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 for two years.

[8]      The learned Judge set out in detail the content of Mandy’s “risk register”.  In

summary it provided:

(a)       that Mandy had a history of self harm;

(b)that those caring for her must monitor all interactions with males and/or impressionable young people;

(c)       that  her behaviour  often  towards males  in conversations  could  be

inappropriate and “sexualised”;

(d)      that she had suicidal ideation;

(e)       that she had a history of shocking people with comments about her actual or fictional past;

(f)       that  she  was  in  low  mood,  non-communicative,  vulnerable  and impulsive;

(g)      that there was a need to impose clear boundaries with her; and

(h)      that she should not be left in a company alone of client males and that

male staff should exercise “situational prudence”.

[9]      The learned Judge considered that Mr Williams could not have had a “clearer warning bell” as to Mandy’s vulnerability.

[10]     The learned Judge then considered the impact of the offending on Mandy.  He noted her aunt’s victim impact statement suggesting that Mandy had made positive steps during her time at Te Matai House but following discharge, there was a clear negative change in her demeanour and behaviour. According to her aunt, she pressed Mandy about this change in her behaviour and withdrawal from the family unit and Mandy promptly broke down and disclosed what had happened.  Her aunt said that Mandy tried to take her own life three times and that at the time of sentencing Mandy was in hospital after a severe breakdown and was at a mental care ward for adolescents.   The learned Judge also noted a report from Mid Central Health containing a roughly similar account.

[11]     The learned Judge emphasised that this offending amounted to a gross breach of trust by Mr Williams. The Judge said:1

… I do not know of an example where somebody has been given the information that you were given, that has been abused to the extent that you took it.  The fact that Mandy was no longer at Te Matai makes absolutely no difference whatsoever.   Her vulnerability and her openness to the type of relationship which you develop with her, was clearly signalled to you, not just by interpersonal relationships but thereon on paper in the management and risk management documentation.

[12]     The Judge continued:2

… as I have said the gross breach given important aspect in this particular matter.

Your counsel asked me to watch the evidential video with Mandy and I did. What I saw there was exactly the type of young girl I would have expected to have seen on the basis of the risk assessment that you had provided to you.  She was behaving in precisely that way.  Suggestions that she has, and I paraphrase as it is not the word used by counsel, “led you on”, are just not acceptable in this circumstance.

1      Police v Williams [2013] DCR 181 at [8].

2      At [11]-[12].

[13]     In determining an appropriate starting point, the learned Judge drew on the Court of Appeal decision in R v Johnson.3     The Judge focused on the Court of Appeal’s comment that where there has been an abuse of trust, a significant age gap and full penetrative sex on a number of occasions with significant adverse effects on the victim, a starting point of four years could be appropriate.4   The Judge concluded

on the basis of that decision and two further Court of Appeal decisions – R v Brunie5

and  R  v  Henderson,6   that  a  starting  point  of  four  years’  imprisonment  was appropriate to reflect the gross breach of trust involved even though there were no other aggravating factors.

[14]     The learned Judge made particular mention of the fact that the appellant knew at an early stage that what he was doing was wrong, saying to Mandy (as she at least alleged in the police interview) “this is illegal”, the first time intercourse occurred.

[15]     The learned Judge applied a 25 per cent discount – one year – to take account of Mr Williams’ early guilty plea.  Three months was discounted for lack of previous convictions and a further three months for remorse, personal circumstances and the steps taken to address the harm caused by Mr Williams’ offending.  This left an end sentence, as I have said, of two years and six months.

Procedure on appeal

[16]     When the matter first came before me in November last year, it was agreed that further information may well be necessary to prosecute the appeal. The first was an updated report from the complainant’s psychologist, Ms Sowerby, to address Mandy’s mental state at the time of sentencing and currently, as well as to address whether Mandy could provide her own victim impact statement.

[17]     Release was also sought of the file relating to Mandy’s stay at Te Matai.

3      R v Johnson [2010] NZCA 168.

4 At [17].

5      R v Brunie [2009] NZCA 300.

6      R v Henderson [2007] NZCA 524.

[18]     The matter came before MacKenzie J at the beginning of this year by which time there was  a report  from  Ms  Sowerby but  the Te Matai  file had  not  been released.

[19]     The Sowerby report advised as follows:

(a)      Ms Sowerby could not comment on Mandy’s mental state at the time of sentencing as she had not made contact with her at that time.  She had previously worked with Mandy in 2010 but, because there was a waiting list for her services, her first appointment with Mandy was not until 12 October 2012, two months after sentencing.

(b)When Ms Sowerby met with Mandy on that day, Mandy’s mood was low  but  she  denied  any  current  self  harm  or  suicidal  ideation. Mandy’s eating and sleeping patterns were age appropriate, but she reported feeling disinterested in forming friendships or undertaking difficult teenage activities.   She voiced some apathy for the future. When Ms Sowerby met with Mandy again on 25 October, the latter’s mood was brighter and more future directed, as she was looking forward to attending school.

(c)      Ms Sowerby was unable to explain why Mandy did not produce a victim impact statement at the time of sentencing as, she was not involved in Mandy’s care at that time.  She made it clear however that she was not willing to ask Mandy to make a victim impact statement now for two reasons:

(i)first, because it appeared that the offending had destabilised Mandy’s usual coping strategies and triggered overwhelming feelings of hopelessness, so extreme care would need to be taken in discussing the issue with her;

(ii)second, because Ms Sowerby’s understanding was that Mandy was never made aware of the outcome of sentencing it being

feared that such information would have a negative impact on her emotional wellbeing.   Ms Sowerby feared that asking Mandy to make such a statement could reactivate the trauma she had suffered by implying (in Mandy’s mind at least) that Mandy was to blame for what happened.

[20]     As  to  Mr  Brosnahan’s  application  for  disclosure  of  medical  records, MacKenzie J declined to progress this application.  His view was that:

The Judge hearing the appeal will be able to assess the weight to be attached to any comments in [the aunt’s victim impact statement], bearing in mind that the complainant’s aunt is not qualified to express any opinion on mental health issues.  If there is a challenge to any factual statement in the victim impact statement, the Judge hearing the appeal will be able to address that.

Appeal against sentence

[21]     Sections 115 and 119 of the Summary Proceedings Act 1957 provide that sentencing appeals are to be heard by way of rehearing and the onus is of course on the appellant.  I must however come to my own view on the merits.

[22]     Section 121(3) provides that if the sentence is “clearly excessive, inadequate or inappropriate (“manifestly excessive”) the sentence or any part of it may be quashed or varied.

[23]     In  R  v  Monkman,  the  Court  of  Appeal  explained  that  the  meaning  of manifestly excessive in any particular case:7

… turns on the maximum sentence prescribed by law for the offence; the level of sentencing customary observed with respect to that offence; the place which the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the extent that they are relevant with respect to that particular kind of offending)

…

[24]     The focus is always on the correctness of the result, not the process by which the result was reached.8

7      R v Monkman CA 445/02 at [6].

8      Ripia v R [2011] NZCA 101 at [15].

[25]     In this case, the focus is on the starting point.   There is no tariff case for offending under s 134 of the Crimes Act 1961 but, as the learned Judge in the District Court correctly pointed out, the recent Court of Appeal decision in R v Johnson provides an analytical framework for sentencing in s 134 offending.  In that case, the Court of Appeal reviewed a number of previous Court of Appeal decisions in respect of s 134 sentences covering the period from 2007 to 2010.   The court

said:9

We consider that the  four year starting point in  R v  H is still a  useful reference point in relation to sentencing for sexual connection with young persons, where the offending shares features present in that case.  Particular aggravating features in R v H were breach of trust, a significant age gap between the offender and the victim, full penetrative sex on a number of occasions, and significant adverse effects on the victims.  Where aggravating features  in  R  v  H  are  present,  a  starting  point  of  four  years  may  be appropriate.  Other aggravating factors not present in R v H may be seen as increasing culpability.  Such features could include grooming, or abusive and demeaning behaviour.  Where there has been no breach of trust as in R v H but the same aggravating features are present, a lower starting point will be appropriate.  A different combination of aggravating and mitigating factors might produce yet another result.  It follows that the starting point of four years should be seen as no more than a mid point in the range of offending where there is moderate culpability.

[26]     In that case, Johnson was 36 and the victim 15.  There was no grooming but the offending was nonetheless a deliberate course of conduct.  The court expressly noted that whether the complainant is an initiator may well be a material distinguishing factor.  The court also pointed to frequency of sexual contact, rough and demeaning treatment and significant impact on the victim as aggravating factors. The court also noted that in that case there was no breach of trust (or grooming). The starting point adopted at sentencing was three years nine months.  The court did not  upset  that  starting  point  but  did  find  that  it  was  the  very  bottom  of  the

permissible range.

9      R v Johnson, above n 3, at [17].

[27]     I will focus on the key factors identified in Mr Brosnahan’s submissions.  I agree with him that they are the relevant and significant issues in the appeal.   He submitted  that  the  evidence  was  that  the  Judge  overstated  the  impact  of  this offending on the victim, that the impact was in any event more indirect  – self blaming for the effect of conviction and sentence of Mr Williams – rather than damage to her from Mr Williams’ actions.   Mr Brosnahan also pointed out that Mandy was, on the evidence, an initiator.  She was not trapped or drawn into sexual contact.

[28]     In my view (as in the view of the learned Judge in the District Court), whether Mandy initiated the relationship is quite beside the point.  In fact her “risk factors” suggested that is exactly what she would do.   Professionals were warned against getting caught up in her advances because they were an aspect of her mental unwellness.  I do not consider that the Court of Appeal in Johnson had these facts in mind at all when identifying complainant initiation as a mitigating factor.  I set that to one side.

[29]     Secondly, 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.  That is what Ms Sowerby said.  She did not want Mandy to provide a victim impact statement because that would be likely to retraumatise her and lead to a return to self blame and potentially self harm.  That, in my view, demonstrates the harm of the offending is real and ongoing even on Mr Brosnahan’s view of the facts.

[30]     Thirdly, I do not think that the suggestion that Mandy’s concerns related not to harm to her from the offending but the effect of the process on Mr Williams makes any difference at all.  It seems to me 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 cannot be seen, in its proper context, as a mitigating factor.

[31]     In any case, as I noted above, Mandy’s aunt reported a significant negative change in Mandy’s demeanour following discharge.   This deterioration prompted Mandy’s  aunt  to  question  Mandy and  lead  to  Mandy’s  disclosure.    Clearly the offending did have a harmful  effect upon Mandy beyond her concern for the effect of the process on Mr Williams.

[32]     The essence of Mr Brosnahan’s argument is that Mandy was the sexually aggressive party and Mr Williams the victim to some extent at least.  That cannot be right.  The signature aspect of this case is 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 my respectful view in concluding that in context, Mr Williams’ actions amounted to a serious and gross breach of trust.

[33]     This core aspect of the offending really eclipses the factors now advanced on Mr  Williams’  behalf.    Mr  Williams  clearly  understood  this  in  my  view.    As Dr Blackwell said in her report:

Mr Williams reported that some of the people he knew had initially blamed the victim for the offending (on the basis that she had consented).  He said “That really annoys me.  It boils down to me.  I should have been able to be the adult.  It was poor insight on my behalf.”

[34]     There is no basis upon which to conclude that the sentence imposed was excessive. The appeal must be dismissed accordingly.

Williams J