Williams v Police
[2025] NZHC 923
•15 April 2025
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2025-483-7
CRI-2025-483-8 [2025] NZHC 923
BETWEEN CATHERINE MARY WILLIAMS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 April 2025 Appearances:
D M Goodlet for Appellant A N Kearney for Respondent
Judgment:
15 April 2025
JUDGMENT OF McHERRON J
Introduction
[1] On 22 November 2024, Catherine Williams was sentenced in the Whanganui District Court to 18 months’ imprisonment by Judge Marinovich, after accepting a sentence indication.1 Ms Williams pleaded guilty to multiple charges of drug possession and failing to carry out obligations in relation to a computer search.2 She is due to be released on 22 August 2025 and seeks leave to appeal her sentence out of time. The ground of appeal she advances is that she ought to have been given the opportunity to serve her sentence of imprisonment as a sentence of home detention.
1 Police v Williams [2024] NZDC 28465 [Judgment under appeal]. The sentence indication was given on 5 July 2024 and was for 29.5 months’ imprisonment, with the possibility of other discounts being available depending on the information provided at sentencing.
2 Misuse of Drugs Act 1975, ss 7(1)(a) and (2) and 12A(2)(b). Possession of a precursor substance (x 2) (maximum penalty of five years’ imprisonment), possession of methamphetamine (x 2) (maximum penalty of 6 months’ imprisonment, $1,000 fine), possession of LSD (maximum penalty of 6 months’ imprisonment, $1,000 fine), GBL and another drug (maximum penalty of 3 months’ imprisonment, $500 fine). Search and Surveillance Act 2012, s 178 (maximum penalty of 3 months’ imprisonment).
WILLIAMS v NEW ZEALAND POLICE [2025] NZHC 923 [15 April 2025]
The facts
[2] I have taken the summary of facts from Judge Marinovich’s sentence indication.3
[3] On 14 December 2022, Ms Williams was arrested at an address in Whanganui. Police executed a search and located:
(a)487 grams of mainly pseudoephedrine hydrochloride and approximately 993 grams of iodine balls (precursor substances for the manufacture of methamphetamine);
(b)two grams of methamphetamine;
(c)two tabs of LSD;
(d)GBL in excess of 48 millilitres;
(e)240 grams of cannabis, 25 cannabis clones (plants grown from cuttings) approximately 7cm in height and a colourful glass bong;
(f)numerous unknown tablets believed to be prescription drugs;
(g)$1,520 in cash.
[4]Ms Williams declined to provide the unlock codes for her devices.
[5] On 22 November 2023, while Ms Williams was on bail for the above offending, she was found in possession of a point bag with a small amount of methamphetamine. This bag was located by a toilet, with a bag containing glass pipes used for methamphetamine consumption found in the toilet bowl.
3 Police v Williams DC Whanganui CRI-2022-083-1575+1654, 5 July 2024 (Sentencing Indication).
District Court sentencing decision
[6] On the day of sentence, the Judge was troubled by the presence in Court of a man described by the Judge as Ms Williams’ partner (but who Ms Williams’ counsel Ms Goodlet clarified was not her partner). In the discussion prior to sentencing, the Judge had this person removed from the Court, noting he was clearly under the influence.4
[7] The Judge was also concerned about the appearance in Court of Ms Williams herself. He described her as unable to stand without the use of the dock wall.5 However, Ms Williams denied she had been using drugs that day.
[8] The Judge applied a global starting point for Ms Williams’ offending of 37 months’ imprisonment, which aligned with the sentencing indication she had accepted.6 The Judge had regard to the pre-sentence report, and an updated report.7 He uplifted by one and a half months’ imprisonment for personal aggravating factors,8 and discounted a total of 15 per cent for remorse and rehabilitation (considered separately).9 Adding the guilty plea discount of 25 per cent, the final sentence was 22 months’ imprisonment, imposed on each charge of possession of a precursor substance.10 Two month concurrent sentences were imposed for the remaining charges associated with the 14 December 2022 search and the 22 November 2023 offending while on bail.11 Added to these sentences were six months’ release conditions post- sentence and a destruction order.12
[9] Although 22 months is a short-term sentence of imprisonment, the Judge declined to commute the sentence to one of home detention. Acknowledging the need to impose the least restrictive outcome that is appropriate in the circumstances,13 the Judge also referred to the statutory purposes of protection of the community,
4 R v Williams DC Whanganui CRI-2023-083-1654 & 1575, 22 November 2024 (Legal Discussion).
5 Judgment under appeal, above n 1, at [6].
6 At [4].
7 At [7].
8 At [18].
9 At [19] and [20].
10 At [29].
11 At [29].
12 At [30]-[31].
13 Sentencing Act 2002, s 8(g).
deterrence, denunciation, accountability, promoting a sense of responsibility in Ms Williams, providing for the interests of any victims and Ms Williams’ rehabilitation.14
[10]The Judge also referred to:
(a)the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community; and
(b)that the Court must not impose a sentence of imprisonment unless it is satisfied that:
(i)a sentence is being imposed for the applicable statutory purposes;
(ii)that those purposes cannot be achieved by a sentence other than imprisonment; and
(iii)that no other sentence would be consistent with the application of the principles in section 8 of the Sentencing Act 2002 to the particular case.15
[11] The Judge noted Ms Williams’ offending was serious and persistent. He considered her history of methamphetamine abuse, her history of supplying methamphetamine and other drugs, and her presentation in Court and that of the man she was with.
[12] In light of the purposes of sentencing, particularly protection of the community, deterrence and denunciation, the Judge determined the purposes of sentencing could not be achieved by a sentence other than imprisonment.16
14 Section 7(1).
15 Section 16.
16 Judgment under appeal, above n 1, at [28].
[13] After the sentencing, the Judge amended the decision, reducing it by a further four months to account for time Ms Williams had spent on EM bail.17 The final sentence was therefore 18 months’ imprisonment.
Approach to sentence appeal
[14] I must allow the appeal if I am satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.18
[15] Whether a sentence is manifestly excessive is assessed by reference to the end result, rather than the process by which it was reached.19 The Court does not start afresh or simply substitute its own opinion for that of the original sentencer.20 A claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error, which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.21
[16] If there is a material error in the sentencing process, the Court will then form its own view of the appropriate sentence.22
[17] I should not “tinker” or intervene with the end sentence if the end sentence is within range.23 The focus must be on the end sentence, not the process adopted to reach that end sentence.24 In borderline cases, “the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight.”25
[18] The main thrust of Ms Williams’ appeal is that the sentence of imprisonment should have been commuted to home detention. R v Palmer confirmed the same
17 At [32].
18 Criminal Procedure Act 2011, s 250.
19 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
20 At [30].
21 At [32].
22 Tutakangahau v R, above n 19, at [30] citing Te Aho v R [2013] NZCA 47 at [30].
23 R v Boyd (2004) 21 CRNZ 169 at [38].
24 Ripia v R [2011] NZCA 101. See also Tutakangahau v R, above n 19, at [36].
25 R v D (CA 253/2008) [2008] NZCA 254 at [66].
appellate approach as I have described above will apply to an appeal against a decision not to commute a sentence of imprisonment to home detention.26
Leave to appeal
[19] The appeal is out of time.27 I am satisfied that the intervening Christmas and New Year period contributed to the delay, and consider it is in the interests of justice to hear and determine the appeal. Leave to appeal is granted.
Arguments
For the appellant
[20] Ms Goodlet, for Ms Williams, submits the District Court did not “adequately consider or balance all of the purposes and principles of sentencing,” in particular Ms Williams’ focus on, and prospects of, rehabilitation. She submits the end sentence of imprisonment is manifestly excessive, and that the most appropriate sentence was one of home detention. Ms Goodlet points to the pre-sentence report, which recommended home detention, and Ms Williams’ employment reference. Counsel also highlights that Ms Williams was not charged with supply of methamphetamine, but rather, possession of pre-cursor substances relating to the manufacture of methamphetamine. Ms Goodlet submits there is an absence of indicia of actual manufacturing but says Ms Williams was merely a courier for these substances. Ms Goodlet suggests that the Judge overstated the significance of Ms Williams’ presentation, in viewing the offending through the lens of methamphetamine’s serious social harm.
[21] The District Court had concerns with Ms Williams’ comment that she could not conceptualise the harm drugs cause to others, because it is their choice to take them.28 Ms Goodlet submits the Judge mistook this comment. The correct interpretation of this comment, according to Ms Goodlet, is that the appellant was
26 R v Palmer [2016] NZCA 541.
27 Criminal Procedure Act, s 248(2): a notice of appeal must be filed within 20 working days after the sentencing date.
28 Judgment under appeal, above n 1, at [13]. I note the comments on choice in Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [92].
actually reflecting her “learnings” and “positive ideals retained” from her drug rehabilitation.
[22] Further, Ms Goodlet says Ms Williams was prepared to take a drug test on the day of sentence to alleviate the Judge’s concerns but that this was not offered to her.
[23] Ms Goodlet submits the Court incorrectly balanced the principles of sentencing. She says the Judge gave too much weight to the issue of community deterrence and denunciation and not enough weight to the prospects of Ms Williams’ drug addiction rehabilitation with which she has re-engaged, and the fact that she had employment. Her employment is confirmed as still available, as is a suitable home detention address.
For the respondent
[24] Ms Kearney, for the Crown, submits there is no error in the Judge’s sentencing approach and it was open to him to refuse to commute the term of imprisonment to home detention. She says this Court will “ordinarily defer” to the assessment of the sentencing Judge on appeal where the issue is whether home detention is appropriate in all the circumstances.29 While acknowledging there was no charge of methamphetamine for supply, Ms Kearney noted that protecting the community is still a relevant consideration given the charges for possession of substances used in the manufacture of methamphetamine.
[25] Counsel notes Ms Williams re-offended on bail in 2023 following completion of the Bridge programme, that her presentation at Court was of concern, and the Court was entitled to question the realistic prospects of rehabilitation.
Analysis
[26] Where a short-term sentence of imprisonment is available to an offender, a sentence of home detention may be imposed instead.30 Whether home detention is the
29 Citing R v D (CA253/08), above n 25, at [66].
30 Sentencing Act, s 15A.
appropriate sentence forms part of an evaluative exercise having regard to the principles and purposes of sentencing under the Sentencing Act, ss 7 and 8.31
[27] I accept the Crown’s submission that where an offender is on the cusp of home detention, an appellate court will ordinarily defer to the assessment of the sentencing judge and decline to interfere with a decision not to impose home detention, provided the appeal court is satisfied the discretion was exercised in having regard to the purposes and principles in the Sentencing Act.32
[28] I am not persuaded the District Court’s decision contains any material error. The appeal is advanced on the basis that the Judge was “wrong” to prioritise deterrence, denunciation and community protection, over rehabilitation, and that it was “wrong” to find that imprisonment was the option required to achieve the purposes and principles. Having carefully reviewed the material, I do not consider the Judge erred.
[29] The District Court was understandably focused on the harm methamphetamine brings to the community, commenting that “methamphetamine is a scourge in this little community...Whanganui is simply ravaged by it”.33 I acknowledge that, despite these comments, Ms Williams is not a large-scale drug dealer. It appears her involvement with methamphetamine and other substances was primarily to fund her own addiction. There may be no evidence of manufacture by her, but the Judge was right to be concerned that those precursor substances would be used in the manufacturing process, whether by Ms Williams or someone else. She was involved in the chain of production of illegal drugs. Therefore, her possession of precursor substances indicates protection of the community was certainly a relevant consideration.
[30] I consider the Judge was entitled to balance the purposes and principles of sentencing in the way he did. A different Judge on a different day may have concluded that home detention was the most appropriate option.34 However, on appeal, this Court
31 James v R [2010] NZCA 206.
32 R v D, above n 25.
33 Judgment under appeal, above n 1, at [27].
34 See Zhang, above n 28, at [150].
does not start afresh or simply substitute its own opinion.35 In all the circumstances, it is not necessary to revisit the sentence.
[31] The Judge considered Ms Williams’ rehabilitative potential, giving a 10 per cent discount, as well as the fact she had employment. I am not in a position to second- guess the Judge’s impression that Ms Williams’ presentation in Court indicated recent drug consumption, creating doubt as to her ability to manage her addiction.36 Despite this, he considered Ms Williams had been “willing to engage” and the force of her addiction (contributing to offending behaviour) was “clear”.37 A further five per cent discount was given for remorse. I acknowledge the alternative explanation for Ms Williams’ comment on drug use, but despite the concern of the Judge that she was “sympathetic” to drug use, he still provided a discount of five per cent.
[32] It is clear the Judge had substantial concerns about the man who attended Court with Ms Williams, but he explicitly did not blame her for his presentation.38 I do not accept, when discussed in this way, that this was an irrelevant or prejudicial point.
[33] The starting point of the sentence is clearly within range. Ms Williams also received a 25 per cent discount for her guilty pleas — her total discounts were 40 per cent, plus a further four months for time on EM bail, which was generous.39
[34] The District Court expressly considered home detention,40 but concluded that “it needs to be sheeted home to [the appellant] that methamphetamine will not be tolerated in this community”.41 Judge Marinovich characterised Ms Williams’ drug offending as “serious and persistent”,42 and “ultimately” found that protection of the
35 See R v Shipton [2007] 2 NZLR 218 (CA).
36 Judgment under appeal, above n 1, at [20].
37 See Zhang v R, above n 28, at [10(f)] and [139], [146] and [150].
38 Judgment under appeal, above n 1, at [6].
39 See Sentencing Act, s 9(3A). There was an eight-month period where Ms Williams was on a full 24-hour curfew, but there is the suggestion by the Judge that there were compliance issues regarding drug use. See R v Nepe [2008] NZCA 98 at [33]; and the discussion in Te Ao v R [2023] NZCA 327.
40 See Judgment under appeal, above n 1, at [23]–[25]. This accords with the requirement to squarely consider home detention as outlined in Papa v Police [2019] NZHC 1309 at [10].
41 At [28]. See also R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.
42 At [26].
community, deterrence and denunciation were more significant in this case than rehabilitation prospects.43
[35] The principles and purposes can sometimes point in opposing directions, even in cases of offenders with clear addiction issues. Overall, I consider the decision is orthodox and thorough. I reiterate that in appeals of this nature, “the margin of appreciation extended to sentencing judges is usually significant”.44 In this case, I conclude the Judge did not exceed that margin.
Result
[36]The appeal is dismissed.
McHerron J
Solicitors:
C&M Legal, Whanganui for Respondent
43 At [28]. See Oltaches v Police [2021] NZHC 908 at [17] for the observation that “there does come a time when the need for deterrence and the safety of the community must take precedence over the possible rehabilitative needs of the offender”.
44 R v Palmer, above n 26, at [19], citing R v D, above n 25.
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