Williams v Police

[2023] NZHC 1935

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2023-443-13

[2023] NZHC 1935

BETWEEN

BARRIE JOHN WILLIAMS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	4 July 2023
Appearances:	N P Bourke for the Appellant H Bullock for the Respondent
Judgment:	21 July 2023

JUDGMENT OF PALMER J

Counsel/Solicitors

N P Bourke, Barrister, New Plymouth C & M Legal, New Plymouth

WILLIAMS v NEW ZEALAND POLICE [2023] NZHC 1935 [21 July 2023]

What happened?

[1]    In November 2022, Mr Barrie Williams, who was then 40 years old, worked at the same place as the then 14-year-old complainant. From 15 November 2022, he sent her messages via social media complimenting her at every opportunity and often asked her for “fit checks” or pictures of her outfits. In response to one, Mr Williams replied “[l]ooking at your snaps trying to not look too hard at your chest”. The complainant felt uncomfortable and ceased contact at the time. On 18 November 2022, Mr Williams approached the complainant at work and said “[s]o are you going to keep me up all night again …?”. The complainant felt uncomfortable and went home. Later the same evening, Mr Williams sent the complainant multiple photos on Snapchat including of him with his jeans unzipped exposing his underwear showing an outline of his genitalia. He also sent her two photographs of him lying fully naked on his stomach, and a selfie with a naked upper torso. Mr Williams told the Police he knew the complainant was 14 and knew what he sent was indecent. He pleaded guilty to one charge of indecent communication with a young person.

[2]    In 2012, Mr Williams was sentenced to two years and six months’ imprisonment for sexual connection with a young person aged between 14 and 16 years. In 2014 he was recalled to prison after breach of his parole release conditions by contacting that victim. In advice to the Court, the Department of Corrections reported that Mr Williams had attended 17 offending-specific counselling and treatment session while incarcerated in 2013–2014. A comprehensive Safety and Relapse Prevention Plan was developed with him before he was recalled to prison and another one afterwards. Corrections considered that “Mr Williams’ persistent denial of much of his offending against his victims, past and present, does not bode well for an offence-free lifestyle upon his release”. It considered he displayed “little to no insight into the long term emotional or psychological damage that his actions may have inflicted on his victim and denied the extent of his offending at every opportunity”. It assessed his risk of similar sexual offending was high and could recommend no sentence other than imprisonment, with compulsory attendance at a sex offenders programme in prison.

[3]    On 5 May 2023, in the District Court at New Plymouth, Judge A S Greig sentenced Mr Williams to eight months’ imprisonment.1 The Judge identified the aggravating factors of the offending to be: the extent of the harm to the victim; the vulnerability of the victim due to her age; a breach of trust due to Mr Williams’ age; premeditation.2 He also stated that Mr Williams’ previous convictions made the offending more serious.3 The Judge relied on the Corrections advice and set the starting point at nine months’ imprisonment.4 The Judge:5

(a)uplifted the sentence by two months for his previous convictions;

(b)gave a 25 per cent discount for the early guilty plea;

(c)did not provide a discount for remorse because of reports Mr Williams blamed the complainant for his role in the offending;6

(d)did not grant leave for Mr Williams to apply for home detention, largely based on the Probation Officer’s report and the need to deter and denounce his offending;

(e)noted that Mr Williams was automatically placed on the Child Sex Offender Register; and

(f)granted Mr Williams bail pending appeal with a 7 pm to 7 am curfew and other conditions.

[4]    The end sentence was eight months’ imprisonment.7 Mr Williams appeals the sentence.

1      Police v Williams [2023] NZDC 9051.

2 At [11].

3 At [11].

4 At [35].

5 At [35].

6 At [33].

7 At [35].

Submissions

[5]    Mr Bourke, for Mr Williams, submits the uplift for previous convictions was not justified because the previous offending was 10 years ago and the recent offending did not involve any physical conduct. He relies on Fry v R.8 But primary submission is that a community-based sentence should have been imposed instead of a short sentence of imprisonment. The Judge erred in considering electronic monitoring was necessary to impose home detention. Mr Williams’ compliance with bail indicates there is no risk that needs to be managed by electronic monitoring. Contrary to the Corrections’ report, he fully accepts responsibility as indicated in an affidavit. The Judge also erred in not considering imprisonment as a measure of last resort and in failing to consider the punitive impact of being on the Child Sex Offender Register. Imprisonment on top of that is grossly disproportionate. The Judge erred in assessing the deterrent impact of home detention at his former family home when he the proposed address was that of his mother. Allowing Mr Williams to remain in the community, where he has had no bail compliance difficulties, will allow him to continue counselling, promote his rehabilitation, and accordingly provide greater protection to the community.

[6]    Ms Bullock, for the Police, submits the uplift was proportionate to the starting point and was justified given the similarity of the present offending to the previous offending. She submits the Judge had regard to the interests of the victim, denouncing and deterring Mr Williams’ conduct and protecting the community. Mr Williams’ parents’ address was too remote and the address of his wife and children was too close to a school. Mr Williams breached previous release conditions on multiple occasions by contacting the victim of his earlier offending and his recent offending, after already serving a sentence of imprisonment for similar offending showed that home detention would not be a strong-enough deterrent. Registration should not be taken into account in determination whether imprisonment is appropriate or its length.

8      R v Fry DC Invercargill CRI-2013-059-496, 14 February 2014.

Should the appeal be allowed?

[7]    Appeals against a refusal of leave to apply for home detention are considered appeals against sentence. Under s 240(2) of the Criminal Procedure Act 2011, I must allow the appeal if satisfied there has been a material error in the sentence imposed and a different sentence should be imposed. The focus is on whether the end sentence is within the available range.9 The Court will only intervene and substitute its own views on appeal if the sentence is “manifestly excessive”.10

[8]    In Reedy v Police Dunningham J stated the following principles in relation to uplifts for previous offending:11

(a)there will be no uplift for the bare existence of previous convictions

— to do so would be to punish offending more than once;

(b)The permissible lines of reasoning, justifying an uplift, fall into three broad categories:

(i)previous convictions bearing upon character and culpability;

(ii)indication of predilection to offend in a specific way (an indicator of reoffending);

(iii)the need to protect society by the imposition of a deterrent sentence.

This necessarily requires the uplift to be firmly tied to specific aspects of the offender's criminal history.12

(c)the uplift must remain proportionate to the starting point fixed by the sentencing Judge.13

(d)there is no fixed figure beyond which an uplift will be held to be disproportionate.14 This is a matter to be determined, at first instance, by the sentencing judge having regard to all relevant factors (i.e. number, seriousness and nature of previous convictions, previous sentences imposed, time elapsed since the last conviction etc).

[9]    I consider these principles support the imposition of an uplift for Mr Williams’ previous offending, which indicate a predilection to offend in a specific way. Matters

9      Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27], [33], and [35].

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

11     Reedy v Police [2015] NZHC 1069 at [19].

12     O’Connor v R [2014] NZCA 328 at [41].

13     See for example Tiplady-Koroheke v R [2012] NZCA 477; and Hodgkinson v R [2012] NZCA 478.

14     Ripia v R [2011], above n 10, at [10].

did not get as far down the path as they did with his previous sexual connection with a 14-year-old, but Mr Williams’ conduct was certainly heading in the same direction. And his conviction for contacting the victim of that offending adds to his pattern. The previous offending is not long enough ago to interrupt that, given Mr Williams’ period of imprisonment. As the Judge said here, there is a need to protect society by the imposition of a deterrent sentence and effect on the victim supported the need for deterrence. The uplift was proportionate. By contrast, the sentencing Judge in the case of Fry v R did not explain the reasons for an uplift.

[10]   I also consider the sentence of imprisonment is well justified as the least restrictive sentence appropriate in the circumstances:

(a)The Judge carefully considered whether or not to imprison Mr Williams. He took into account the principles of deterrence and denunciation but also the interests of the victim and protection of the community.

(b)The pattern of offending indicated a previous term of imprisonment had not deterred further offending. Extensive previous rehabilitation did not prevent it either. In those circumstances there is no reason to suppose that home detention would either deter or rehabilitate. Home detention without electronic monitoring is even less likely to do so. If counselling programmes for Mr Williams are available in prison, I urge Corrections to provide them to him. If not, at least imprisonment prevents further offending for a period.

(c)Corrections’ report provided a sound basis for the Judge’s decision. Mr Williams’ guilty plea after the offending does not affect its cogency. Neither does his affidavit disputing Corrections’ assessment.

(d)The sentence is not manifestly excessive.

(e)That is not affected by the fact that the sentence automatically required registration as a child sex offender. That is the consequence of such offending.

Result

[11]I dismiss the appeal.

[12]   Having dismissed the appeal, I do not maintain Mr Williams’ bail as Mr Bourke sought. I do not consider Mr Williams has shown why bail should be granted and am not satisfied it would be in the interests of justice to grant bail. I do not consider the grounds of appeal are strong, the length of the sentence imposed is not great, and Mr Williams’ personal circumstances do not militate in favour of bail.

Palmer J