Williams v The Queen
[2020] NZHC 207
•19 February 2020
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2019-419-000089
[2020] NZHC 207
BETWEEN TEWA PARI WILLIAMS
Appellant
AND
THE QUEEN
Respondent
Hearing: 3 February 2020 Appearances:
G Boot (on behalf of M James) for Appellant R Mann for Respondent
Judgment:
19 February 2020
JUDGMENT OF LANG J
[on appeal against conviction and sentence]
This judgment was delivered by me on 19 February 2020 at 3.30 pm.
Registrar/Deputy Registrar Date……………
WILLIAMS v R [2020] NZHC 207 [19 February 2020]
[1] Following a Judge alone trial in the District Court, Mr Williams was convicted on charges of threatening to kill, assault with an intent to injure (x 2), kidnapping, sexual violation by unlawful sexual connection and sexual violation by rape.1
[2] On 8 November 2019, Judge K B F Saunders sentenced Mr Williams to eleven years three months imprisonment.2
[3]Mr Williams appeals against both conviction and sentence.
The charges
[4] Mr Williams and the complainant had been in an “on again off again” relationship for some time at the time of the alleged offending. They met when they were living in the same camping ground and a sexual relationship subsequently developed. The charges were laid as a result of two separate incidents that occurred in 2015 and 2018.
The 2015 charges
[5] The incident giving rise to these charges occurred when Mr Williams and the complainant were staying at Mr Williams’ mother’s home in Kopu. Mr Williams and the complainant became involved in a verbal argument. The complainant alleged he told her “I’m going to kill you, you bitch”. He then threw her onto the bed in his mother’s bedroom before closing the door. A struggle then ensued in which the complainant described Mr Williams wrapping his arm tightly around the left side of her neck. She was lying on the bed in a face-down position and Mr Williams had his arm around her neck in a forceful manner. The complainant said she continued to struggle and was eventually able to leave the room.
[6] This incident led to charges of threatening to kill and assault with intent to injure. Mr Williams accepted he and the complainant had an argument whilst they were staying at his mother’s address but denied he had threatened to kill her or that he inflicted any violence on her.
1 R v Williams [2019] NZDC 15182.
2 R v Williams [2019] NZDC 22432.
The May 2018 charges
[7] These charges were laid after the complainant described a series of incidents that occurred over a three day period between 6 and 8 May 2018. She said that during this period Mr Williams stayed at her home in Thames and effectively kept her hostage at the address.
[8] The first incident occurred whilst the complainant was standing at the stove in the kitchen. She said Mr Williams struck her in the head from behind and then punched her again several times in the head. The blows were of sufficient force to cause significant swelling to her forehead. The complainant said Mr Williams then forced her to the floor and began twisting her neck so that it became very difficult for her to breathe. He accomplished this by placing his arm tightly around her neck and squeezing her neck with his forearm.
[9] This series of events gave rise to a representative charge of assault with intent to injure relating to the blows struck to the complainant’s head, together with a further charge of assault with intent to injure through the application of force to the complainant’s neck.
[10] The charge of kidnapping was laid because the complainant alleged she had been effectively kept a prisoner in her own home between 6 and 8 May 2018. The complainant said Mr Williams refused to let her leave the address other than on one occasion on 8 May 2018 when she was allowed to accompany him to a fast food restaurant. She said he would follow her as she walked about the house and he instructed her not to stand near any windows so as to avoid persons walking past the house seeing the injury to her head.
[11] The charges of sexual violation were laid because of an incident the complainant described occurring on 7 May 2018. The complainant said Mr Williams became angry because he believed she had been sleeping with another man. He took her to a bedroom and forced her to bend over a brown leather chair that was sitting against the wall in the bedroom. The complainant said Mr Williams then inserted fingers from both hands into her anus to ascertain whether another man’s semen was present. The complainant said she did not consent to this and begged Mr Williams to
stop. Thereafter the complainant said Mr Williams threw her onto the bed and forced her legs apart using his knees. He then had sexual intercourse with her without her consent.
[12] The Judge found Mr Williams guilty on all these charges. She found him not guilty, however, on two further charges of sexual violation arising out of an incident that allegedly occurred on 8 May 2018. This largely mirrored the earlier incident in which Mr Williams sexually assaulted the complainant after a discussion about whether she had been sleeping with another man. The complainant had described the second incident during an evidential interview undertaken on 9 May 2018 but she was unable to recall it when she gave evidence at trial.
The Judge’s decision
[13] After describing the elements of each charge and the onus of proof the Judge observed that the case essentially involved “an analysis of the honesty, reliability and credibility of the witnesses as opposed to any detailed analysis of the law”.3 As a result, she said that if the complainant’s evidence was accepted, it was likely that the legal elements of all charges would be proved. The Judge said that for this reason both counsel had focussed in their closing submissions on the evidence and credibility of the principal witnesses.
[14] After setting out the evidence relevant to each charge and the respective positions of the Crown and defence the Judge found all but two of the charges proved for the following reasons:4
[69] I have seen the complainant give evidence and observed her under cross-examination and I have seen Mr Williams give evidence and observed him under cross-examination.
[70] I found the complainant to be a reliable witness and compelling from the point of view that I accept her evidence that Mr Williams assaulted her intending to injure her in the manner alleged, subject to charges 3 and 4.
[71] I also find Mr Williams intentionally detained her in her home. I accept her evidence she was not free to come and go as she pleased, but that she remained there without her consent and Mr Williams knew that,
3 R v Williams, above n 1, at [10].
4 R v Williams, above n 1.
controlling her by the use of force and threatened force for a period of days between 6 and 8 May 2018 (charge 5).
[72] Further that he sexually violated her by the introduction of his finger/s into her anus on the first occasion followed by penetrating her vagina with his penis. That is charges 6 and 7. I accept her evidence she did not consent on either occasion and given her verbal and physical responses to the sexual activity by saying no in the various ways she did, and trying to push him off her, I am satisfied there is no basis for Mr Williams to have believed on reasonable grounds she was consenting.
[73] Equally, I found her to be a reliable witness and accept her evidence in its entirety that there was an assault as she said and a threat to kill at Mr Williams’ mother’s home in 2015 (charges 1 and 2).
[74] I am however troubled by the complainant’s inability to recall in evidence the second incident she described in her evidential video interview of sexual violation by unlawful sexual connection and by rape that she said occurred on the day they went into town and ate McDonalds.
[75] I appreciate she gave evidence relating to that sexual conduct with Mr Williams when interviewed on 9 May 2018 – that is the day she said she was able to make her escape, so the events were fresh in her mind. Equally, I accept that she viewed her eventual video interview before giving evidence at this Judge alone trial. while I cannot conclude that she made up those allegations and there is clearly no reason for her to have embellished her evidence or to have invented those two occasions if they did not occur, I do remain troubled by her inability to recall either incident particularly after she had seen her evidential video interview and refreshed her memory.
[76] That means that I have a doubt on those two charges and the benefit of that doubt must go to Mr Williams.
[15] Mr Williams gave evidence at the trial but the Judge rejected it in the following passage:5
[77] Having said that however, I have rejected his version completely. I found his evidence before me to be incoherent, rambling, implausible and the changing narrative bore all the hallmarks of somebody making up a story as he went along. Indeed, some of the evidence was truly bazar [sic], for example, the twin Siamese sisters he claimed were attached to his feet, and fundamentally his reason for examining her anus that he needed proof she was cheating on him defies belief. I am satisfied he was indeed jealous and possessive of the complainant, believing she had been unfaithful to him and that is the reason why he acted towards her in the ways she described over those days in May 2018. His comment to Sergeant Hill is telling and I reject his denial to the contrary. Ultimately as he said in evidence before me “all I wanted was the answers and I’d leave” and that is quite consistent with the sense of entitlement he exhibited in his interview with Detective Leatham.
5 R v Williams, above n 1.
[78] I reject the cumulative evidence of the defendant and the denials given to the police at the time and in this Court.
The appeal against conviction
Appellate approach
[16] There is no dispute regarding the approach an appellate court must now take to a first appeal against conviction. In Sena v Police, the Supreme Court confirmed that conventional appellate principles apply to such appeals.6 This requires the appellate court to reach its own decision regarding the correctness of the judgment subject to appeal. The onus is on the appellant, however, to demonstrate error on the part of the Court below. As always, an appellate court will exercise “customary caution” when assessing any challenge to findings based on credibility where the trial Judge has the advantage of seeing and hearing the witnesses.7
Grounds of appeal
[17] The principal ground advanced by Mr Williams in support of his appeal is that the Judge should not have concluded that the complainant was a credible witness and should have been left in a state of reasonable doubt on all charges. As a result, Mr Williams contends the verdicts were unreasonable and against the weight of the evidence, and that the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred.8
[18] On Mr Williams’ behalf Mr Boot submits that the Judge failed to properly analyse the evidence and explain why she preferred the evidence of the complainant to that of Mr Williams. As a result, he contends the Judge failed to provide a reasoned judgment of a type that is essential to a fair trial. Instead, she provided only a conclusory credibility preference of a nature that the Supreme Court in Sena said was unlikely to suffice.9
6 Sena v R [2019] NZSC 55, [2019] 1 NZLR 575.
7 At [38]-[40].
8 Criminal Procedure Act 2011, s 232(2)(b).
9 Sena v R, above n 6, at [36].
Decision
[19] I acknowledge that the conclusions the Judge reached in the passage set out above at [14] do not contain an in-depth analysis of the reasons why the Judge accepted the complainant’s evidence. That passage cannot, however, be viewed in isolation. The Judge had earlier directed herself10 as to the manner in which she needed to approach the assessment of the evidence and Mr Boot does not challenge the correctness of these directions. They included the following:11
[30] It has been necessary for me to consider the honesty, reliability and credibility of each witness. Clearly, I do not have to accept everything that a witness says or reject everything that a witness says. I am entitled to accept and reject parts of what a witness said in their evidence and in considering the evidence of each of the witnesses, I have considered the reasonableness, coherence and probability of it. I have also considered their evidence in terms of whether it is consistent with or is supported by other evidence or whether it is inconsistent with and not supported by other evidence. But by its very nature, sexual offending does not generally occur in public within the view of witnesses and this case is no exception.
[20] It may often be difficult to articulate why the evidence of one witness is to be preferred to that of another in cases where there is little by way of supporting evidence and where, as here, the acts alleged did not occur in public. In the present case, however, I consider several aspects of the complainant’s evidence enhanced its credibility. There was also a considerable body of other evidence to support the complainant’s version of events.
[21] I have viewed both the evidential interview given by the complainant to the police on 9 May 2018 and the videotaped interview undertaken by the police with Mr Williams on the same date. I have also read the transcript of the evidence given at trial by all the witnesses called for the Crown and defence, and I have seen the photographic exhibits. This exercise has enabled me to reach my own conclusions regarding the credibility and reliability of the critical evidence independently of those reached by the Judge.
[22] The complainant’s evidence-in-chief at trial was adduced through a videotaped evidential interview undertaken on 9 May 2018 supplemented by oral evidence. The
10 R v Williams, above n 1, at [26]-[30].
11 R v Williams, above n 1.
version of events given by the complainant in her evidential interview is both extremely detailed and compelling. From the beginning of the interview she spoke virtually without interruption. It was barely necessary to the interviewer to ask any questions even by way of clarification or elucidation. It is highly unlikely, in my view, that the complainant could have given such a detailed account of events if they did not occur.
[23] Secondly, the evidence given by the complainant at trial was remarkably consistent with that contained in her evidential interview. The only exception to this related to the final incident that the complainant described in her evidential interview. At trial she could not recall this incident at all.
[24] Mr Boot contends the complainant’s inability to recall the final incident tainted or called into question her credibility and reliability in relation to all charges. I disagree. The trial occurred more than a year after the series of events that allegedly occurred in May 2018. I do not consider it particularly surprising that a person in the complainant’s position was unable to recall one incident that was very similar to another that she did recall. The Judge was obviously not prepared to convict Mr Williams on the charges relating to this incident based on the evidential interview alone and that was entirely appropriate. I do not accept, however, that the complainant’s inability to recall the final incident meant the Judge was also required to reject the complainant’s evidence on the remaining charges.
[25] In addition, Mr Williams accepted, or partly accepted, the complainant’s version of events on several material points. He appeared to recall the incident that occurred in 2015 because he accepted there had been an argument when he and the complainant were living with his mother at Kopu although he denied there had been any violence.
[26] In his police interview regarding the May 2018 incidents Mr Williams acknowledged he had punched the complainant in the head with a closed fist once or twice whilst they were in the kitchen. He said he did so because he was jealous and wanted her to admit she had been involved with other men. He also said that this tactic succeeded, and she confessed to cheating on him “with heaps of guys”. At trial
Mr Williams changed tack somewhat. Although he still accepted he struck the complainant whilst she was in the kitchen, he said this occurred after she had insulted him by calling him a coward. He denied punching her, however, and said he had struck her once in the back of the head with his forearm.
[27] Mr Williams also acknowledged the complainant had an injury to her forehead shortly after this. Bizarrely, he said she caused this herself by banging her head on the corner of the fridge whilst she was in the kitchen.
[28] Mr Williams said in evidence the complainant then left the kitchen and went into the hallway. He said that they had a “playfight” in the hallway before she went into his bedroom of her own accord. Mr Williams said he went into the bedroom to find the complainant bending over the brown leather chair. He said he rubbed her body and buttocks with a finger and could see another man’s semen on them. He then began asking further questions about whether she had been seeing another man. Mr Williams denied inserting his fingers into the complainant’s anus, however, and said she would never have allowed this.
[29] Mr Williams altered his stance somewhat during cross-examination because he appeared to accept he had inserted his finger in the complainant’s anus quickly before she pushed it away:
Q. And it is correct that you put your fingers into her anus, isn’t it?
A. Not into – more or less up against.
Q. More or less up against?
A. Up against her buttocks.
Q. Right well in your interview –
A. Yeah.
Q. - you admitted to putting your finger into her bum, didn’t you?
A.Yeah I think you know it so loose that it may have just went in there when I wiped up, wiped her up.
Q. Went into her anus?
A. Wiped her.
Q. So you’re indicating with your index finger pointing up as though you’re beckoning towards someone in the witness box are you?
A. Yes.
Q. And you’re saying that when you’ve done that your finger’s gone into her anus?
A.Yes, yes, I like, went like – I did it pretty quickly because she pushed me away. She didn’t like me touching her.
Q. Yes just hang on. You’re accepting though –
A. To was real quick.
Q. Pause, that your finger went into her anus?
A. No.
Q. Well you just did accept that?
A.Yeah, yeah but it, it went up it. It didn’t go in it, like it didn’t go in like that, it went like that.
Q. All right so just pause, pause.
A. So then like, see how it goes like that.
Q. Pause just freeze for a minute because we need to put that into the
record okay so just don’t keep going yet?
A. Okay oh yeah.
Q. So you’ve indicated that your finger didn’t go –
A. In like that.
Q. I’m just trying to get into the record what you’ve said –
A. Okay.
Q.- by demonstrating it. Your finger didn’t go right up inside her anus right the length of her, of your finger. Is that fair? So you’re saying it didn’t go right up so your whole finger was in her anus?
A. Well it wasn’t to insert yes.
Q. So rather than being a whole finger right up in her anus, you say it was what?
A. I wiped, I wiped her bottom and I wiped with my finger up like that.
Q. And that’s how your finger went in, but it didn’t go right up the whole way?
A. Oh yeah, that’s – I think so sorry.
Q. Is that what you’re saying?
A. Yeah.
[30] This may be contrasted with the version of events Mr Williams gave in his police interview. The transcript of the interview records the following exchange:
ML No what, what makes you say it’s somebody else? TW Because I do not touch her bum.
ML Mmm.
TW Her bum’s got semen in it. ML Mmm.
TW I do not touch her bum.
ML How do you know it’s got semen in it?
TW Case closed. I do not touch her bum but she does not let me in there. ML Mmm.
TW I touched it with my finger, there’s other man’s semen in there. ML And when did you do that?
TW Two nights ago.
ML Yeah. And why did you do that?
TW To check her to see if she’s been violated or been cheating on me that’s why I asked her, have you been cheating on me, who have you been cheating with?
ML Mmm. And where did that happen?
TW I mean, I’m just going to handle it, be a man and handle it, can you tell me who it is [J]?
ML So when you put your finger in, in her bum.
TW Mmm. And come out with somebody else’s semen.
ML Ok.
TW Yeah.
ML So where did that happen, whereabouts. TW In the bedroom.
ML In the bedroom. TW Consentedly.
…
(Emphasis added)
[31] Later in the interview the detective conducting the interview returned to this topic and the following exchange occurred:
ML Ok. Did you do anything to her in the bedroom then? TW No.
ML You didn’t violate her then? TW Nah.
ML She said that you forced her onto the chair, is there a chair in the
bedroom?
TW No.
ML She’s told us that you put some fingers.
TWNo, no, what, what that is, is um, I asked her can I check you, let me do, let me show you something, let me show you something [J] and I put my finger in her bum and I said look, there’s other men’s come how did it get in there? She doesn’t have a clue.
ML Mmm.
TW She doesn’t have a clue, have a clue how the come got in her arse.
ML How many fingers did you put inside her?
TW It’s fucking. One. She doesn’t like being touched there, why is there man’s come up there? Who the fuck has violated, that’s how passionate I am about her.
ML Yeah, don’t need to yell, alright ok I can, under, I can appreciate your right.
TW It’s really, really hurting me inside, it’s, it’s not me it’s inside exploding.
ML Alright it’s just ok we’ll just keep our voices down a little bit and stay calm eh.
TW Yeah.
ML Cool. So after, after you put your finger in her bum and you’ve asked her about why there’s other men’s semen inside her.
TW Well who is this yeah?
…
[32] I consider the highlighted passages from these exchanges amount to express acknowledgements by Mr Williams that he inserted his finger into the complainant’s anus and discovered another person’s semen as a result. He also made it clear he knew the complainant would not consent to him inserting anything in her anus. They therefore provide considerable support for the complainant’s evidence on the first sexual violation charge.
[33] In addition, Mr Williams acknowledged in both his police interview and in evidence that he and the complainant had sexual intercourse shortly after this incident. In evidence he expanded his explanation by saying the complainant got up onto the bed and lay face down. She then turned towards him with a smile and said, “Make me ejaculate”. He says he accepted her invitation and had consensual sexual intercourse with the complainant on the bed.
[34] I consider Mr Williams’ evidence in relation to both incidents meant the only real issue the Judge was required to determine was whether the complainant had consented to what occurred. Like the Judge, I have no doubt that Mr Williams’ version of events was highly improbable and should be rejected. The complainant’s evidence that she did not consent to either act accurately reflects the true position.
[35] Importantly, too, Mr Williams accepted the complainant was correct in saying he instructed her not to go near the windows of the address whilst she was detained there. Mr Williams acknowledged in evidence he had told the complainant not to go near the windows because he did not want other persons seeing the bruising to her head. He said he was concerned that passers-by might believe he had inflicted those injuries when that was not the case. Again, I consider this to be an improbable explanation. A far more likely explanation is that he did not want passers-by to see the injuries he had inflicted on the complainant in the kitchen. It therefore provides obvious support for both the kidnapping charge and the assault charge relating to the incident in the kitchen.
[36] The medical evidence also supported the complainant’s version of events. The complainant had been examined by a doctor on the evening of 9 May 2018. The doctor’s evidence was admitted by consent at the trial and the Judge summarised it as follows:12
[61] Dr Whitehead examined the complainant on 9 May 2018 at about 5.30 pm. Examination of her body revealed injuries to her head that included a swollen and tender left eye socket together with tenderness of her forehead at that left side and behind her left ear and a swollen and tender lower lip. There were bruises on her right leg, a bruise on her thigh, a bruise on her knee and a bruise on her shin. Her left upper arm also had bruises on it. There was a bruise on the shoulder tip and two bruises on the side of her upper arm.
[62] Dr Whitehead was of the opinion that the bruises were caused by impact with a blunt force, but she could not comment on the timing of the bruises other than to say they could have been sustained during the alleged assault, but other time frames could not equally be excluded. As to the swelling and tenderness, she was of the opinion that it indicated recent trauma to the areas as to the likely cause although again other causes are possible.
[37] Taking all these factors into account I consider there was a considerable body of evidence supporting the complainant’s version of events and casting doubt on the explanations given by Mr Williams. As the Judge observed,13 some aspects of Mr Williams’s evidence were bizarre. The most extreme example occurred during cross-examination when Mr Williams was seeking to clarify answers he had given to questions about whether he had punched the complainant in the head whilst they were in the kitchen. The trial transcript records the following exchange:
Q. No, if you’ve got a bit more to add to your answer you feel free.
A.If another one is my Siamese twin sister’s that can wield my body when I’m unaware of them moving my body with the anger and hatred they have for her because I have twin sisters and they’re Siamese twins, we’re joined by the feet and, yeah, they don’t, I don’t think they like her at all. We, we connected, being Siamese twins and yeah they sort of make me do things that I don’t want to do sometimes when I’m not aware of it, when I’m not strong enough to hold them back but the three of them, ‘cos there’s four, we’re all joined by the feet because my mum told me when I was 15 she found she, I was old enough to be told that I had twin sisters but I’ve always had, wanted to known when I was a baby that I had these cut marks on my feet and I didn’t know what they were. That could be the other thing.
12 R v Williams, above n 1.
13 At [77], set out above at [15].
It is not surprising that the Judge described Mr Williams’ evidence as being incoherent, rambling and implausible.14
[38] I therefore do not accept the submission for Mr Williams that the Judge’s verdicts were unreasonable or against the weight of the evidence. Nor do I consider the Judge erred in her assessment of the evidence to the extent that a miscarriage of justice has occurred. Based on the evidence given by the complainant, and supported by Mr Williams’ partial admissions, I consider the Crown proved each of the elements of each charge beyond reasonable doubt.
[39]The appeal against conviction cannot succeed.
The appeal against sentence
[40] Not surprisingly, the Judge took the lead charges as being those involving non- consensual penetration of the complainant’s anus by Mr Williams’ fingers and the rape that followed. The Judge held that this offending fell towards the top of rape Band 2 or the bottom end of rape Band 3 identified in R v AM.15 The Judge selected a starting point of 12 years imprisonment to reflect the May 2018 charges and then gave a discount of ten per cent, or one year three months, to reflect mental health issues from which Mr Williams suffers. The Judge imposed a cumulative sentence of six months imprisonment on the charges relating to the offending in 2015. This resulted in the end sentence of 11 years three months.
[41] Mr Boot contends on Mr Williams’ behalf that the starting point of 12 years imprisonment was too high, and that a starting point of ten years imprisonment would have been appropriate to reflect Mr Williams overall culpability. He does not take issue, however, with either the uplift applied for the 2015 offending or the discount applied for the May 2018 offending. Mr Boot therefore submits an appropriate end sentence would be in the vicinity of nine years six months imprisonment.
14 R v Williams, above n 1, at [77] (set out above at [15]).
15 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
[42] Rape Band 2 identified in R v AM calls for a starting point of between seven and 13 years.16 Offending within this band will involve levels of violence and premeditation that are, in relative terms, moderate.17 The band covers offending against a vulnerable victim, as well as situations where an offender acts in concert with others and/or additional violence is used in committing the offence.18 Starting points at the higher end the band will apply to offending that has two or three of the factors that increase culpability to a moderate degree.19
[43] Mr Boot submits the starting points selected in two of the cases cited in R v AM are examples of offending within rape Band 2 are relevant in the present case. These are R v Anderson20 and R v Hannagan.21 Starting points of eight and ten years respectively were selected in those cases. As the Court of Appeal pointed out in AM, however, cases cited within the judgment are merely examples of the types of offending that will fall within particular bands. The sentences imposed in those cases is of little relevance because they are likely to involve a different sentencing regime or a different approach to starting points.22
[44] In the present case I accept it is arguable that, standing alone, the sexual offending may have attracted a starting point of around ten years imprisonment. The aggravating features of the offending are that it followed immediately after Mr Williams had inflicted two different forms of violence on the complainant in the kitchen. He then subjected her to two different forms of sexual assault, both of which were serious. The offending involving penetration of the anus was particularly serious because it involved a significant element of degradation.
[45] The sexual offending cannot, however, be viewed in isolation. It formed part of a series of events that occurred over a three day period during which Mr Williams effectively held the complainant captive in her own home. In R v AM the Court of
16 At [90].
17 At [98].
18 At [98].
19 At [98].
20 R v Anderson CA199/05, 2 November 2005.
21 R v Hannagan CA 396/04, 9 June 2005.
22 R v AM, above n 16, at [91].
Appeal observed that detention of the victim beyond that inherent in the offending itself may be an aggravating factor.23
[46] Mr Williams’ culpability in relation to the kidnapping charge needed to be recognised discretely within the sentence because it extended well beyond the sexual offending. It involved Mr Williams preventing the complainant from leaving her own home and also restricted her liberty to move freely within it for a substantial period of time. Furthermore, it reflected Mr Williams’ desire to assert his dominance and will on the complainant. That factor no doubt motivated the sexual and violent offending as well.
[47] I therefore do not consider an uplift of two years to reflect the kidnapping charge to be excessive. I therefore do not accept that the starting point of 12 years imprisonment was outside the available range. It follows that the appeal against sentence cannot succeed.
Result
[48]The appeal against conviction and sentence is dismissed.
Lang J
23 R v AM, above n 16, at [40].
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