Williams v R - [2021] NZCA 54

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA140/2020
[2021] NZCA 54

BETWEEN	MICHAEL WILLIAMS Appellant
AND	THE QUEEN Respondent

Hearing:	22 February 2021
Court:	Courtney, Mallon and Wylie JJ
Counsel:	RGR Eagles for Appellant MRL Davie for Respondent
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.

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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…

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 R

Details

AGLC: Williams v R [2021] NZCA 54
Case: [2021] NZCA 54
Decision Date: 10 March 2021 at 10.30 am

CaseChat Overview and Summary

Michael Williams appeals his sentence for performing indecent acts, trespassing, and attempting to dissuade a witness. The Crown opposes the appeal, arguing that the sentence is within the available range and appropriately reflects Mr Williams' culpability. The Court of Appeal finds that the sentence is manifestly excessive and allows the appeal. The sentence imposed by the Judge was manifestly excessive, particularly given the lack of premeditation and the nature of the offending. The Court of Appeal considers that a starting point in the range of 12 months' imprisonment was appropriate for the indecent acts, and an uplift of one month for Mr Williams' criminal record. For the charge of attempting to dissuade a witness from giving evidence, the Court of Appeal considers that a starting point of 12 months' imprisonment was appropriate, with an uplift of six months for the gravity of the offending. The Court of Appeal discounts the global sentence by six months to recognise the totality principle and imposes an overall sentence of one year and nine months' imprisonment. The Court of Appeal allows the appeal, quashes the sentence of two years and 10 months' imprisonment, and imposes a sentence of one year and nine months' imprisonment, with leave to apply to commute the sentence to one of home detention.

Orders