Williams v The Queen - [2019] NZHC 768

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…

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 The Queen

Details

AGLC: Williams v The Queen [2019] NZHC 768
Case: [2019] NZHC 768
Decision Date: 10 April 2019

CaseChat Overview and Summary

The appeal concerns the sentence of the appellant, Mark Tasman Williams, who pleaded guilty to sexual connection with a young person aged 12 to 16 years, wilful damage, and resisting police. 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. The legal issues were whether the sentencing judge erred in not providing a discount for personal mitigating features, in particular relating to Williams’ upbringing as contained in the cultural report, and whether the sentence was manifestly excessive in the circumstances. The court held that 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. The court concluded that a discount for personal circumstances was warranted and a 10 per cent discount would have been appropriate. However, the court held that the sentence was not manifestly excessive. The appeal was dismissed.

Final orders: The appeal is dismissed.

Orders