Williams v Police - [2013] NZHC 1187

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2012-454-20 [2013] NZHC 1187

BARRIE JOHN WILLIAMS
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 21 May 2013

Counsel: C P Brosnahan for Appellant
D J Flinn for Respondent

Judgment: 23 May 2013

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 1.00pm on the 23rd May 2013.

JUDGMENT OF WILLIAMS J

Solicitors:
C P Brosnahan, Barrister, PO Box 785, Wanganui
Crown Solicitor, Palmerston North

BARRIE JOHN WILLIAMS V NEW ZEALAND POLICE HC PMN CRI-2012-454-20 [23 May 2013]

[1] The appellant Mr Williams pleaded guilty to one charge of sexual connection with a young person aged 14, and on 20 August last year he was sentenced in the District Court to two years and six months’ imprisonment for his offending.

[2] Mr Williams appeals. He advances three arguments, all of them alleging that the learned Judge in the District Court sentenced on the basis of material mistakes of fact. In logical order the contentions are:

(a) that the victim whom I will call Mandy (as did the District Court) was not as badly affected by the offending as the learned Judge had presumed;

(b)that such psychological impact on her as could be discerned was not due directly to the offending but to Mandy’s concerns about the impact of sentencing on Mr Williams; and

(c) that it was Mandy who made the initial advances to the prisoner, not the other around as the learned Judge had allegedly presumed.

[3] Individually or in combination, Mr Brosnahan’s submission was that these misapprehensions of fact caused the learned Judged to adopt a starting point that was too high.

The facts

[4] At the time of the offending, Mr Williams was 29 years old and completing a nursing degree. He worked one day a week at Te Matai House, a respite care facility. While there he assisted in Mandy’s care. She was at the Te Matai House to aid her treatment for post-traumatic stress disorder caused by the abuse and neglect she suffered while she was in her mother’s care.

[5] Mr Williams befriended Mandy. He had access to her medical file and a “risk register”, describing in some detail the risks and vulnerabilities associated with Mandy. I will come back to that shortly.

[6] Nothing untoward happened during Mandy’s time at Te Matai, but when Mandy was discharged, the two kept in contact. As I have said, Mr Williams says Mandy initiated contact through Facebook. I did not take the Crown to be disputing this. They met up on a number of occasions and at pre-arranged points away from the family home. At three such meetings the two had sexual intercourse once on a riverbank close to her home and twice at Mr Williams’ own home.

Sentencing in the District Court

[7] At sentencing, the Crown submitted that a starting point of between three and a half and four years’ imprisonment was justified. Mr Brosnahan argued…

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.

Continue reading Williams v Police

Details

AGLC: Williams v Police [2013] NZHC 1187
Case: [2013] NZHC 1187
Decision Date: 23 May 2013

CaseChat Overview and Summary

In Williams v Police, the appellant, Mr Williams, appealed against his sentence of two years and six months’ imprisonment for sexual connection with a young person aged 14. Mr Williams raised three arguments before the Court, all of which alleged that the District Court judge had made material mistakes of fact in sentencing him. The arguments were that the victim, Mandy, was not as affected by the offending as the judge had presumed, that any psychological impact on her was due to her concerns about the impact of sentencing on Mr Williams, and that Mandy made the initial advances to Mr Williams, not the other way around. The Court of Appeal found that the learned judge was correct in concluding that Mr Williams’ actions amounted to a serious and gross breach of trust. The appeal was dismissed accordingly.

The Court of Appeal considered the key factors identified in Mr Brosnahan’s submissions, which were the relevant and significant issues in the appeal. The Court found that even accepting that the learned judge was led into overstating the impact of this episode on Mandy, the offending clearly did affect her in a significant way. The Court also found that for Mandy to blame herself for the trouble that ensues when a 29 year old caregiver engages in sexual conduct with her, is an entirely predictable aspect of her own psychological issues. This could not be seen, in its proper context, as a mitigating factor. The Court concluded that the essence of Mr Brosnahan’s argument was that Mandy was the sexually aggressive party and Mr Williams the victim to some extent at least. That could not be right. The signature aspect of this case was that Mandy was emotionally unwell, that an aspect of her condition was that she engaged in sexually inappropriate behaviour, and that those who were charged with her care, especially male carers, needed to be aware of and watchful of this. Mr Williams was explicitly warned to exercise “situational prudence”. The learned judge was correct in concluding that in context, Mr Williams’ actions amounted to a serious and gross breach of trust.

Orders