Williams v R
[2021] NZCA 54
•10 March 2021 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA140/2020 [2021] NZCA 54 |
| BETWEEN | MICHAEL WILLIAMS |
| AND | THE QUEEN |
| Hearing: | 22 February 2021 |
Court: | Courtney, Mallon and Wylie JJ |
Counsel: | RGR Eagles for Appellant |
Judgment: | 10 March 2021 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe sentence of two years and 10 months’ imprisonment imposed by the District Court is quashed and a sentence of one year and nine months’ imprisonment is imposed in its place. Mr Williams is given leave to apply to commute the sentence to one of home detention.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wylie J)
Introduction
On 5 March 2020, the appellant, Michael Williams, appeared before Judge Farnan in the Invercargill District Court for sentencing. Mr Williams had been found guilty of two charges of performing an indecent act. He had also pleaded guilty to one charge of trespass and to one charge of attempting to dissuade a witness from giving evidence. He was sentenced to two years and 10 months’ imprisonment.[1]
[1]R v Williams [2020] NZDC 4232 [Sentencing notes].
Mr Williams now appeals his sentence. He submits that it is manifestly excessive. The Crown opposes the appeal. It argues that the sentence is within the available range and that it appropriately reflects Mr Williams’ culpability.
Factual background
On 26 May 2015, Mr Williams was at a store in Tay Street, Invercargill. He approached a female staff member and asked her about buying a present for his young nephew. The staff member showed Mr Williams some puzzles. While he was standing near her, he moved his hands into his jeans pocket. He then pressed hard up against her and she could feel his hand moving rapidly, as if he were masturbating. Mr Williams was breathing heavily. He said “fuck yeah” quietly. The store attendant was both distressed and revolted. Mr Williams was charged with doing an indecent act in a public place pursuant to s 125(1) of the Crimes Act 1961. That offence carries a maximum penalty of two years’ imprisonment.
On 30 May 2017, Mr Williams was in the Invercargill public library. He lay down on a cushion, ostensibly to read. However, he masturbated until he ejaculated, leaving his seminal fluid on the cushion. The cushion was in an area which was open to the public and CCTV footage showed a number of persons in the general area. Library staff who were called on to respond to Mr Williams’ actions were disgusted by what had occurred. Mr Williams made a statement to the police. He said that if his semen was on the cushion, it was because he had had sex with his partner shortly before the incident. The partner, who lived with Mr Williams and who has a mild intellectual disability, was spoken to by the police. She said that they had not had sex at the relevant time. She was to be a witness at Mr Williams’ trial. As a result of the incident in the library, Mr Williams was again charged with doing an indecent act in a public place.
In June 2017, Mr Williams was trespassed from the Invercargill public library. On 15 August 2017, he entered the library, contrary to the trespass notice. He was charged with trespass, contrary to ss 4(4) and 11(2)(a) of the Trespass Act 1980. This offending carries a maximum penalty of three months’ imprisonment or a fine not exceeding $1,000.
In August 2019, shortly before his trial for the indecency offending, Mr Williams told his partner not to be a witness against him. He told her not to go to court and to tell the police that she did not know anything. He repeated these instructions to her over a period of some three days. He also verbally abused her. He took away her witness summons and said that, if she went to court, his lawyer would make her cry. Mr Williams was charged with attempting to dissuade a witness from giving evidence, contrary to s 117(a) of the Crimes Act. This offending carries a maximum penalty of seven years’ imprisonment.
Mr Williams pleaded guilty to the trespass charge. He first appeared on the attempting to dissuade a witness charge on 21 August 2019 and he entered a not guilty plea to the charge. He stood trial in October 2019 on the indecency charges and he was found guilty of those charges. He then sought a sentence indication on the charge of attempting to dissuade a witness, as well as the indecency charges and the trespass charge and, on 5 December 2019, Judge Farnan indicated an end sentence of two years and 10 months’ imprisonment for all of the offending.[2] Mr Williams accepted the sentence indication and he entered a guilty plea to the charge of attempting to dissuade a witness from giving evidence.
[2]R v Williams DC Invercargill CRI-2019-025-1481, 5 December 2019 [Sentencing indication].
Mr Williams came before Judge Farnan for sentence on 5 March 2020.
The sentence indication and the sentencing notes
The sentence indication and the sentencing notes run together because the Judge considered that her indication at sentencing remained appropriate. She annexed a copy of her sentence indication to her sentencing notes.
In her sentencing indication, the Judge adopted a starting point, “on a global basis”, for the indecent act offending of two years and nine months’ imprisonment.[3] She then added three months for Mr Williams’ criminal record. She referred to a report obtained from a clinical psychologist under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 but recorded that, in her view, there was nothing in that report which should result in any discount.[4] She accepted that a prison sentence would be challenging for Mr Williams because his father was unwell and because his partner has health issues.[5] She observed that any discount however had to be tempered by Mr Williams’ actions in attempting to dissuade his partner from coming to court, but nevertheless recorded that she was prepared to reduce the indecent act offending starting point by 15 per cent, resulting in an end sentence for this offending of 30 months — rounded down in Mr Williams’ favour.[6] She then turned to the charge of attempting to dissuade a witness from giving evidence. She considered that Mr Williams’ offending was “towards moderate”.[7] She recorded the Crown’s submission that a starting point of at least 24 months should apply and she acknowledged that Mr Williams was entitled to a guilty plea discount, as well as a discount for personal factors (which she did not elaborate).[8] She then recorded that if she gave Mr Williams a “generous 30 per cent discount”, the end sentence for this offending would be 16 months, again rounded down in Mr Williams’ favour. She added this sentence to the sentence of 30 months for the indecency offending, resulting in an end sentence of 46 months.[9] She then applied the totality principle and reduced the end sentence by “a generous 12 months”. Thus she reached an overall end sentence of two years and 10 months.[10]
[3]At [41].
[4]At [42].
[5]At [43].
[6]At [44].
[7]At [46].
[8]At [47].
[9]At [48].
[10]At [49].
In her sentencing notes, the Judge referred to the relevant facts and to her sentencing indication. She made a correction to the sentence indication (she had referred to the wrong maximum sentence for the indecency act offending) but recorded that this did not affect the indication she had given.[11] She referred to counsels’ submissions and to various reports which she had received. She concluded that, without treatment, Mr Williams presented a high risk of reoffending in a sexual manner.[12] She recorded that, in her view, the sentence of two years and 10 months’ imprisonment indicated in the sentence indication remained appropriate, without further deduction.[13] She expressed concern at Mr Williams’ attitude to rehabilitation and observed that his remorse was “very much on a yoyo basis”.[14] Contrary to how she had derived her overall sentence indication, the Judge imposed sentences of 18 months’ imprisonment on the indecency charges and two years and 10 months’ imprisonment on the charge of attempting to dissuade a witness from giving evidence. She directed that all sentences were to be served concurrently, with the result that the end sentence imposed was one of two years and 10 months’ imprisonment.[15] She convicted and discharged Mr Williams in relation to the trespass charge.[16]
The appeal
[11]Sentencing notes, above n 1, at [16].
[12]At [26].
[13]At [27].
[14]At [28].
[15]At [30]–[32].
[16]At [33].
The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011. This Court must allow the appeal only if it is satisfied that there was an error in the sentence and that a different sentence should have been imposed.[17]
Submissions
[17]Criminal Procedure Act 2011, s 250(2).
Mr Eagles, on behalf of Mr Williams, submitted that the starting point adopted by the Judge in her sentence indication of two years and nine months’ imprisonment for the indecency offending was too high, and that a starting point of 14 months’ imprisonment would have been more appropriate. He accepted that a modest uplift was necessary given Mr Williams’ criminal record. He argued that a starting point of 12 months’ imprisonment was more appropriate for the charge of attempting of dissuade a witness and noted that there should have been a discount for the guilty plea in relation to this charge. He argued that these adjustments would have resulted in a sentence of approximately 26 months’ imprisonment, and that there should then have been a totality discount of, say, six months, resulting in an end sentence of 20 months’ imprisonment.
Mr Davie, for the Crown, accepted that the starting point adopted by the Judge in the sentence indication of two years and nine months’ imprisonment for the indecency offending was out of step with relevant authorities. He acknowledged that a starting point in the range of 10 months’ imprisonment, with an uplift for prior convictions, would have been more appropriate. He argued however that the Judge did not err in adopting a starting point in the range of two years’ imprisonment (in the sentence indication) and two years and ten months (in the sentencing notes) for the charge of attempting to dissuade a witness. He also argued that the Judge was generous in the discounts allowed, noting that Mr Williams showed no remorse and that there is no evidence of social deprivation during his upbringing or anything else that might explain or mitigate his behaviour. Mr Davie argued that the end sentence imposed of two years and 10 months’ imprisonment, whilst stern, was available. He suggested that the sentence could have been better structured as follows — 10 months’ imprisonment for the indecency offending with a five month uplift for previous convictions, one month for the trespass charge, and 18 months for the attempting to dissuade the witness charge, all to be served on a cumulative basis.
Analysis
The sentence indication was given pursuant to s 61 of the Criminal Procedure Act. It was binding on the Judge unless information became available to her after the sentence indication was given but before sentencing, and she was satisfied that that information materially affected the basis on which the sentence indication was given.[18]
[18]Criminal Procedure Act, s 116(2).
No further information became available to the Judge but she departed from the sentence indication by restructuring the sentence imposed. The sentence imposed for the indecency offending was reduced from that indicated in the sentence indication and the sentence imposed for the charge of attempting to dissuade a witness from giving evidence was materially increased. Nevertheless, the end sentence remained the same. Notwithstanding this, we consider that the Judge should have advised Mr Williams that she was proposing to restructure the sentence she intended to impose, and she should have given Mr Williams the opportunity to reconsider his plea.
Where a Judge fails to sentence in accordance with a sentence indication, the conviction should generally be quashed to allow the defendant the opportunity to exercise the right to change his or her plea, albeit that this is not a statutory requirement.[19] Before us, Mr Eagles did not suggest that his client wished to vacate his plea and, given that the end sentence remained the same, we have treated the appeal as a sentence appeal rather than appeal against conviction.
[19]See, for example, Te Namu v Police [2013] NZHC 3443; and Te Tau v Police [2015] NZHC 1716. See generally R v Gemmell [2000] 1 NZLR 695 (CA).
In our judgment, the sentence imposed by the Judge was manifestly excessive.
The Judge imposed an 18-month term of imprisonment for the indecency offending. It is not clear from the sentencing notes whether this was apportioned between the two charges of doing indecent acts or whether each charge received an 18‑month term of imprisonment. She referred to the “indecent act charges from 2015 and 2017” and sentenced Mr Williams to 18 months’ imprisonment,[20] imposed a term of imprisonment for the attempting to dissuade a witness charge, and then said that “[a]ll of these sentences are concurrent”.[21]
[20]Sentencing notes, above n 1, at [30].
[21]At [32].
There is no tariff case for lower order sexual offending under s 125 of the Crimes Act. As noted, the maximum sentence is two years’ imprisonment. Mr Williams’ offending does not appear to have involved any significant premeditation. Rather, it seems to be more spur of the moment offending. He put himself in the position with the shop attendant and offended. The library offending was similar. Insofar as we can ascertain, the offending in the library does not appear to have been witnessed by anybody, but it was clearly in a public place. We consider that both of the indecent acts were moderately serious offending of their kind.
We note that, in a not dissimilar case, this Court held that a starting point of 15 months was within the available range for indecencies which occurred in a public place and in front of young children, who suffered severe impacts as a result of the offending.[22] The indecencies involved were masturbation and ejaculation. A starting point of 12 months’ imprisonment on other charges of indecency in front of girls aged 18 was also considered to be appropriate. The indecencies in front of the 18-year-old girls involved exposure, but not masturbation.
[22]Hosking v R [2012] NZCA 460.
We consider that a starting point in the range of 12 months’ imprisonment was appropriate for each of the indecency offences committed by Mr Williams. We would uplift each starting point sentence of 12 months by one month to take into account Mr Williams’ criminal record (specifically, his history of sexual offending, with convictions in 2002, 2003, 2006, 2007, 2014 and 2015). Sentencing for the two offences should, in our view, proceed on a cumulative basis. The offending in the shop occurred in May 2015 and that in the library occurred May 2017; the victims were different; the nature of the offending in each case was different. We would adopt a starting point sentence of 13 months’ imprisonment on each of the charges of doing an indecent act in a public place.
The charge of attempting to dissuade a witness from giving evidence is more serious. Such offending strikes at the heart of the administration of justice and it requires a condign and deterrent sentence.[23]
[23]Hillman v R CA14/92, 14 May 1992; Barratt v R CA164/01, 27 August 2001 at [11]; and Gemmell v R CA257/96, 2 October 1996 at 6.
Again, there is no guideline sentencing decision for such offending. In Hillman v R,[24] this Court considered that a sentence of three years’ imprisonment is appropriate for relatively serious cases and a sentence in the range of 18 months is appropriate for less serious cases. In Clutterbuck v R, this Court noted that this is provides a “benchmark” of a sentence in the range of 18 months to two years for the latter type of offending.[25] More recently, this Court sentenced an offender to 10 months’ imprisonment for sending two text messages to a witness, telling her to alter her testimony.[26] There was no explicit threat of violence. The trial Judge had taken a starting point of 18 months’ imprisonment, uplifted by four months for prior convictions, and reduced by eight months for personal mitigating circumstances. This Court reduced the sentence to 10 months’ imprisonment on the basis that both the starting point and the uplift were excessive.
[24]Hillman v R, above n 5.
[25]Clutterbuck v R CA372/99, 17 November 1999 at [13].
[26]Thomas v R [2020] NZCA 257.
We consider that both of the starting points adopted by the Judge, two years’ imprisonment in her sentencing indication, and two years and 10 months’ imprisonment in her sentencing notes, were excessive. Mr Williams’ offending occurred over a period of some three days. The victim was vulnerable due to an intellectual disability. These are aggravating features of the offending, but there was no threat of violence and the victim was not in fact dissuaded and she went on to appear and give evidence at the trial. If we were sentencing Mr Williams on this offence alone, in our view, the appropriate starting point for his offending would have been one of 12 months’ imprisonment. Mr Williams would have been entitled to a discount for his guilty plea. That plea however came relatively late in the day and we consider that a discount of one month, or just a little under 10 per cent, would have been appropriate. However, we do not consider that this offending requires a cumulative sentence. A concurrent sentence is more appropriate for the indecency in the library and for the attempt to dissuade the witness from giving evidence. Both sets of offending were connected and they arose out of the same event. In our view, the attempting to dissuade a witness offending is best recognised by adding an uplift of six months to the starting point for the indecency offending in the library. This takes the starting point both for the indecency offending in the library and for the attempting to dissuade a witness offending to one of 19 months.
The Judge gave Mr Williams a 15 per cent discount because his father was unwell and because his partner has health issues. She accepted that a prison sentence would be challenging for him. Such a discount was available under s 8(h) of the Sentencing Act 2002. The Judge saw the appellant and his partner at trial. She was better placed than we are to make that assessment and we do not depart from the discount she allowed. This takes the starting point on the indecency charge for the offending in Tay Street to 11 months, and on the other indecency charge and on the attempting to dissuade a witness charge to 16 months.
We agree with the Crown that there are no other personal mitigating factors. There is no clear remorse and there is nothing in Mr Williams’ background which reduces his culpability or which can be said to be causative of his offending.
It follows that the appropriate individual sentences are 11 months’ imprisonment for the offence of doing an indecent act in the shop in Tay Street, and 16 months’ imprisonment for the offence of doing an indecent act in the library and for the offence of attempting to dissuade a witness from giving evidence — a total of 27 months’ imprisonment. We would discount this global sentence by six months to recognise the totality principle. In our judgment, Mr Williams’ overall culpability, and the gravity of his offending, requires an overall sentence of one year and nine months’ imprisonment.
Result
The appeal is allowed.
The sentence of two years and 10 months’ imprisonment imposed by the District Court is quashed and a sentence of one year and nine months’ imprisonment is imposed in its place. Mr Williams is given leave to apply to commute the sentence to one of home detention.
Solicitors:
Eagles Eagles & Redpath, Invercargill for Appellant
Crown Law Office, Wellington for Respondent
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