Williams v The Queen

[2018] NZHC 2945

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2018-416-20 [2018] NZHC 2945

BETWEEN

JO MARIE WILLIAMS

Appellant

AND

THE QUEEN Respondent

Hearing:	6 November 2018
Appearances:	N Wright for Appellant C Stuart for Respondent
Judgment:	13 November 2018

JUDGMENT OF GRICE J

Introduction

[1]      Ms Williams pleaded guilty to a charge of possession of methamphetamine for sale and possession of cannabis for sale.                  She was sentenced to three years and

11 months’ imprisonment in the Gisborne District Court on 17 August 2018.1

[2]      Ms Williams appeals her sentence on the grounds it was manifestly excessive. She says the Judge erred by failing to:

(a)      adopt an appropriate starting point;

(b)      adjust for the totality of sentence;

(c)      take into account pre-sentence detention; and

1      Williams v R [2018] NZDC 17900.

(d)      allow a discount for hardship.

[3]      The Crown oppose the appeal.  It says the end sentence was not manifestly excessive.

The offending

[4]      Lucky Campbell was the target of a police operation in 2017 focusing on the distribution of methamphetamine in Gisborne.  On 1 December 2017 a warrant was authorised to allow surveillance.  Between 27 December 2017 and 9 January 2018

Ms Williams bought 87 g of methamphetamine from Mr Campbell to supply others. She was serving a sentence of home detention at the time. As she was unable to leave her home, she sent her sister (Sandra Williams) to make the payments and collect the drugs on six occasions over that period.

[5]      On 10 January 2018, Ms Williams told Mr Campbell that a search warrant was being executed and she was getting rid of her phone. Ms Williams was out of her drug stocks by 11 January 2018.

[6]      Ms Williams was dealing methamphetamine to fund her own habit, but it is clear she was in the business of selling it.  In total Ms Williams purchased 87 g of methamphetamine.  She sold 71 g and used the balance.

The sentencing

[7]      On 17 August 2018, the Judge sentenced Ms Williams and her sister, Sandra

Williams.2

Sandra Williams (Ms Williams sister)

[8]      The Judge noted that it was Sandra Williams’ first appearance before the Court at the age of 37 years. The Judge began by noting that it she had acted out of misguided loyalty to Ms Williams. According to the pre-sentence (PAC) report, Sandra Williams was assessed as being at a high risk of reoffending and a medium risk of harm due to

2      Williams v R, above n 1.

her substance abuse and her addiction to methamphetamine.  She was unremorseful, did not believe she had done anything wrong, and had no motivation to change. Imprisonment was recommended by the probation officer.

[9]      However, at the hearing she handed up a handwritten letter in which stated she had remained methamphetamine free for a considerable period and had put her life back onto a positive track. She said she wanted access to programmes and counselling to assist her in remaining drug free and so providing a better life for her family. Sandra Williams said she did not state her true feelings in the probation report because this was the first time she had been in this position. She said she wrote the letter to tell the Judge how remorseful she was and she had offended because she felt sorry for her sister.

[10]     The   Crown   pointed   out   the   charge   against   Sandra  Williams   was   a representative charge and less serious than those faced by Ms Williams.  The Crown said  that  a  starting  point  of  four  years  would  be  appropriate.    Sandra Williams submitted around three and a half years was a more appropriate starting point in light of her good behaviour, drug addiction and lack of financial reward.

[11]     The Judge noted the planning, extent of the dealing and the fact that a home detention sentence had been breached in the process were negative factors. However, in mitigation he noted her age, lack of prior convictions and early guilty plea. In light of these factors, the Judge assessed her culpability at that of band two of Fatu.3 The Judge fixed the starting point at three years and nine months imprisonment.  He gave her a further 10 per cent discount for remorse and steps toward rehabilitation, 20 per

cent for good character, and a guilty plea discount of 25 per cent.  The end sentence was 24 months imprisonment which was converted to home detention.

Ms Williams

[12]     The Judge noted that Ms Williams was in a different category.  She had eight previous convictions for possession for supply of methamphetamine in 2017 and 2015, as well as convictions for other drug offending.  She was of medium risk of harm to

3      R v Fatu [2006] 2 NZLR 72 (CA).

others if she did not address the cause of her offending, and a moderate to high risk of reoffending based on her prior convictions and addiction.  She had little insight into her actions and the Judge did not believe that the only motive was feeding her drug habit.

[13]     The Judge noted her poor compliance with sentences.  While on a sentence of home detention she had committed yet another offence of supplying methamphetamine.  She was resigned to a sentence of imprisonment.  Ms Williams also noted that she had been in a psychologically abusive and violent relationship that led to her addiction to methamphetamine.  Ms Williams’ mother provided a letter to the Judge asking for another chance for her daughter to turn her life around for the sake of the children.

[14]     The Crown argued that Ms Williams was selling methamphetamine while serving home detention, that cannabis had been involved, and she had prior convictions.  Under the Fatu bands, a sentence between four and a half to five years is appropriate as a starting point. The Crown further argued an uplift should be given for the breach of home detention resulted from the offending.

[15]     The Judge adopted a starting point of four years and three months, and imposed a three-month uplift for the possession of cannabis for sale charge and criminal history, a three-month uplift for the offending taking place while on home detention and a seven-month uplift to account for the time left unserved on home detention.

[16]     This calculation resulted in a subtotal of five years and seven months, which was reduced by four months to five years and three months for totality purposes.  A final discount of 25 per cent, to account for a guilty plea, was applied reducing the final sentence to three years and 11 months’ imprisonment.

[17]     The judge added an addendum to his judgment noting that there was no discussion of hardship in the judgment itself, but that the hardship raised by Ms Williams in reference to her children was insufficient.   She had dealt in methamphetamine while she had children in her home and no further discount should be given.

Standard of appeal

[18]     Ms Williams has brought her appeal under s 250 of the Criminal Procedure Act

2011.  Of note is that an appeal against sentence is an appeal against a discretion, and therefore, must only be allowed if the Court is satisfied that there has been (for any reason): 4

(a)      an intrinsic error in the sentence imposed; and

(b)      a different sentence should be imposed.

[19]     The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.5 As articulated in R v Peters:6

[13]     As this Court has indicated on many occasions, the issue whether a sentence is manifestly excessive or manifestly inadequate or inappropriate must be examined in terms of the sentence actually passed rather than the precise process by which it is reached.   Thus, if a sentence might be the product of a starting point which is itself manifestly excessive but is in the result ameliorated by allowances made for mitigating factors so as ultimately to be brought to a point of acceptability, this Court will be disinclined to intervene through concern over any particular component. This is very much such a case here.

Grounds of appeal

[20]     Ms Williams appeals her sentence on the grounds it was manifestly excessive as the Judge erred by failing to:

(a)adopt an appropriate starting point on the basis it should have had parity with Sandra Williams’ sentence;

(b)      adjust for totality;

(c)      account for pre-sentence detention; and

(d)      allow a discount for hardship.

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

5      Ripia v R [2011] NZCA 101 at [15].

6      R v Peters CA12/03, 14 May 2003.

Starting point

[21]     First, Ms Williams says she received a significantly higher starting point than her sister Sandra Williams in her sentencing.  She argues that there should have been parity in the sentencing of the two sisters (even though one was a dealer and one was a courier) as:

(a)Ms Williams was addicted to methamphetamine and Sandra Williams had “no established methamphetamine addiction”;

(b)Sandra Williams transported a greater amount of methamphetamine than was sold by Ms Williams;

(c)      Sandra Williams was the only thing that enabled Ms Williams to offend;

and

(d)      Sandra Williams transported the drugs on six occasions.

[22]     Nevertheless, as the Crown point out, it was Ms Williams that made initial contact with Mr Campbell to deal the drugs – not Sandra Williams.   It says the evidence points to Sandra Williams being lured into drug dealing by Ms Williams not the other way around.  Ms Williams has a history of drug dealing, and she had made contact with Mr Campbell.  Sandra Williams did not.

[23]     The reason that a lower amount was being dealt by Ms Williams than was being transported by Sandra Williams was because Ms Williams had a methamphetamine addiction and was using it herself. I do not accept that this point supports an argument of parity between the sisters.

[24]     I accept the Crown submission that Sandra Williams acted as a pawn in the circumstances.  The mastermind in the relationship was Ms Williams.  She was in control of the arrangements and the fact she was unable to leave the house and was addicted to methamphetamine does not detract from her culpability.  She was clearly the leader in the relationship, orchestrating the trade in drugs and directing her sister.

[25]     The Crown cites four cases in which amounts ranging for 13 to 80 g of methamphetamine for supply had resulted in starting points of four to five and a half years.7

[26]     A starting point of four years and three months is well within range in light of these cases.  The Crown submit that a starting point of up to five years is appropriate for someone organising and directing operations as Ms Williams was. The starting point was appropriate in the present case.

Totality

[27]     The Judge gave Ms Williams a four-month discount for totality, reducing the starting point from five years and seven months to five years and three months.

[28]     Ms Williams’ submission under this head is that it was inappropriate for the following uplifts to be given:

(a)      three months: possession of cannabis charge and criminal history;

(b)      three months: offending occurring on home detention; and

(c)      seven months: balance of home detention sentence.

[29]     In terms of the three-month uplift for the cannabis charge and criminal history,

Ms Williams argues it was part of the methamphetamine dealing so no separate uplift should have been given.   Similar arguments are made in reference to the home detention uplifts.  The foundation of Ms Williams’ argument is that there is double counting going on because each of these matters were accounted for in the starting point.   In addition, Ms Williams argued that as she was being resentenced for the balance of her home detention sentence, she is doubly penalised by the uplifts for

previous convictions and a home detention breach.

7      R v Tatana [2014] NZHC 1614; R v Brown [2016] NZHC 612; Daniels v R [2018] NZCA 62;

Gilfedder v R [2013] NZHC 426.

[30]     The Crown argue that this is not the case.  It says there was an appropriate reason for each of the uplifts:

(a)Uplifts  for  conviction  history  are  often  made  when  the  history  is relevant to the current offending. There was a clear history of relevant offending here, so an uplift was appropriate to denounce this kind of offending. Three months was in the range available.

(b)Uplifts for offending on home detention are often made to denounce offending while serving a sentence.   Here, offending while serving home detention was a clearly aggravating feature of Ms Williams’ offending. Therefore, a three-month uplift was appropriate here.

(c)Finally, there were three and a half months left to serve of the uncompleted home detention sentence which equates to seven months’ imprisonment.   This was justified as otherwise Ms Williams would have benefited from a shorter sentence for the earlier offending.  The Crown note that these seven months also had the benefit of the guilty plea discount as the uplift was added before the guilty plea discount was accounted for.   It rejects the argument that if she had been sentenced for the charges for which she received home detention at the same time as this offending Jo Marie Williams would have received a lesser sentence for the whole.

[31]     I agree with the Crown on these points.  The uplifts imposed were within the ranges available.

Pre-sentence detention

[32]     Although not raised under a separate head, Ms Williams appears to allege that credit should have been allowed for pre-sentence detention or that her time on remand should have offset the uplifts.

[33]     The Crown dispute this.  The Crown accepts that when an offender has been remanded in custody pending an application for cancellation and substitution of home

detention alone,8 the period on remand is not counted as pre-sentence detention toward a substituted sentence of imprisonment.9   However, cases like Ms Williams’, where there is an interaction between the pre-sentence detention and re-sentencing regimes when there are new charges, are treated differently following the Supreme Court’s majority decision in Booth.10   Ellis J in Sutherland noted that the “contested period” (the time between application for resentencing following home detention and when the resentencing occurs when there are new charges) is pre-sentence detention.11  The Court cannot account for pre-sentence detention pursuant to s 90 of the Parole Act

2002 as it is for the Department of Corrections to consider. This supports the Crown’s present position.   I agree with the decision in Sutherland, although I do note it is presently under appeal.

[34]     Here, Ms Williams was remanded in custody on 31 January 2018 and an application for cancellation and substitution was made on 2 February 2018.   This period was not pre-sentence detention and was for the Judge to consider.12    It was, however, so small that it does not render the sentence manifestly excessive for the purposes of this appeal.  The period in custody from 2 February 2018 to 17 August

2018 following the application up to the sentencing was pre-sentence detention for the new charges Ms Williams faced (and therefore applicable to the sentence overall, following the Supreme Court’s decision in Booth).13   As pre-sentence detention, this period is for the Department of Corrections to account for in calculating Ms Williams’ statutory release date.

[35]     No appealable issues arise in the context of a sentence appeal with pre-sentence detention at this stage.

8      Sentencing Act 2002, s 80F(1)(a).

9      Section 80ZB(a); Parole Act 2002, s 9(1).

10     Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.

11     Sutherland v The Chief Executive of the Department of Corrections [2018] NZHC 1366 at [13]

and [70] – [71] presently under appeal.

12     Sentencing Act 2002, s 80ZB.

13     Sutherland v The Chief Executive of the Department of Corrections, above n 11, at [70] – [71].

Discount for hardship

[36]     The Judge noted in his decision that Ms Williams had children and had asked a discount be applied for hardship. The Judge concluded this was inappropriate as Ms Williams chose to deal methamphetamine with her children in the home.

[37]     Ms Williams contests this refusal and says the hardship claim was more complex than understood by the Judge.  Specifically, it was that she had three young children, both she and the children’s father are in prison, she has limited contact with the children via telephone and has been unable to see her children in person due to the distance  and  financial  constraints.    Ms Williams  also  notes  she  has  historically engaged well with drug programmes, and she is now in a detox unit at her prison which necessitates her being detained at Arohata Prison some seven and half hours travel from Gisborne where the children reside.

[38]     Ms Williams cites the decision in Brown which notes that where a parent is separated from their children distance may give rise to a discount for hardship.14  The refusal to give a discount in this case is submitted to have rendered the sentence manifestly excessive.

[39]     The Crown say that Ms Williams’ circumstances are substantially different of those in Brown.  Specifically, the mother in that case was a sole parent, had a limited criminal history and a non-custodial sentence would have been appropriate if it was available.  That is not the case here in the present circumstances.  Ms Williams is effectively a sole parent and she has received compassionate sentences for the sake of the children in the past. These sentences have been ineffective in curbing her offending. She has most recently offended while her children were in her house. There is no evidence to suggest that there would be disproportionately severe consequences

for Ms Williams’ children in this case.

14     R v Brown [2017] NZHC 1846.

Conclusion

[40]     In my view, the starting point taken by the Judge was at the lower end of the range and the uplifts applied were justified.

[41]     The appeal is dismissed. The overall sentence is not manifestly excessive.

Grice J

Solicitors:

Crown Law Office, Wellington for Respondent