Williams v The King
[2024] NZHC 593
•18 March 2024
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2024-425-002
[2024] NZHC 593
BETWEEN JONATHAN REX WILLIAMS
Appellant
AND
THE KING
Respondent
Hearing: 18 March 2024 Appearances:
J A T Ross for Appellant
M B Brownlie for Respondent
Judgment:
18 March 2024
ORAL JUDGMENT OF EATON J
(appeal against sentence)
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
WILLIAMS v R [2024] NZHC 593 [18 March 2024]
Introduction
[1] Jonathan Williams was sentenced to two years seven months’ imprisonment by Judge Harvey on 6 December 2023 following guilty pleas to charges of:1
(a)unlawfully possessing firearm (representative);2
(b)unlawfully possessing firearm (x2);3
(c)unlawfully possessing ammunition (representative x3);4
(d)unlicensed possession of ammunition (x2);5
(e)driving while suspended;6 and
(f)driving while forbidden (x9).7
[2] Mr Williams appeals against sentence. He says the District Court Judge failed to provide a discount to recognise the impact of parental incarceration and miscalculated the end sentence. The miscalculation is not contested on appeal.
Facts
[3] At about 3:00 pm on 20 January 2022, Mr Williams and a co-defendant were stopped by police whilst driving in Invercargill. Police impounded the vehicle due to it being involved in a fleeing driver incident on 11 January 2022. A patched Nomad vest was visible in the rear seat behind Mr Williams and underneath the vest was an archery bow. The vehicle was searched and the police located various firearms and rounds of ammunition as well as a methamphetamine pipe, scales and empty point bags. A cut off piece of gun barrel was found inside Mr Williams bag.
1 R v Williams [2023] NZDC 27226.
2 Arms Act 1983, s 45(1) – maximum penalty four years’ imprisonment, $5000 fine.
3 Section 45(1) – maximum penalty four years’ imprisonment, $5000 fine.
4 Section 45(1) – maximum penalty four years’ imprisonment, $5000 fine.
5 Section 22B – maximum penalty $10,000 fine.
6 Land Transport Act 1998, ss 32(1)(c) & 32(3) – maximum penalty three months’ imprisonment,
$4500 fine.
7 Section 52(1)(c) – maximum penalty $10,000 fine.
[4] On 7 July 2022, Mr Williams was served a driver licence suspension notice due to excess demerit points.
[5] On 17 August 2022, police located a vehicle that had previously been involved in a fleeing driver incident and was wanted for impound. Within the vehicle, police located a shotgun round. A warrantless search was invoked. Police located a red container with 24 yellow shotgun rounds, black Nomad t-shirts and Mr Williams’ driver’s licence. In the boot of the vehicle were various rounds of ammunition, two smart phones, a glass pipe and a BB gun.
[6] On 9 September 2022, Mr Williams was the driver of an unlawfully taken vehicle. He was arrested. When police recovered the car, they located many rounds of ammunition and an ammunition belt wrapped in t-shirts displaying the Nomads insignia.
[7] On 5 November 2022, the appellant was driving when stopped by police. Enquiries confirmed Mr Williams did not hold a current driver licence. Mr Williams was forbidden to drive until he obtained a current licence. Subsequently, on 14, 21 and 22 November 2022, 25 December 2022 and 1, 3, 7, 10, 11 January 2023, the appellant was captured on CCTV footage driving a vehicle.
[8] On 8 January 2023, Mr Williams accessed his personal Facebook account under the username ‘Flame Nation’. He posted a video of himself doing burnouts in his vehicle on a rural tar sealed road. He posted a second video showing himself seated in the driver’s seat of a vehicle parked at the local beach. The video shows Mr Williams loading then firing a black pump action shotgun out the driver’s window of the vehicle.
[9] On 10 January 2023, police applied for a search warrant to locate the shotgun seen in the video posted. On 13 January, the Invercargill Armed Offenders Squad were in the Wreys Bush area and observed Mr Williams’ vehicle. Mr Williams was arrested. Located in the car were firearms and ammunition as well as cannabis plant material, bongs for smoking, and 37 Ritalin tablets.
District Court Decision
[10] Judge Harvey firstly noted the “concerning” pre-sentence report. Mr Williams’ attitude towards his offending was seen as “casual”, breaching EM bail when it suited him. The Judge considered that despite entering guilty pleas, Mr Williams did not accept responsibility for his offending.
[11] The Judge described the offending as “very serious”. Not only was Mr Williams in the possession of a number of firearms, two had been modified. Having regard to the number of firearms, the amount of ammunition and the aggravating factors including Mr Williams’ gang connections, a starting point of three and a half years’ imprisonment was considered to be appropriate.
[12] A discount of 15 per cent was allowed for guilty pleas. The Judge had concerns about the self-reported nature of the s 27 report however allowed a deduction of 10 per cent to reflect background factors.
[13] The Judge declined to allow a discount sought of five per cent to recognise Mr Williams’ children would suffer due to his incarceration.
[14] Counsel had agreed there should be a further three-month discount for the time spent on EM bail. The Judge, as I assess it, was not entirely convinced that credit was deserved but allowed it regardless.
[15] Mr Williams was convicted and discharged on the driving while forbidden charges. On the charge of driving while suspended, he was disqualified from driving for six months. On the two charges of unlicensed possession of ammunition, he was convicted and discharged. On the unlawful possession of firearm charges, he was sentenced to a term of two years and seven months’ imprisonment. In relation to the unlawful possession of the ammunition charges, he was convicted and sentenced to a concurrent term of imprisonment of two years.
Principles on appeal
[16] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence will be successful only if the appeal Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.8 A court will not intervene if the ultimate sentence that was imposed is within the available range and is one that can properly be justified on the application of the relevant sentencing principles.9 When assessing whether the sentence being appealed is “manifestly excessive” the focus must be on whether the sentence actually imposed is within range, rather than the process by which that sentence was reached, or its constituent elements.10
Submissions
Appellant’s submissions
[17] On behalf of Mr Williams, Mr Ross first submits the sentencing Judge erred in not allowing any credit to reflect parental incarceration. He highlights that the Supreme Court in Philip v R found that the appellant was “an important presence in his young child’s life” and considered it was appropriate to allow a 10 per cent discount.11
[18] Mr Ross submits that Judge Harvey was made aware of Mr Williams’ link to his children and contends there was an adequate basis for the Court to find the appellant was an important presence in their lives.
[19] On appeal Mr Ross invites this Court to receive and consider, letters from Mr Williams himself, his father, his mother, his daughter and his partner. He accepts the letters will not be considered “fresh evidence” however, submits that the interests of justice require they should be admitted and reflected by a five per cent deduction. The children’s attachment to their father is said to be important and, it is submitted,
8 Criminal Procedure Act 2011, s 250(2) and (3).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; Ripia v R [2011] NZCA 101 at [15].
10 Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].
11 Philip v R [2022] NZSC 149.
his absence resulting from a sentence of imprisonment will adversely impact his parental relationship.
[20] In the letters, Mr Williams’ partner emphasises that the appellant plays an important role in his [redacted]12 daughter’s life, [redacted]. His father has provided an insight into Mr Williams’ life over the last few years and the troubles he has faced. His mother writes in concern for the daughter. She notes that Mr Williams has been “100% support to her” and that she is finding it hard without her father. Finally, Mr Williams’ daughter emphasises how much she misses her father.
[21] Mr Williams’ letter to the Court gives some insight as to his relationship with his daughter. He details the support he has provided to her [redacted]. He has enrolled her in an alternative education network to facilitate her learning [redacted] and he believes he has facilitated a stable environment for her. The appellant says his father is currently having to care for his daughter and his mother is now helping as his father recovers from shoulder surgery. He believes this is a responsibility of his and not for his parents to bear.
[22] The second and distinct ground of appeal relates to a miscalculation of the sentence. The Judge fixed a starting point of 42 months’ imprisonment and then allowed discounts of 15 per cent for guilty pleas and 10 per cent to reflect the s 27 report. That should have reduced the term to 31 and a half months before the term was further reduced by three months to reflect the appellant’s time on EM bail. The Judge imposed an end sentence of two years and seven months which equates to 31 months’ imprisonment. This was an arithmetical error. The intended end sentence was one of 28 and a half months’ imprisonment.
[23] Ultimately, Mr Ross submits there should be an additional five per cent deduction due to the impact on Mr Williams’ children which would result in an overall discount of 30 per cent prior to credit for the time spent on EM bail. From a starting point of 42 months, a 30 per cent discount equates to 12 and a half months, which, rounded down, reduces the end sentence to 26 months’ imprisonment.
12 Matters of a personal nature are redacted throughout the judgment.
Respondent’s submissions
[24] Mr Brownlie appears for the respondent. He opposes the application to admit the four letters on appeal, with reference to the Privy Council decision in Lundy v R.13 He submits that none of the letters are fresh in that they could have readily been obtained before sentencing. He accepts the Court can assess their potential impact on the end sentence when determining their admissibility.
[25] With regards to the impact of parental incarceration, Mr Brownlie observes that there is now a growing body of case law considering the impacts of an offender’s incarceration on their children. He submits that primarily the Court will be inclined to allow a discount to reflect that factor in cases of the cusp of a sentence of imprisonment.
[26] Mr Brownlie submits that the Judge was aware of the appellant’s relationship with his children through the sentencing submissions filed for the appellant, the cultural report and the PAC report. The PAC report records that the appellant has six children from three different relationships who are permitted to stay with him in the school holidays. The author of the cultural report could not make contact with the appellant’s family to have the information corroborated however the letters filed on appeal contain information about the appellant’s daughter who has recently begun living with the appellant and his parents. He submits that the information before the District Court established that the appellant’s children could not see him for a period of time while he was in prison. But this, in and of itself, does not justify a discrete discount.
[27] Mr Brownlie encourages the Court to exercise caution in considering the contents of the letters. He submits that in some parts the information provided in the s 27 and PAC reports does not sit entirely comfortably with the information provided in the letter written by the appellant from prison.
[28] Mr Brownlie submits if the Court forms the view that a discount was appropriate to reflect the effect of the appellant’s imprisonment on his children, then
13 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.
the enquiry must still focus on whether the end sentence was manifestly excessive. He submits, as observed by the Judge, this was “very serious offending”. The appellant has a casual attitude to the charges he pleaded guilty reflecting a lack of remorse. Mr Brownlie contends the discount allowed of 15 per cent for the guilty pleas was generous, given there was a delay of over 12 months when entering guilty pleas.
[29] He accepts that there was an arithmetical error made by the Judge that must be corrected on appeal.
Analysis
Miscalculation
[30] The Court of Appeal in Ferris-Bromley v R confirmed the position the appellate court should take regarding mathematical errors made in sentences.14 A mathematical error resulting in a sentence more severe than the Judge intended must be corrected, even if the sentence imposed was within the available range.15 In the case of plain error, it would be unjust for that error to be left uncorrected.16
[31] Here, it is clear there has been a mathematical error that has resulted in a sentence that is more severe than the Judge intended and therefore it must be corrected. The correct end sentence, before considering the second ground of this appeal, is 28 and a half months’ imprisonment.
Fresh evidence
[32] Mr Williams submits that it is in the interests of justice to admit the four letters on appeal. Counsel submits that if the Judge was of the view the evidence of Mr Williams’ relationship with his children was not clear, then it was open to the Judge to have adjourned the sentencing. I take issue with that submission. I consider it was counsel’s responsibility to ensure all relevant material was before the sentencing Judge. A sentencing hearing is not an opportunity for the Court to indicate to counsel whether the material provided is sufficient to achieve a desired outcome, and then to
14 Ferris-Bromley v R [2017] NZCA 115.
15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
16 Koroheke v R [2012] NZCA 368 at [21].
adjourn the hearing if the material falls short. Mr Williams’ relationship with his children and the impact his impending incarceration on that relationship was very much a live issue before the District Court.
[33] I am satisfied the issue was addressed through the written and oral submissions presented by Mr Ross, by the cultural report and through the pre-sentence report. The letters Mr Ross seeks to admit on appeal are not fresh in any sense. Rather, they reflect an attempt to have a second bite at the cherry in terms of securing a credit for parental incarceration. I am not prepared to admit the letters on appeal.
Parental incarceration
[34] Notwithstanding, the appellant still seeks a five per cent discount for the impact of his incarceration on his children. Mr Ross acknowledges that the children have other family members but says their attachment to their father is important and his incarceration would have an adverse impact on the children. In particular, Mr Williams is concerned about his daughter who is [redacted] reliant on Mr Williams for support.
[35] In Sweeney v R, one of the grounds of appeal was that a sentence of imprisonment should be reduced to recognise Mr Sweeney was a solo parent to his young children.17 His partner had died in a car accident meaning he assumed full-time responsibility for his son, aged four and his daughter aged six. His pre-sentence report noted the trauma that his children had experienced after the loss of their mother and the fear that they have of losing him as well. The Court determined that Mr Sweeney was an important presence in his children’s lives, and it was in their best interests to grow up in a familial environment. Further, the material before the Court indicated that there was a close relationship between Mr Sweeney’s rehabilitation and his relationship with his children. The Court would have allowed a discount of 10 per cent in recognition of this issue.
[36] Section 8 of the Sentencing Act 2002 requires the Court to consider the offender’s personal family background when imposing a sentence and the
17 Sweeney v R [2023] NZCA 417.
Supreme Court in Philip v R said the impact imprisonment has on an offender’s children is a relevant factor in considering the appellant’s personal circumstances.18
[37] The admissible material before the Court indicates that Mr Williams has six children from three different relationships. He has good relationships with the mothers of these children and, prior to his incarceration, would see the children in the school holidays. I am prepared to proceed on the basis that he was the primary care giver for his daughter [redacted]. The report confirmed that he has broader familial support.
[38] The authorities have established that factors relevant to determining whether a discount is appropriate include the importance of children growing up in a familial environment, it includes the absence of remorse, a lack of rehabilitative steps taken, whether a defendant is the primary caregiver of the child, and the nature and seriousness of the offending. Other relevant circumstances are whether the defendant is the family breadwinner, whether the loss is of a supportive presence in the family home, the strength of the bond with the child and the impact imprisonment may have.
[39] I have no doubt it is important for children to grow up in a familial environment. I also have no doubt Mr Williams’ relationship, particularly with his daughter for whom he has been the primary caregiver is strong and important. But he is not the solo parent for any of his children. Whilst he has assumed the position of primary caregiver, I do not believe this outweighs the seriousness of his offending and the lack of remorse that he exhibits. Further, in the material I have considered, there is no evidence of a connection between his rehabilitation and his relationship with his children. In those circumstances, I am not satisfied a discount should have been allowed.
[40] Even if I had found it appropriate to admit the letters on appeal, I would have reached the same conclusion.
18 Philip v R, above n 11.
Result
[41] Ultimately, I do not find that the end sentence, subject to mathematical correction was manifestly excessive.
[42]The appeal is allowed to the extent that the mathematical error is corrected.
[43] The sentence of two years and seven months’ imprisonment is quashed and substituted with a sentence of two years and four months’ imprisonment.
...................................................
Eaton J
Solicitors:
PR Law, Invercargill
Counsel:
J A T Ross, Barrister, Invercargill
8
0