Williams v Police - [2015] NZHC 70

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-94 [2015] NZHC 70

BETWEEN
BRENT SPENCER WILLIAMS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 February 2015

Counsel:

WT Nabney for appellant
JJ Rhodes for respondent

Judgment:

4 February 2015

(ORAL) JUDGMENT OF FAIRE J

Solicitors: Pacific Coast Law, Papamoa
Ronayne Hollister-Jones Lellman, Tauranga

Williams v New Zealand Police [2015] NZHC 70 [4 February 2015]

Contents

Introduction ............................................................................................................[1]

Factual background ................................................................................................[2] District Court Decision [8]
Appellant’s submissions .......................................................................................[16] Respondent’s submissions....................................................................................[24] Appeal against sentence .............................................................................................
Approach to an appeal [31]

Analysis ......................................................................................................................
Objectionable publications [39] Indecent act [45]

Adjusting the starting point ..................................................................................[49] Home detention ....................................................................................................[52] Result....................................................................................................................[59]

Introduction

[1] The appellant was sentenced to two years’ imprisonment for seven charges of doing an indecent act on a 15 year old and nine charges of wilfully making objectionable publications, and one offence under the Summary Offences Act 1981. The appellant appeals the sentence on the ground that it is manifestly excessive and that the District Court placed undue emphasis on deterrence when declining to impose a sentence of home detention.

Factual background

[2] In 2013 the appellant and his wife employed a young relative, the complainant, to clean their house for pocket money. The appellant offered the complainant money if she would send him text messages containing pictures of her vagina. On several occasions between 3 August 2013 and 29 January 2014, the

complainant sent the appellant at least one photograph via text per month. In some of the photographs, the complainant had inserted an object into her vagina at the appellant’s request.

[3] Between 3 August 2013 and 29 January 2014, the appellant offered the complainant money to take a photo shoot. On two occasions the complainant agreed and was taken to an upstairs bedroom. The appellant then took photographs of her naked and in certain poses.

[4] Between 30 January 2014 and 30 July 2014, the complainant continued to send the appellant at least one photograph a month of her vagina. The appellant suggested another photo shoot to which the complainant agreed. It was similar in nature to the earlier photo shoots.

[5] Between 1 July 2014 and 22 July 2014, the appellant offered to purchase alcohol for the complainant and her 16 year old friend. The complainant and the appellant went to purchase alcohol in the appellant’s car. When parked outside the alcohol store, the appellant commenced a conversation with the complainant about sex toys and sexual acts.

[6] The appellant admitted to taking photographs of the complainant and said that the complainant had tempted him and that he was “addicted to it”.1

[7] The appellant is aged 56 years of age.

District Court Decision

[8] On 2 December 2014, the appellant was sentenced by Judge Rollo on:

(a) seven charges of doing an indecent act to a young person under 16 under s 134(3) of the Crimes Act 1961. The maximum sentence is
seven years’ imprisonment.

1 See Police Summary of Facts at 3.

(b)nine representative charges of…

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 70
Decision Date: 4 February 2015

CaseChat Overview and Summary

In the case of Williams v Police, the appellant Brent Spencer Williams appealed against his sentence, arguing it was manifestly excessive and that the District Court placed undue emphasis on deterrence when declining to impose a sentence of home detention. The appellant was sentenced to two years' imprisonment for seven charges of doing an indecent act on a 15-year-old and nine charges of wilfully making objectionable publications, and one offence under the Summary Offences Act 1981. The District Court Judge adopted a starting point of two years' imprisonment for the indecent act offences and uplifted the sentence by 12 months for the objectionable publication offences. The Judge declined to grant home detention, emphasising the firm approach needed for this type of offending.

The Court found that the District Court's starting point of two years' imprisonment for the objectionable publication charges was appropriate. However, considering the unusual nature of the indecent act charges, the Court adjusted the starting point to two years and ten months' imprisonment. After applying discounts for mitigating factors and the guilty plea, the Court determined that the sentence of two years' imprisonment imposed by the District Court was not manifestly excessive. The Court found that the purposes of sentencing, namely, denunciation, deterrence, and the promotion of a sense of responsibility in the appellant, could not be achieved by a sentence other than imprisonment. The appeal was dismissed.

Final orders: The appeal is dismissed, and the original sentence of two years' imprisonment is upheld.

Orders