Williams v The King
[2023] NZCA 637
•11 December 2023 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA515/2022 [2023] NZCA 637 |
| BETWEEN | ARMANI WILLIAMS |
| AND | THE KING |
| Hearing: | 2 November 2023 |
Court: | French, Thomas and Fitzgerald JJ |
Counsel: | E Huda and S C Kim for Appellant |
Judgment: | 11 December 2023 at 3 pm |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
In December 2021, Mr Williams caused the death of a young man by punching him so that he fell to the ground and hit his head. Mr Williams pleaded guilty to manslaughter and was sentenced by Nation J to three years’ imprisonment.[1]
[1]R v Williams [2022] NZHC 2206 [Sentencing judgment] at [56].
Mr Williams now appeals his sentence on the grounds it was manifestly excessive. His counsel, Mr Huda, says the Judge’s starting point was too high and insufficient credit was given for mitigating personal factors.
Background
The Crown summary of facts reads as follows:
At about 2.00am on Saturday 4 December 2021, the victim was in the carpark at Countdown on Moorhouse Ave, Christchurch along with a group of friends. There were in the vicinity of 30–50 cars gathered in the carpark.
The victim had travelled to that location in a vehicle with four associates.
The victim exited the vehicle to go to the toilet. He walked to some clothing bins near the corner of Madras Street and Moorhouse Ave to urinate.
At that time a vehicle has been passing east on Moorhouse Ave. The defendant was sitting on the windowsill of the right rear passenger seat, his torso out of the window and legs inside the car, so that he was able to look across the roof of the car towards where the victim was, and the victim was able to see the defendant.
The victim remarked to the defendant words to the effect “why are you looking at my dick?”
The vehicle did a U-turn, travelling a short distance west along Moorhouse Ave, before entering the Countdown car park. At this stage the victim had walked back to the vehicle he had travelled in.
The defendant got out of his vehicle, visibly agitated, and immediately approached the victim. The defendant said words to the victim, variously described by witnesses as:
-“what did you say cunt?”
-“stop talking shit”
-“I don’t know who this motherfucker is”
-“I don’t know who this cunt is”
The defendant forcefully punched the victim to the side of the mouth, causing the victim to fall backwards, the back of his head striking the ground.
The defendant kicked the victim in the leg and yelled angrily at him before returning to his vehicle and driving out of the carpark. Some witnesses refer to the kick occurring before the punch and others refer to it occurring after the punch, when the victim was on the ground.
The defendant returned, approximately ten minutes later, again sitting up out of the window of the same vehicle he was in earlier. The vehicle stopped briefly on Madras Street. At this stage, members of the public and the victim’s associates were performing first aid on the victim. The defendant yelled out words to the effect of “is he breathing?” “is he up yet?” Others in the carpark told him to leave before the car he was in drove away along Madras Street.
As a result of the punch, the victim fell to the ground causing the back of his head to strike the ground. This led to the catastrophic brain injuries. The injuries were not compatible with life.
The victim was transported to Christchurch Hospital where he was placed on life support. He was certified as brain dead, and his life support was turned off. The victim died at 4.40pm on Sunday 5 December 2021.
Mr Williams was originally charged with murder. This was downgraded to manslaughter in March 2022. He then sought a sentencing indication. The likely end sentence indicated was one of three years’ imprisonment.[2] Mr Williams accepted the sentencing indication and pleaded guilty.
[2]R v Williams [2022] NZHC 973 [Sentencing indication] at [18]. This was comprised of a starting point of five years with a likely reduction of one year for a prompt guilty plea and around one year for personal mitigating factors.
The sentence ultimately imposed was consistent with the sentencing indication. The Judge adopted a starting point of five years’ imprisonment which he then reduced by 12 months on account of the guilty plea and a further 12 months on account of Mr Williams’ youth and matters raised in a s 27 report.[3]
Was the starting point of five years’ imprisonment too high?
Arguments on appeal
[3]Sentencing judgment, above n 1, at [20]–[22], [45] and [52]–[53].
It was common ground that in sentencing for single punch manslaughter a distinction is drawn between two categories of single punch cases to which different methodologies apply. The first category is where the offender clearly intended to inflict serious injury. In those cases, the sentencer may begin by applying the R v Taueki sentencing guidelines for serious violent offending,[4] with an uplift to account for the fact that the offending resulted in death.[5] Having arrived at a starting point using that approach, best practice is for the sentencer to then undertake a cross-check by reference to comparator manslaughter cases.[6]
[4]R v Taueki [2005] 3 NZLR 372 (CA), where for the purposes of grievous bodily harm sentencing, this Court identified three sentencing bands, each containing a range of starting points. Which band any particular case falls into depends on the number of aggravating factors present.
[5]R v Tai [2010] NZCA 598 at [11]–[12]; and R v Jamieson [2009] NZCA 555 at [34].
[6]Everett v R [2019] NZCA 68 at [27]; and Ioata v R [2013] NZCA 235 at [25]–[28].
In the second category of cases — where there is no intention to cause serious harm — starting points are set solely by reference to comparator manslaughter cases.[7]
[7]R v Tai, above n 5, at [11].
The Crown says that the Judge’s starting point in this case aligns with band two of Taueki. Band two (which has a range of starting points from five to ten years’ imprisonment) is appropriate for grievous bodily harm offending which features two or three aggravating factors.[8]
[8]R v Taueki, above n 4, at [34] and [38].
It is clear the Judge in the present case took the view that the assault was an assault with a degree of violence where there was likely to be a serious injury and that accordingly Taueki was engaged.[9] The Judge identified the aggravating features of the offending as being:[10]
(a)the degree of premeditation;
(b)an assault on the head; and
(c)Mr William’s actions during the assault and immediately afterwards.
[9]See for example, sentencing judgment, above n 1, at [31].
[10]At [19] and [31].
Mr Huda appeared for Mr Williams at the High Court sentencing. The sentencing decision records Mr Huda as having agreed the offending merited a five year starting point.[11] However, on appeal, Mr Huda submitted five years was excessive and was the result of the Judge wrongly finding the punch was accompanied by an intention to cause really serious harm. In support of that central contention, Mr Huda said the Judge mistakenly framed the facts as a punch to the head while someone was walking away, rendering that person unconscious. Yet that was not how it was framed in the summary of facts to which Mr Williams pleaded guilty.
[11]At [20]. Mr Huda explained the reason he did not dispute the starting point at sentencing was because the Judge had already made a decision on the starting point in the sentencing indication.
Mr Huda further argued that in the absence of an intention to cause really serious harm, the typical starting point range for a single punch manslaughter case like this one is three and a half to four years’ imprisonment.
Our view
We agree that in summarising the facts of the offending at the sentencing (but not in the sentencing indication) the Judge wrongly described the punch as knocking the victim unconscious.[12] The correct position was that although eyewitness accounts of the way the victim fell were consistent with the victim being rendered unconscious, it was not possible to be certain forensically one way or the other.
[12]Sentencing judgment, above n 1, at [13].
However, on any view of the offending, it was an unprovoked, sudden and forceful attack to the head by an angry and aggressive assailant who had deliberately sought the victim out. The punch was preceded by the assailant kicking the victim in the leg,[13] and abusing him. The victim fell straight back. There was no staggering or stumbling around. That Mr Williams hit the victim hard was confirmed by the post mortem report[14] which noted bruising and a laceration to the victim’s internal left lower lip as well as external bruising in the lip and chin area. There was also bruising on his leg. As Mr Williams departed the scene, he continued to yell angrily at the victim as the latter lay on the ground.
[13]Mr Williams told the pre-sentence report writer that he kicked the victim before he punched him.
[14]As well as Mr Williams’ own admission to the pre-sentence report writer that he realised he had hit him hard.
In all those circumstances, we consider the Judge was entitled to draw an inference of an intention to cause serious harm and hence apply Taueki.
As regards other single punch manslaughter cases, several decisions were cited by the parties during the course of these proceedings. These other cases reveal — as is only to be expected — a variety of starting points, ranging from two years’ imprisonment to seven and a half years’ imprisonment.[15] The facts of this case while sharing some features with these other cases are not on all fours with any of them. However, in our assessment, Mr Williams’ offending has more in common with the cases where five year plus starting points have been imposed, such as Ioata v R,[16] Murray v R,[17] and R v Whaanga[18] than it does with the cases relied on by Mr Huda.[19] The punch in this case was not moderate. It was powerful. The victim did not stumble backwards but fell back on to hard ground without breaking his fall. It was a solo attack which involved a kick as well as a punch, not a group endeavour where others were encouraging Mr Williams. There was no degree of spontaneity, but rather an element of premeditation. There was no provocation. The victim had walked back to the vehicle he was travelling in. After the victim fell, Mr Williams did not render assistance but was abusive and left the scene despite appreciating the seriousness of the situation.[20]
[15]R v Hetaraka [2015] NZHC 2631 at [28], starting point of two years’ imprisonment; Everett v R, above n 6, at [29] and [39], starting point of seven years and six months’ imprisonment upheld on appeal; and Kepu v R [2011] NZCA at [23], starting point of seven years and six months’ imprisonment upheld on appeal.
[16]Ioata v R, above n 6, at [1] and [32], starting point of five years’ imprisonment upheld on appeal.
[17]Murray v R [2013] NZCA 177 at [15], [22] and [26], starting point of five years’ imprisonment upheld on appeal.
[18]R v Whaanga [2020] NZHC 1318 at [54], starting point of five years and six months’ imprisonment.
[19]R v Uhatafe [2023] NZHC 248, range of four to four and a half years’ imprisonment considered appropriate, victim seated, Palmer v R [2016] NZCA 541, four years’ imprisonment upheld on appeal, offender had taken LSD and cannabis, victim initially punched by an associate, group endeavour; and R v Nagel [2023] NZHC 2908, four years and six months’ imprisonment (although the Judge considered that under a strict Taueki approach a starting point of five years appropriate), group endeavour, fight with victim initiated by associate .
[20]Mr Williams did return some ten minutes later but then left again.
We conclude that a five year starting point, although arguably near the top of the available range, was nevertheless available to the Judge.
Were the discounts for personal mitigating factors inadequate?
No issue is taken on appeal with the discount of 20 per cent given for the guilty plea. What is challenged is the 10 per cent discount given for youth and the 10 per cent discount for cultural and social factors identified in the s 27 report.
Mr Williams was aged only 16 at the time of the offending and while in custody had been diagnosed by the Youth Forensic Team as having an attention deficit disorder. The s 27 report disclosed a deprived childhood and loss of connection with his Māori identity. Mr Williams had been exposed to domestic abuse and drug use from very early on in his life, he was placed in state care at the age of six, and had lived in a series of foster homes, attending some nine schools and frequently running away. He had a four year period of relative stability living with one foster family. They loved him and were still willing to support him, but had become unable to manage his increasingly anti-social behaviour.
We accept, as emphasised by Mr Huda, that greater youth discounts have been granted in other cases of violent offending, including for example Diaz v R where this Court held a 30 per cent discount was appropriate.[21]
[21]Diaz v R [2021] NZCA 426 at [40] per Thomas and Wylie JJ.
However, the extent to which the rationale for giving youth discounts (principally neuropsychological difficulties and rehabilitation prospects) is present in any given case will obviously vary, and accordingly so too will the size of the discount. In this case for example, as already mentioned Mr William’s offending had an element of premeditation. It was not an impulsive reaction to a volatile situation. Nor was it caused by peer pressure.
Further, Mr Williams was not a first time offender. Despite his age, he had a history of violent offending, violent behaviour continuing during his time in custody before sentence on the index offence. While in custody he also wrote a rap, which he posted on social media, bragging about the manslaughter. He was assessed in the pre-sentence report as being of medium risk of further offending and high risk of harm to others given his propensity for violence.
Taking all those circumstances into account, the size of the discount in this case was in our view justifiably limited due to the intrinsic seriousness of the offending and aggravating features.[22] Other judges may well have given a discount of more than 10 per cent, but we are not persuaded the Judge in this case can be held to have erred in granting the discount he did.
[22]See Harris v R [2023] NZCA 462 at [26]–[27].
As regards the adequacy of the 10 per cent discount for social and cultural deprivation, we acknowledge that in his childhood Mr Williams clearly experienced some of what the Supreme Court in Berkland v R described as the criminogenic risk factors that consistently correlate with offending later in life.[23] There can, in our view, be little doubt that Mr Williams’ upbringing contributed in a causative way to his offending, notwithstanding the four year period in a stable loving household. On the other hand, while his personal background does at least partially explain the offending, we must also recognise that his offending was serious offending which resulted in a loss of life and lifelong suffering for a grieving whānau.
[23]Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [116].
Weighing up all those factors and the competing sentencing objectives is a matter of judicial evaluation and discretion. As with the Judge’s discount for youth, we accept that another judge faced with the circumstances of this case may well have given a bigger discount, but of itself that does not equate to error.
Was the end sentence manifestly excessive?
Ultimately of course it is the end sentence that is the proper focus of an appeal and not the way in which the sentencer arrived at it.[24] Standing back and assessing the sentence against applicable sentencing purposes and principles, as a matter of overall impression, we are not persuaded that the prison term of three years for the offending by this offender was manifestly excessive. Appellate intervention is therefore not warranted.
Outcome
[24]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
The appeal against sentence is dismissed.
Solicitors:
Crown Solicitor, Christchurch for Respondent
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