Williams v The Queen - [2016] NZHC 2760

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-412-24 [2016] NZHC 2760

BETWEEN
REWITI TAMAHAU WILLIAMS

(AKA) DAVID WILLIAMS Appellant

AND

THE QUEEN Respondent

Hearing: 16 November 2016

Appearances:

S Saunderson-Warner for Appellant
R Smith for Respondent

Judgment:

18 November 2016

JUDGMENT OF MANDER J

Introduction

[1] The appellant, Rewiti Williams, pleaded guilty to two charges of obtaining by deception and one charge of driving while disqualified in the aggravated form. On
21 June 2016, following a sentence indication, he was sentenced by Judge Crosbie to two years’ imprisonment with six months special conditions.1 He was also disqualified from driving for a period of 18 months from the date of sentence. Mr Williams appeals this sentence.

[2] Although the notice of appeal was filed out of time, the Crown accepts that it is not prejudiced and leave is granted.

1 R v Williams [2016] NZDC 12816.

WILLIAMS v R [2016] NZHC 2760 [18 November 2016]

The offending

[3] Mr Williams is the son-in-law of the victim, Ms McCrae. Between 1 August and 14 August 2015, Mr Williams was at the house of the victim. While there he located her credit card in her wallet and obtained the card’s details. On 18 August he phoned Harvey Norman in Dunedin and told the salesman that he wanted to purchase some new items for his son, Colin Jnr, who had just moved to Dunedin. He requested a 65 inch Panasonic television and a Panasonic home theatre system, together valued at $4,156. Mr Williams read the salesman the credit card details and the transaction was processed and approved. During the conversation Mr Williams also requested a Samsung Note 4 and a PlayStation 4 bundle valued at $1,768.

[4] Mr Williams’ co-offender, Mr Taimalie, went to the store posing as Colin Jnr to collect the goods. While in store he paid for the PlayStation and Samsung Note 4 by reading the victim’s card details to the salesman. The transaction was processed and approved. He took all the goods and signed for them as C McCrae.

[5] On the same day, Mr Williams phoned Smith City and stated to the salesman that his name was Calvin McCrae. He provided the same story, that he needed to purchase some goods for his son who had just moved to Dunedin. He requested a PlayStation 4, an extra controller, a Samsung Galaxy S6, a screen protector, a Samsung Galaxy S5, an LG 40 inch television, a Samsung Galaxy tablet 9.7 inch and a Targus 10 inch tablet, collectively valued at $4,319.92. Mr Williams again read the credit card details to the salesman and the transaction was processed and approved. That same day Mr Taimalie, posing as Colin Jnr, went to Smith City and signed his name as C McCrae and left the store with the items.

[6] In respect of the driving matter, on 16 October 2016 at about 3.50 pm Mr Williams was driving his partner’s car in Mosgiel. He was stopped for a vehicle and licence…

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.

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Details

Case: [2016] NZHC 2760
Decision Date: 18 November 2016

CaseChat Overview and Summary

The appellant, Rewiti Williams, appealed his sentence of two years’ imprisonment for obtaining by deception and driving while disqualified. The sentence was imposed by Judge Crosbie who took a starting point of 22 months’ imprisonment, uplifted by six months for previous convictions, which resulted in a sentence slightly over the two years indicated by Judge Crosbie. Williams argued the sentence was disparate to that of his co-offender, Mr Taimalie, who was sentenced to home detention, and that the uplift for his previous convictions was not proportionate to the starting point. The court considered the disparity between the sentences of co-offenders and the appropriate uplift for previous convictions. The court found that while the starting point for Williams was appropriate, the difference in the final sentences imposed on him and his co-offender could not be justified. The court considered that a 15-month starting point could have been adopted for Williams and an uplift of three months for his fourth driving while disqualified conviction would have been appropriate. The six-month uplift for his very substantial relevant prior offending could also be legitimately applied, even with the adjusted starting point. The generous 15 per cent reduction for the guilty plea mitigates any concern that the suggested components of the sentence might be considered stern. The court allowed the appeal and substituted the sentence of two years with a sentence of 20 months imprisonment.

The final orders of the court were as follows: 1) The appeal was allowed; 2) The sentence of two years was quashed; 3) A sentence of 20 months imprisonment was substituted.

Orders