Williamson (aka Palmer) v Police HC Dunedin CRI 2010-012-33

[2010] NZHC 1818

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2010-012-000033

BRETT WILLIAMSON (AKA BRIAN PALMER)

Appellant

v

POLICE

Respondent

Hearing:         29 September 2010

Appearances: Appellant in person

L Denton for Respondent

Judgment:      29 September 2010

ORAL JUDGMENT OF HON. JUSTICE FOGARTY

[1]      This is an appeal by Mr Williamson against sentence.   He is appearing for himself.  To some degree he was caught by surprise by today’s hearing as he only received  the  submissions  from  the  New  Zealand  Police  by Ms  Denton  the  day before.  However, he did want his appeal to proceed this morning.

[2]      Mr Williamson’s position is that he thinks the sentence is excessive, and that an appropriate end sentence should have been two years, six months rather than the end  sentence he  received  of  three  years,  three  months.    He  was  critical  of  the reasoning of Judge Coyle in paragraphs [12] and [13].  He was of the view, while

fully acknowledging the criminality of his conduct, that the seriousness had been

WILLIAMSON (AKA PALMER) V POLICE HC DUN CRI-2010-012-000033  29 September 2010

overstated by the Judge.  He pointed out that he had repaid his partner’s credit card in full before sentencing, a fact the Judge was not aware of, and that accounted for

$4000.  He explained that this offending to a degree was prompted by him going on

ACC and finding his outgoings simply did not meet his incomings.

[3]      Ms Denton for the Crown acknowledged that there were difficulties with paragraph [13] of the Judge’s reasoning.  Paragraph [13] followed paragraph [12], where the Judge said he had reached the view that the appropriate starting point was one of four years’ imprisonment.  The Judge then went on and said (at [13]):

The aggravating features are your previous convictions, although clearly I am not re-sentencing you in relation to those.  As I have said, it is aggravated by the breach of trust in that in relation to some of your offending you stole from those you were in a relationship with.   It is aggravated by the premeditation in your offending and the repetitive nature of it, including offending while on bail.  Those factors in my view justify an increase of nine months’ imprisonment, arriving at a provisional sentence of four years and nine months’ imprisonment.

[4]      The difficulty with that reasoning is that the previous judgment, that the appropriate starting point was one of four years’ imprisonment, itself reflected all of the offending.  To quote from the Judge, “the scope of it and the breadth of it”.

[5]      It is not clear whether the Judge followed the normal practice of identifying the appropriate starting point in addressing four years, but if he did then there is a significant argument that the breach of trust in relation to some of the offending and the premeditation and the repetitive nature of it would have been included in fixing the  starting  point.     There  is  therefore  a  significant  risk  that  the  Judge  has double-counted in increasing the starting point of four years by another nine months as an uplift.

[6]      In answer to that, Ms Denton argues that the truth of the matter is the Judge was really adding nine months as an aggravating feature because of the long criminal history of Mr Williamson.   It does appear, when one reads on into the sentencing notes, that the Judge had in mind at all times an end sentence of three years, three months.    He  was  clearly  applying  the  totality  principle.    The  totality  principle appears to have been applied when he selected the appropriate starting point of four years’ imprisonment.  When Judges apply the totality principle they sit back, look at

the entire offending and form some sort of judgment as to what the end sentence should be.

[7]      At the end of the day I think, although the Judge’s reasoning is not clear, because of paragraph [13], there is force in the argument that the Judge always had in mind on a totality principle, taking into account the entitlement to a full 33 per cent discount, that an appropriate end sentence would be three years, three months.

[8] The question then becomes whether I should disturb that judgment relying on the difficulties in the reasoning of paragraph [13].

[9]      Mr Williamson argues that the judgment was too severe.  He points out that a lot of the offending was relatively minor.   That is true, but it was prolific.   It extended over many months across New Zealand and reflected a sustained period of criminality when, Mr Williamson, you were breaking the law as it were to get by, to get money and quite deliberately doing so over a sustained period.   In criminal sprees, as they are sometimes called, we as Judges frequently take into account the length of offending and in this case when we couple that with your previous 249 offences and your criminality, I think that the Judge was entitled to treat you reasonably severely because there has to come a point, Mr Williamson, where not only do you acknowledge your criminality (that you have candidly and responsibly done here today) but you just simply have to control it.  It has got to stop.  In that sense I think the Judge’s overall judgment was sound and I have not been persuaded that I should disturb it.

[10]     I would summarise that the criminality of your offending did justify a starting point of four years and your previous convictions and criminal history justified an uplift of nine months.  In other words, the offending was aggravated by the fact that you had been significantly punished before for dishonesty, but that has not had the effect of stopping your offending.   That then brings one to four years and nine months.

[11]     You then complain that you did not receive the precise discount of the full 33 percent and that matters should be adjusted by one month.   As I have explained,

there is often a rounding up or a rounding down when these calculations are made and we as Judges never disturb that aspect of applying the discount.

[12]     For these  reasons, Mr  Williamson,  you  have  not been  able to  make out grounds which in my mind justify disturbing the judgment of Judge Coyle.   Your appeal is dismissed.

Solicitors:

Crown Solicitor’s Office, Dunedin

Copy to Appellant