WILLIAMS v R [2005] NZCA 46 (15 March 2005)

Last Updated: 20 April 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA23/05

THE QUEEN



v



PHILLIPA TONI WILLIAMS

Hearing: 7 March 2005

Court: Anderson P, Heath and Doogue JJ

Counsel: M Dyhrberg and M Bannan for Appellant
K Raftery for Crown

Judgment: 15 March 2005

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Anderson P)

[1]	After a trial lasting some weeks before District Court Judge Bouchier and a jury the appellant and three others were convicted of offences under the Misuse of Drugs Act 1975. In the context of an extensive, commercial scale methamphetamine conspiracy headed by Iain Clegg and David O’Carroll the appellant communicated with Clegg on two particular occasions which founded her conviction on two counts. One count was conspiring to supply methamphetamine and the other conspiring to manufacture methamphetamine, each of which offences carries a maximum term of imprisonment of ten years. At the time of the offences, methamphetamine was a Class B controlled drug. The Judge imposed concurrent sentences of two years nine months imprisonment and the appellant now appeals against sentence on the following grounds:
(a)	Insufficient weight was given to the circumstances giving rise to the offending.
(b)	Insufficient weight was given to the Appellant’s personal circumstances.
(c)	The Appellant’s prospects for rehabilitation were not considered.
(d)	The sentence starting point was excessive in comparison to previously decided cases.
(e)	The sentence was excessive in comparison to the sentences imposed on the Appellant’s co-offenders.
(f)	Insufficient weight was given to mitigating factors.

Personal circumstances

[2]	Because of the emphasis placed by counsel on the appellant’s circumstances we think it convenient to traverse those at this point in the judgment.
[3]	Ms Williams is now aged 25 years and at the time of the offending she was 23. Although brought up in a family environment with no relevant idiosyncratic features Ms Williams developed, at about the age of six years, a disease called alopecia areata, which involves a disruption of the auto immune system and leads to sudden loss of hair. In Ms Williams’ case this led to extensive hair loss and, consequentially, acute embarrassment and distress during her childhood years. It seems that her parents were unable to afford or unable to arrange for a wig and Ms Williams would wear a hat to school. Sometimes the hat was removed from her by thoughtless and bullying children, causing her considerable upset and embarrassment. In the view of a registered psychologist engaged at the request of counsel for sentencing purposes, these childhood experiences affected Ms Williams’ self esteem in a way which made her more susceptible to conduct which would feed a need for excitement, attention and acceptance. Hence, she would on this view, be more susceptible to being suborned into the type of activity for which she has been convicted. Given, however, that Ms Williams was a user of methamphetamine at the time of the offending, her involvement with Clegg and in the conspiracy may be more directly related to the need to obtain that drug than to underlying facets of her personality.
[4]	Ms Williams is the mother of a boy born on 4 March 2003. In the Judge’s sentencing notes there is a hint of scepticism, in reliance on the psychologist’s report, about the appellant’s motives for becoming pregnant. However, medical information placed before this Court on appeal makes it plain that conception must have occurred before the dates of the particular offending and, of course, the appellant’s arrest for that. No cynical motive may fairly be attributed to the appellant for becoming pregnant. The Judge’s approach and her reasons for sentence do not suggest that the sentencing process was unfairly affected by considerations of the timing of the pregnancy.
[5]	In fact, there was a good deal of information before the District Court about Ms Williams’ commitment to and loving care of her young son. The Judge noted counsel’s submission that since the offending the appellant had matured greatly and that her son’s wellbeing and safety were her top priority.
[6]	Ms Williams did not stand before the District Court as a first offender. Only two months before committing the present offences she had been convicted on three counts of possessing cannabis and ordered to come up for sentence within 12 months if called upon. In December 2001 she had been convicted of using a credit card for pecuniary advantage and ordered to pay reparation.
[7]	In addition to the psychologist’s report the sentencing Judge had before her a pre-sentence report which recorded the appellant’s advice to the probation officer that in her early twenties she had become involved in the night clubbing scene on weekends and was introduced to recreational drugs. Her commitment to and her concern for her child were noted in that report also.
[8]	On 31 May 2004 the Judge who eventually presided over the trial and imposed sentence was asked to give a sentencing indication. The Judge considered that the appropriate sentence would be three years imprisonment reduced by one year for a guilty plea at that stage and that leave would be granted to apply for home detention. Ms Williams elected to proceed to trial with the consequences previously noted.
[9]	It seems that at sentencing counsel for Ms Williams acknowledged that an appropriate starting point would be three years imprisonment but submitted that notwithstanding the absence of a guilty plea there should still be a discount of at least one year for Ms Williams’ personal circumstances. Had the Judge been persuaded to that course the issue of leave to apply for home detention would have arisen and then emphasis would or could have been placed on Ms Williams’ domestic situation.
[10]	After addressing the Crown’s submissions, which cast Ms Williams as an assistant to Clegg as a source of ingredients, and the defence submissions along with the psychologist’s and probation officer’s report, the Judge referred to the paradigm case of R v Wallace & Anor [1999] 3 NZLR as well as the Sentencing Act 2002 and a selection of other cases. The Judge saw no basis for departing from the three year starting point which had been indicated long before trial. Ms Williams’ offending was perceived in terms of the whole operation with her being in a position of having sought to supply Clegg with a substantial amount of pills from which a substantial amount of methamphetamine could have been cooked.
[11]	As to the personal considerations, the Judge noted, as had counsel, that in the sentencing of drug offenders personal circumstances are generally given less weight than in other situations. But the Judge considered a small discount, namely three months, was warranted in the particular case. Accordingly the concurrent sentences of two years nine months imprisonment were imposed.

Submissions on appeal

[12]	In addition to the medical information as to the timing of pregnancy, counsel placed before this Court without objection from the Crown, affidavits relating to the consequences of the appellant’s imprisonment to her son and the child’s grandparents. There can be no doubt about the genuineness of the appellant’s concern for her child. He is being cared for by his grandmother and her husband but, as one would expect, that arrangement imposes both a strain on the older couple and predictable consequences for the child of separation from his natural mother who cared for him until he was 21 months of age.
[13]	Of the discrete grounds of appeal referred to by counsel, as noted at [1] of this judgment, (a),(b) and (f) amount in reality to the same proposition which is that Ms Williams’ psychology, relative youth, commitment to her child, the child’s personal welfare and the strain on the appellant’s parents, compendiously justified a significant discount from the Judge’s three year starting point, notwithstanding that the opportunity to obtain a one year discount and consequential leave to apply for home detention had previously been discarded by the appellant. As to the appellant’s prospects for rehabilitation not being considered, that submission overlooks that the Judge specifically referred to the opinion expressed by the registered psychologist that Ms Williams’ interest in and motivation for treatment was somewhat below average, that her level of treatment motivation was substantially lower than is typical of individuals being seen in treatment settings, and that her responses suggested that she is satisfied with herself as she is and sees little need for changes in her behaviour. The Judge also noted, however, that the registered psychologist remarked on a number of strengths that bode well for a relatively smooth treatment process if Ms Williams should make a commitment to treatment.
[14]	Before examining further the issue of personal circumstances we turn to the grounds advanced by counsel that the sentencing starting point was excessive in comparison to previously decided cases and that the sentence was excessive in comparison to the sentences imposed on the appellant’s co-offenders.
[15]	In approaching the issue of the starting point we remark, tritely, that there are always likely to be individual characteristics of more or less similar offending which justifiably result in a range within which, rather than a point upon which, a sentence must lie. A case bearing some features similar to the present is R v Marsters (1995) 13 CRNZ 571, where conviction after trial on one count of conspiracy to supply methamphetamine and one count of conspiracy to supply cocaine resulted in a sentence of three years six months imprisonment on the methamphetamine charge and two years six months imprisonment concurrent on the cocaine charge. This may be contrasted with R v Washer CA60/96, 11 July 1996, where concurrent sentences of two years imprisonment were upheld in respect of a defended count of supply and a defended count of conspiracy to supply methamphetamine.
[16]	Ms Dyhrberg sought to ameliorate the significance of the concession made on the appellant’s behalf at sentencing that a three year starting point was appropriate. Counsel said that this was in consequence of an erroneous apprehension that the maximum sentence for the particular offences was 14 years imprisonment whereas it is in fact ten years. However in this area, as in most others, patterns of sentencing develop by comparison with broadly comparable cases and not by reference to maximum penalties.
[17]	Further, the Judge of a five week trial which canvassed the roles of various malefactors was in a better position to assess the relative culpability of a participant, including the appellant, in terms of the overall evidence and scope of the criminal scheme, than can be conveyed by a selection of case summaries.
[18]	In our view, having regard to the indications in R v Wallace & Anor and other authorities referred to us, the three year starting point could not be considered outside the available range in respect of a continuing and widespread commercial operation for the obtaining of precursor substances and the illegal manufacture of such a pernicious drug as methamphetamine.
[19]	As to the argument of disparity with co-offenders, we are not persuaded by the submissions advanced on behalf of the appellant that there is any such discrepancy as would warrant interference by an appellate Court. The Crown provided this Court with the sentencing notes in respect of various co-offenders, all of whom were sentenced by the same Judge as in the present case. One offender, named Schwalger, also went to trial. The Judge, who as we have mentioned presided over a lengthy trial, evaluated this offender’s culpability in terms of a starting point of 3.5 years but for idiosyncratic personal features reduced that to three years. Another co-offender, named Loke, who also defended but was found guilty of the same counts as the present appellant, was considered more culpable so as to warrant a starting point of four years imprisonment reduced by three months, again for personal factors which included his age, the fact he was a first offender, and a history of injury. Clegg and O’Carroll, the two principal offenders, had their culpability assessed at six and a half years imprisonment reduced in the case of Clegg for a guilty plea. As we have already said, we are not persuaded there is any unjust disparity between the sentence imposed on this appellant and those imposed on co-offenders.
[20]	The very sad consequences to dependant children of the imprisonment of their parents is always deeply troubling to a Court. This case is no exception. To separate a child at 21 months of age from a loving and accomplished parent is an emotional wrench which may affect such a child for a long period of time or even for life. When, to preserve the benefits of kinship, the child is placed with close family whose age and own circumstances carry their own difficulties, the scope for distress and disruption is obviously enlarged. But society cannot overlook serious offending by parents in order to save distress to their children. The principles of denunciation, deterrence and accountability cannot be ignored. This is not to say that mercy may not be prompted by domestic circumstances in certain cases. Ms Dyhrberg referred us, for example, to R v Howard CA315/99, 2 December 1999 where this Court reduced a sentence of two and a half years imprisonment imposed in respect of conspiracy to supply cannabis to 18 months imprisonment.
[21]	Ms Howard was 24 years of age. She was involved in the running of a tinnie house notwithstanding her responsibilities to an infant child. The offending occurred when she was pregnant and by the time of sentencing her children were four years and one year old. Since her partner was sentenced to four years imprisonment for his involvement in the tinnie house, the children were left without both their parents. Counsel had submitted that separation anxiety, which is a recognised psychiatric condition and psychological trauma, which young children separated from their caregivers may experience, amounted to exceptional personal circumstances warranting a non-custodial sentence. The indications for a merciful approach to the sentencing of Ms Howard were, however, more extensive than the implications for the children. Ms Howard had been under the domination of her partner who was a gang member and it was because of his influence and the fear of what he might do if she refused to participate in the running of the tinnie house that she committed the offending. Ms Howard was also significantly motivated towards changing her behaviour and had successfully participated since apprehension in quite lengthy drug rehabilitation programmes. But in terms which may be no less apt in a case such as the present this Court remarked in Ms Howard’s case as follows:

Although we are naturally sympathetic towards Miss Kennedy’s argument that the separation of the two young children from their mother, with their father also imprisoned, makes them victims of her offending, and that there is a possibility of longer term psychological disturbance by reason of the separation, as revealed by the literature tendered to the court, we must necessarily bear in mind the need to deter other women in Ms Howard’s position and to remove from their minds any thought that a substantial prison sentence will not be visited upon them because they happen to have young children. Nor would we wish to encourage that thought in the minds of those who might perceive an advantage in the transacting of drug activities through women who might, because of their family circumstances, escape otherwise well merited sentences.

[22]

If Ms Williams had been prepared to accept responsibility for her conduct at the time of the sentencing indication in May 2004, she would have received a sentence of two years imprisonment and may well have been released on home detention within a reasonable time of sentencing. But she was not prepared to accept responsibility, preferring to take her chances, and failed. It would be quite wrong for this Court artificially to reduce the sentence to two years imprisonment for the purpose of making Ms Williams amenable to an order granting leave to apply for home detention.

[23]

Whilst we appreciate the distress and unhappiness that must have been occasioned to the appellant throughout much of her childhood by reason of her illness, we feel unable to place much weight, in terms of mitigation, on the suggestion that this has rendered her somehow less responsible for involving herself criminally with dealers in dangerous drugs. People associate themselves with groups actually or potentially involved in crime, routinely, for very much the same type of personal gratification that is said to have influenced Ms Williams’ conduct; that is, a craving for excitement, attention and acceptance. The reasons for the development of individual personalities which find gratification in those conditions are common aspects of human nature. They do not amount to a mental illness or disorder which might mitigate criminal responsibility.

Result

[24]	In the result, despite the very careful and extensive submissions of Ms Dyhrberg we have not been persuaded that the sentence is manifestly excessive or that the Judge has erred in principle in imposing it. The appeal is therefore dismissed.

Solicitors:
Crown Solicitors, Auckland