Williams v The Queen
[2019] NZHC 768
•10 April 2019
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSONS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-17
[2019] NZHC 768
BETWEEN MARK TASMAN WILLIAMS
Appellant
AND
THE QUEEN
Respondent
Hearing: 8 April 2019 Appearances:
PQC Stokes for the Appellant Z Fuhr for the Respondent
Judgment:
10 April 2019
JUDGMENT OF GAULT J
This judgment was delivered by me on 10 April 2019 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Ms P Stokes, Barrister, Auckland Ms Z Fuhr, Crown Law, Wellington
WILLIAMS v R [2019] NZHC 768 [10 April 2019]
[1] Mr Williams pleaded guilty in the District Court to a representative charge of sexual connection with a young person aged 12 to 16 years, two charges of wilful damage and one charge of resisting police. Judge A-M J Bouchier sentenced Mr Williams on 6 December 2018 to an effective term of 27 months’ imprisonment.1
[2] Mr Williams appeals on the grounds that the sentence is manifestly excessive because no discount was given for his personal mitigating circumstances, particularly those identified in a s 27 cultural report.2
The facts
[3] Mr Williams met the victim in May 2017. He was aged 29, and she was 14. They exchanged phone numbers. They began to communicate with each other in this way, which led to the victim introducing Mr Williams to her family. He was welcomed into her family as her friend, despite the age difference.
[4] Sometime in June 2017 Mr Williams had sexual intercourse with the victim. Sexual intercourse between the two occurred on at least two other occasions before 17 July 2017.
[5] It was later discovered that the victim was pregnant, and she gave birth on 17 May 2018. On 24 May 2018 police spoke to Mr Williams and he admitted the allegations. He stated that he had sex with the victim on three to four occasions and that, in his mind, he knew it was not right to have sex with an underage girl.
[6] On 4 June 2018, at about 9:00 pm, Mr Williams went to the victim’s address and knocked on her bedroom window. He asked to be let in and she refused. Mr Williams yelled out “open the window, you’re cheating on me”, mentioning the male security guard outside the address. He called out “open the window, you’re giving me no choice”. Mr Williams pulled at the aluminium window frame, causing it to rip from the exterior wall. He climbed through the window into the victim’s bedroom and accused her of cheating on him with the male security guard. He picked
1 R v Williams [2018] NZDC 25593. 27 months’ imprisonment on the first charge and three months’ imprisonment on each of the other charges, all concurrent.
2 Sentencing Act 2002, s 27.
up a photo frame from her room and threw it out of the broken window onto the driveway. He walked into the lounge and picked up a vacuum cleaner and walked outside the address. He threw the vacuum cleaner at another victim’s vehicle causing the front windscreen to smash. He picked up the vacuum cleaner and threw it at a window of the dwelling, causing the glass to smash.
[7] On 5 June 2018 Mr Williams was arrested by police and when asked to turn around to have handcuffs placed on him he refused and tried to pull away. He continued to tense up and refuse to put his hands behind his back and it required three police constables to safely apply handcuffs. During the transport, Mr Williams was yelling obscenities towards police and tried to climb out of his seat and remove his seatbelt and escape.
The sentence
[8] On the sexual connection charge, the Judge considered that a starting point of 30 months’ imprisonment was appropriate. In doing so the Judge had regard to aggravating features of the offending. The Judge considered the length of time over which the defendant engaged in the sexual offending was fairly short, involving four occasions. She considered there was a breach of trust but not a major one. The victim was vulnerable because of her age. The impact of the offending was significant, and the victim at her age now has a child. The 15 year age gap was concerning. The Judge considered there was an element of grooming but that it was minor. The Judge also considered there was an element of planning involved, but again this was not to a significant degree. The Judge considered there should be an uplift of six months on account of the other charges and Mr Williams’ previous convictions.
[9] The Judge acknowledged that Mr Williams sought discounts for personal factors, which included remorse, efforts at rehabilitation and personal factors detailed in a full cultural report, which the Judge had read. In relation to remorse and rehabilitation, the Judge noted the submission that Mr Williams was very remorseful and wished to attend restorative justice but that was never ordered for whatever reason. The Judge did not give reasons for rejecting a discount for Mr Williams’ personal circumstances.
[10] The Judge considered that a 25 per cent discount was appropriate for Mr Williams’ guilty pleas. That took the sentence on the lead charge to a period of imprisonment of 27 months.
Approach to appeal
[11] To succeed on an appeal against sentence, the appellant must satisfy the appeal court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. The Court will only intervene and substitute its own view if the sentence is manifestly excessive or wrong in principle.4 However, the appeal court’s focus is on the final sentence imposed rather than its component parts or how the ultimate sentence was reached.5
The arguments on appeal
[12] Ms Stokes, for the appellant, accepted that the starting point and uplift adopted by the Judge were appropriate as was the discount for the guilty pleas. Ms Stokes submitted that the Judge erred by failing to provide a discount for personal mitigating features, in particular relating to Mr Williams’ upbringing as contained in the cultural report.
[13] In relation to remorse, Ms Stokes acknowledged that a restorative justice conference may not have proceeded, but the opportunity was denied during an earlier appearance in a busy list. Given the reference to genuine remorse in the cultural report, Ms Stokes submitted that Mr Williams should be afforded some discount.
[14] Ms Stokes submitted that taking these mitigating factors into account would have led to a short term of imprisonment and enabled the Court to impose the least restrictive outcome by granting leave to apply for home detention under s 80I of the Sentencing Act 2002 (the Act) and not required the appellant’s registration on the
3 Criminal Procedure Act 2001, s 250(2) and (3).
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
5 Ripia v R [2011] NZCA 101 at [15].
Child Sex Offender Register. Ms Stokes submitted the sentence was manifestly excessive in the circumstances. Even a 10 per cent discount would have brought the effective sentence down to 24 months or less. She referred to the 15 per cent discount in HM v R.6
[15] Mr Williams has been remanded in custody since 6 June 2018 and has therefore been in prison for 10 months. Ms Stokes submitted it was now appropriate to substitute the sentence with one having a rehabilitative focus incorporating intensive supervision and a large amount of community work.
[16] Ms Zuhr, for the respondent, submitted the sentence was within the available range and disclosed no error. She acknowledged that Mr Williams has had an unsettled and difficult upbringing, including traumatic experiences during his time spent in youth justice facilities. She submitted, however, that the requisite nexus between the material set out in the cultural report and Mr Williams’ offending is not readily apparent. Ms Fuhr submitted that the Judge referred to the report and implicitly rejected a discount.
[17] As for remorse, Ms Fuhr acknowledged that, given the criteria set out in s 24A(1) of the Act appear to have been met, the Judge ought to have adjourned the proceeding to allow enquiries to be made in accordance with s 24A(2)(a). However, she submitted that even if this step had been taken the Judge would still have exercised her discretion at the second stage not to allow the restorative justice process to occur, and therefore the Judge’s approach to s 24A would not have affected the end sentence imposed. Ms Fuhr submitted that it was open to the sentencing Judge to decline to give Mr Williams a discount for his restorative justice offer in the absence of other evidence to suggest the offer was indicative of his genuine regret and remorse. The Provision of Advice to Court (PAC) reports differed from the cultural report, concluding that Mr Williams has little insight into his offending and the impact to the victim.
[18] Even if a modest five to 10 per cent discount were appropriate on account of Mr Williams’ upbringing and trauma, Ms Fuhr submitted the effective sentence was
6 HM v R [2019] NZHC 121.
not manifestly excessive as the starting point was lenient, and considerably lower than the Court of Appeal’s endorsement in R v Johnson of a four year starting point for offending with similar aggravating features.7 She referred to the higher starting points in Burdett v R (three-and-a-half years’ imprisonment)8 and Faapuea v R (two years and nine months’ imprisonment).9 Ms Fuhr submitted the starting point should have been three years’ imprisonment.
Cultural report
[19] The Court received a cultural report pursuant to s 27 of the Act explaining Mr Williams’ upbringing, and the way in which it may have related to the offending. The report explains that Mr Williams is of Māori descent, the third eldest of seven children. He was born and raised in East Auckland. He had an unsettled and challenging upbringing.
[20] He was raised by his grandparents under the customary Māori practice of tamaiti whāngai (a person adopted in accordance with tikanga Māori) from a young age until the age of seven, when his grandfather died. He had a very close relationship with his grandfather. He always felt loved and cared for by his grandparents.
[21] Soon after his grandfather died he returned to the care of his biological parents. This had a significant impact on him. He felt as though he did not know them well and he did not belong. He was ill-equipped to cope with the loss of his grandfather, his world changed and his behaviour as a child deteriorated.
[22] There was a consistent pattern of truancy at primary school and at the end of his primary school years he dropped out and did not attend secondary school. This marked the onset of his future pathway of adversity. He ventured into the adult world as a child, engaging in adult behaviours from a very young age. His peers, including those he met through school and their older siblings, influenced him. They were his role models, and he was learning from them about alcohol, drugs and crime.
7 R v Johnson [2010] NZCA 168 at [17].
8 Burdett v R [2009] NZCA 366.
9 Faapuea v R [2010] NZCA 20.
[23] At the age of 13 he was too much trouble for his biological parents and was taken into state care, where he spent the next five years. He was in and out of boys’ homes throughout New Zealand, and ran away from most of them. He was also detained in four different youth justice residential facilities, running away from all of them. He first appeared in the Auckland Youth Court for burglary at age 14, which marked the beginning of a significant criminal history spanning some 16 years.
[24] During his time in state care the severity of adverse childhood experiences escalated. He was subjected to violence and abuse in all forms – physical, emotional, verbal and sexual. He was sexually abused at the age of 15. This occurred in three youth justice residential facilities by both caregivers and other residents.
[25] He was in mainstream prison at 18 years old. When released from prison, he returned to live with his biological parents and secured fulltime employment for short periods of time. At age 26 his alcohol and substance misuse increased.
[26] Mr Williams has been raised with some knowledge of Māori tikanga and te reo. He knows his pepeha but his knowledge of his whakapapa is limited and he presents as disconnected from his culture, his native language and his whenua. The report writer says that Mr Williams epitomises the inter-generational displacement experienced by so many Māori as a result of colonisation.
[27] In terms of the link between his background and the relevant offending, the report writer says the adverse childhood experiences have been hugely detrimental to his physical, spiritual and mental wellbeing and plausibly set him on his path of crime.
[28] The report writer says that Mr Williams is extremely remorseful for his offending, acknowledging his wrong-doing and the impact not only on his own life but also on the lives of others – his victim, his victim’s whānau, his own whānau, and the community. The report writer also says he seemed genuine about accepting responsibility for his actions, the poor choices he made when he offended and the consequences of his actions.
[29] The report highlights some trauma (grief and loss, violence, sexual abuse and resentment) resulting in unresolved emotional issues and limited coping tools to assist Mr Williams to deal with certain situations where care and caution would normally prevail. The report writer notes Mr Williams has identified the importance of addressing his historical trauma and how these factors have impacted on him emotionally and mentally. The writer says he shows willingness and determination to put positive measures in place for a better pathway forward. He has some clear goals and aspirations, particularly around cultural connectedness, which will be paramount for his personal development.
Decision
[30] I consider the Judge’s starting point and uplift were within the appropriate range for this type of offending. As Ms Fuhr submitted, the starting point could have been higher. Ms Stokes referred to R v Stacey, which involved similar facts to the present (and some aggravating factors not present here), where the starting point was the same as here. But in that case the Court of Appeal said offending of that nature could have attracted a start point considerably higher.10
[31] Personal, family, whānau, community and cultural background, including systemic disadvantage, can be relevant as a factor mitigating culpability, but there must be a linkage between the matters raised in a cultural report and the offending.11 As Downs J has recently said, correlation and causation are not synonymous.12 In Solicitor-General v Heta, Whata J reviewed the relevant cases and could not discern a discount range for deprivation per se. On occasions, modest discounts in the range of up to six per cent had been afforded to an offender with a deprived background, and larger discounts when that deprivation was combined with personal trauma.13 Larger discounts tend to rely on identifying linkages between personal circumstances and the
10 R v Stacey [2008] NZCA 465 at [22].
11 Solicitor-General v Heta [2018] NZHC 2453 at [50], recently cited in Arona v R [2018] NZCA 427 at [59].
12 R v Patangata [2019] NZHC 744 at [45].
13 Solicitor-General v Heta [2018] NZHC 2453 at [62].
offending, and thus the moral culpability of the offender.14 This was also considered by Mander J recently in HM v R.15 After referring to Heta, Mander J stated:16
The extent to which information provided in the s 27 report engages the purposes and principles of the Act is an evaluative exercise and a matter of weight for the sentencing Judge, which is to be undertaken in accordance with the statutory sentencing framework.17 In respect of relevant sentencing criteria, s 27 information may be potentially relevant to: the degree of an offender's culpability;18 consideration of the least restrictive sentence possible;19 whether the circumstances of the offender would result in the sentence being disproportionately severe;20 the offender's personal, family, whānau, community and cultural background or other means of dealing with the offender with a partly or wholly rehabilitative purpose;21 and an offender's remorse, or offer to make amends by the offender and/or whānau.22
(footnote numbers updated)
[32] Cultural factors are likely to have only a modest, if any, effect on sentence when the offending involves serious violence or serious sexual offending.23 Sentencing for some offences may be dominated by considerations such as denunciation, victim impact and community protection, reducing and perhaps eliminating any discount for culpability on social grounds.24
[33] Almost everything turns on the facts of the particular case.25 As Mander J said in HM v R, discounts for personal circumstances are likely to be informed by a combination of overlapping factors which may include deprivation, trauma, youth, drug and alcohol abuse, and mental health issues.
[34] In that case, even though the linkage between the deprivation and the offending was difficult to discern, Mander J considered that a further five per cent discount on top of the 10 per cent extended by the District Court Judge was warranted.26
14 Solicitor-General v Heta [2018] NZHC 2453 at [63].
15 HM v R [2019] NZHC 121.
16 At [30].
17 Solicitor-General v Heta [2018] NZHC 2453 at [38].
18 Sentencing Act 2002, s 8(a).
19 Section 8(g).
20 Section 8(h).
21 Section 8(i).
22 Section 9(2)(f).
23 Solicitor-General v Heta [2018] NZHC 2453 at [57]; and R v Duff [2018] NZHC 2690 at [23].
24 Arona v R [2018] NZCA 427 at [61], citing Solicitor-General v Heta [2018] NZHC 2453 at [57].
25 Hessel v R [2010] NZSC 135, [2011] 1 NZLR 607 at [26].
26 HM v R [2019] NZHC 121 at [41].
[35] In this case, the cultural report was helpful even though it did exhibit some advocacy towards a non-custodial sentence. I do not doubt the presence of systemic Māori deprivation or social disadvantage in Mr Williams’ upbringing. Its linkage with the sexual connection with his victim, however, is more difficult to discern. Nevertheless, I do consider that, whether flowing from systemic Māori deprivation or otherwise, Mr Williams’ personal circumstances involving dislocation as a child when he moved to live with his biological parents after his grandfather died aged seven, and then when he was taken into state care aged 13, and the subsequent abuse, are matters to be taken into account in his personal circumstances.
[36] As the cultural report says, in addition to personal childhood trauma, it is clear from Mr Williams’ upbringing that he was isolated from positive whānau and other pro-social influences before he was a teenager. This trauma and disconnection, together with lack of education and early alcohol and drug misuse, has no doubt significantly impaired his wellbeing and life choices. Mr Williams has experienced, and continues to experience, emotional turmoil, which he is not equipped to deal with. This is undoubtedly contributed to his inability to make sound decisions, which has inevitably led to his offending and behaviour.
[37] I consider that a discount for these personal circumstances was warranted. Ms Stokes acknowledged it should be modest in the circumstances and I consider 10 per cent would have been appropriate.
[38] In relation to remorse, a mere indication that someone is willing to participate in the restorative justice process may, of itself, mean little. That willingness is to be given more weight when it is coupled with other evidence that shows an offender has taken responsibility for his offending and wishes, in a meaningful way, to atone for it as best he can.27 Mr Williams was prevented from pursuing restorative justice further at too early a stage. But I also accept it is unlikely this would have been an appropriate case for a restorative justice process. It would have been open for the Judge to give a small discount for remorse based on the comment in the cultural report that
27 Henare v R [2017] NZHC 2397 at [17].
Mr Williams displayed genuine remorse, but I also consider that the evidence is such that the Judge cannot be said to have been wrong not to give a further discount.
[39] Standing back, I do not consider the effective sentence of 27 months’ imprisonment was manifestly excessive. Any discount for Mr Williams’ mitigating circumstances could, and maybe should, have been offset by a higher starting point.
[40] In any event, as the Court of Appeal has stated imprisonment will usually be the only appropriate sentence for persons who have committed serious sexual offending against children or young persons.28 I note also that Mr Williams was assessed as being at a high risk of re-offending in the PAC report. As Ms Fuhr submitted, the respondent would have maintained that a sentence of imprisonment was the least restrictive sentence given Mr Williams’ history and high risk of re-offending, and the risk of harm to others.
[41] While I am very conscious of the need for a rehabilitative focus looking forward as Ms Stokes submitted, I do not consider that the threshold has been reached where the sentence should be disturbed.
Result
[42]The appeal is dismissed.
Gault J
28 R v Johnson [2010] NZCA 168 at [30].
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