Williams v R [2021] NZCA 333 (23 July 2021)

Last Updated: 27 July 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA338/2021 [2021] NZCA 333

	BETWEEN	RAYON MOHI WILLIAMS Appellant
	AND	THE QUEEN Respondent

Hearing:	19 July 2021
Court:	Miller, Thomas and Wylie JJ
Counsel:	D A Ewen for Appellant J N Hamilton for Respondent
Judgment:	23 July 2021 at 10.00 am

JUDGMENT OF THE COURT

1. The appeal is allowed.
2. The sentence of two years and one month’s imprisonment imposed by the Judge is vacated. A sentence of 10 months’ home detention is substituted therefore.

100. The sentence of home detention is subject to the standard conditions set out in s 80C(2) of the Sentencing Act 2002 and to the following special conditions imposed under s 80D of the Act:

(i) Mr Williams is to travel directly from the prison at which he is currently being held to the address specified in the Provision of Advice to Courts Report dated 28 May 2021, and there await the arrival of a probation officer and the monitoring company representative.

(ii) Mr Williams is to reside at the address specified in the Provision of Advice to Courts Report dated 28 May 2021 during the term of his sentence, and is not to move to any new residential address without the prior written approval of a probation officer.

(iii) Mr Williams is not to possess, consume or use any alcohol or drugs not prescribed to him.

(iv) Mr Williams is to attend an assessment for any programme or counselling to address his offending as directed by a probation officer, and is to attend and complete such counselling, treatment or programme as is recommended by the assessment and as is directed by and to the satisfaction of a probation officer.

(v) Mr Williams is not to associate with or contact any of his co-offenders without the prior written approval of a probation officer.

4. The standard post-detention conditions under s 80O of the Act are imposed together with the following special post-detention conditions under s 80N:

(i) Mr Williams is to attend an assessment for any programme or counselling to address his offending as directed by a probation officer, and is to attend and complete such counselling, treatment or programme as is recommended by the assessment and as is directed by and to the satisfaction of a probation officer;

(ii) Mr Williams is not to associate with or contact any of his co-offenders without the prior approval of a probation officer.
These conditions are to remain in place for a period of 12 months after the expiry of the sentence of home detention.
____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

[1] On 8 June 2021, the appellant, Rayon Williams, was sentenced to two years and one month’s imprisonment by Jagose J in the High Court at Auckland^[1] on two charges – one representative and the other specific – of money laundering.^[2]

• [1] Mr Williams appeals the sentence. He argues that the starting point adopted by the Judge was too high and that the Judge intended but omitted to give him a discount for remorse.

Factual background

• [2] We largely adopt the Judge’s factual summary. He noted as follows:

[4] On 20 January 2020, the Waikato Police Organised Crime Squad began an investigation into the manufacture and supply of methamphetamine in the Waikato and Auckland regions. That investigation uncovered what police characterise as a “highly organised and lucrative drug dealing business”.

[5] You are one of 29 people arrested in connection with the investigation. You are said to have been in the “third tier” of that group, not having a leading role in its organisation, but facilitative of its operation. You had access to “substantial amounts” of cash. You used a “very expensive” satellite telephone that prevented your communications from being intercepted. You are said to have had a financial interest in the drug offending. You worked closely with the group’s leadership, in particular discussing and demonstrating the purchase and balance of cryptocurrency accounts.

[6] Your own cryptocurrency wallet has not been located. Any amounts of cryptocurrency purchased or held by you cannot be identified. You last were employed in January 2019. You have had no legitimate source of income since then. Instead, you profited from the group’s methamphetamine supply business. Your bank accounts disclose numerous cash deposits of between $150 and $1,700, each made by an unknown individual or individuals.

[7] Your apparent transfer of $5,000 in cryptocurrency to an associate’s wallet, to demonstrate to yet another associate how cryptocurrency transactions work, gave rise to the representative charge of money laundering. On 10 June last year, you bought a Harley Davidson motorcycle from an unknown person in Tauranga. You paid $26,750 in cash. You registered the motorcycle under a fictious name. These facts gave rise to the specific charge of money laundering.

• [3] According to the summary of facts on which Mr Williams pleaded guilty, Mr Williams worked closely with Alan McQuade. The police say that Mr McQuade was the central figure involved in the criminal enterprise. Mr Williams, by his plea, has accepted this.

Sentencing decision

• [4] The Judge recorded the Crown’s acknowledgement that a sentence of home detention might be appropriate and noted that Mr Williams’s then counsel had made the same recommendation. He nevertheless observed that he was not bound by their views and that he had to come to his own decision.
• [5] After considering relevant materials and discussing the approach he was taking to the sentencing, the Judge addressed the starting point for Mr Williams’s offending. He referred to the applicable purposes and principles of sentencing and observed that there is no tariff decision for the offence of money laundering. He referred to two decisions of this Court. In one, the Court upheld a starting point sentence of three and a half to four years’ imprisonment and an end sentence of two years and three months’ imprisonment imposed on an offender involved in laundering profits from a large-scale methamphetamine-related criminal enterprise.^[3] In the other, this Court upheld a starting point sentence of five years and six months’ imprisonment for laundering approximately $700,000 derived from methamphetamine-related offending over an 18 month period.^[4]
• [6] The Judge considered that Mr Williams had taken a “facilitative role” in the methamphetamine-related offending in issue and that this was “... a significant role in the overall operation”.^[5] He considered that Mr Williams:

(a) had performed an operational function;

(b) had directed others;

(c) was motivated only by financial considerations;

(d) obtained a commercial profit; and

(e) had some awareness and understanding of the scale of the operation.

The Judge acknowledged that there was nothing to indicate how much money was laundered by Mr Williams. He was however satisfied, from the sums Mr Williams had received and disbursed and from the steps that Mr Williams had taken to conceal his activities, that Mr Williams’s offending was not insignificant. He placed Mr Williams’s offending in band 2 identified by this Court in Zhang v R, requiring a starting point sentence of two to nine years’ imprisonment.^[6] The Judge observed that this was consistent with other serious drug related money laundering sentences in the High Court.^[7] He considered that Mr Williams’ offending was aggravated by personal gain and by the premeditation involved in making the cryptocurrency arrangements and that both were connected to the very serious principal offending. He did not consider that Mr Williams’s offending had any mitigating features. He considered that a starting point in the range of three to four years’ imprisonment was available and he adopted a starting point of three years and three months’ imprisonment.

• [7] The Judge then turned to consider factors personal to Mr Williams. He did not consider that any uplift to the starting point sentence was required. He acknowledged that Mr Williams had expressed remorse. He did not consider that any discount was available for previous good character, but that a discount was available for personal and cultural factors that appeared to have led to Mr Williams’s offending. He also noted that Mr Williams had been on electronically monitored (EM) bail without incident for a little over 10 months, and that he had entered guilty pleas. The Judge allowed Mr Williams a 20 per cent discount for his pleas and a five per cent discount to recognise the role his traumatised childhood may have played in his subsequent life choices. He also allowed a discount of four months for the time that Mr Williams had spent on EM bail. He then rounded the resulting calculation down to reach the end sentence of two years and one month’s imprisonment.

The appeal

• [8] The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011. This Court must allow the appeal if it is satisfied that, for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.^[8] In any other case, the appeal must be dismissed.
• [9] This Court does not start afresh, nor simply substitute its own opinion for that of the original sentencer. Rather, there is an obligation on Mr Williams as the appellant to show that there was a material error made by the sentencing Judge.^[9] This Court will not intervene where the sentence imposed was within a range that can be properly justified by accepted sentencing principles.^[10]

Submissions

• [10] Mr Ewen, appearing for Mr Williams, argued that the starting point adopted by the Judge was too high. He advanced this submission by reference to four factors:

(a) the difference between the starting point advocated by the Crown – namely two years six months’ imprisonment to two years nine months’ imprisonment – and the starting point adopted by the Judge;

(b) the Judge mischaracterised Mr Williams’ role;

(c) the Judge did not adjust the money laundering sentencing decisions he relied on to take into account the adjustments made to class A drug sentencing levels by this Court in Zhang; and

(d) the Judge, having acknowledged that Mr Williams had expressed remorse and that he ought to receive a discount for this, failed to allow any discount for this factor.

• [11] Ms Hamilton, for the Crown, supported the starting point adopted by the Judge notwithstanding that it exceeded the starting point advocated by the Crown at sentencing. She argued that the sentencing memoranda filed by the Crown and by the defence simply represent the views of counsel and that they do not restrict a sentencing Judge’s approach to sentencing. She further noted that the starting point adopted by the Judge was toward the lower end of the sentences considered appropriate in Zhang for band 2 offending and also toward the lower end of the sentences imposed in the various High Court sentencing decisions cited by the Judge. She acknowledged that Mr Williams’ offending did not involve him directing others, but suggested that this was of little moment when the other indicia of the significant role played by Mr Williams were considered. She submitted that the starting point, whilst stern, was available. She acknowledged that the Judge identified remorse as a separate mitigating feature but did not further address it. She accepted that had credit been given for remorse, the end sentence would likely have been a short term of imprisonment, and that the Judge would then have been able to consider a sentence of home detention.

Analysis

• [12] We consider each of the arguments advanced for Mr Williams in turn.

Was the Judge obliged to fix a starting point within the range established by counsels’ submissions?

• [13] We do not consider that the Judge erred by adopting a starting point sentence higher than that advocated by the Crown and the defence. Sentencing is the responsibility of the sentencing Judge and submissions made by the Crown and by the defence do not bind the Judge whose duty it is to fix a just sentence in all the circumstances.
• [14] It has long been the duty of the Crown at sentencing to assist the sentencing Judge by providing information relevant to the sentencing decision.^[11] This duty has been formalised in the Criminal Procedure Rules 2012.^[12] In the High Court (and in any case in the District Court where the Crown has assumed or is about to assume responsibility for a proceeding prior to sentence) the Crown is required to file a sentencing memorandum. The memorandum must address the appropriate starting point and include copies of any decisions relied on that are not guideline judgments. The defence, or the defendant if unrepresented, is also required to file a sentencing memorandum, which again must identify the appropriate starting point. These memoranda serve to inform the Judge, along with the other information the Judge will receive as part of the sentencing process. The sentencing Judge must assess and take into account this information. If there is a significant discrepancy between the starting point or points advanced by counsel and any starting point being considered by the Judge, it will usually be good practice to discuss that discrepancy with counsel. The Judge must then give a concise account of the materials taken into account, identify the facts on which the sentencing has proceeded and plainly state the reasons for the sentence imposed.^[13]

Mr Williams’s role

• [15] We accept that the Judge erred when he observed that Mr Williams directed others. There is nothing in the summary of facts to which Mr Williams pleaded guilty which suggests this. We do not however consider that much turns on this. In Zhang, it was held that due regard should be given to the role played by the offender so that the sentencing Judge can properly assess the seriousness of the conduct and criminality involved, and thereby the culpability inherent in the offending.^[14] It was open to the Judge from the summary of facts on which the pleas were entered to conclude that Mr Williams had an operational or management function within the criminal enterprise, that Mr Williams was motivated either solely or primarily by the possibility of financial advantage, that he received a commercial profit and that he had some awareness or understanding of the scale of the operation. All of these various indicia point to Mr Williams taking a significant role in the criminal enterprise. Mr Ewen responsibly concluded that the difference between four out of five and five out of five indicia of role is modest, though pointed out that even a modest difference particularly affects the outcome in this case.

Application of Zhang v R to money laundering

• [16] Next we consider the impact of Zhang on sentencing for the offence of money laundering.
• [17] The Judge cited Wallace, in which this Court recognised that those who launder money for drug dealers are nearly as culpable as those who actually participate in the dealing. They make it possible for those who deal in drugs to reap a profit from that activity. Sentences for money laundering should therefore bear a relationship to sentences for the principal offending — the more serious the principal offending, the more serious the laundering.^[15]
• [18] These observations retain general validity. The manufacturer, the dealer and the treasurer are all involved in the overall criminal enterprise. However, it is always necessary to focus on the offender’s role in drug offending and allowances must be made for the differences in the maximum sentences. We accept Mr Ewen’s submission that some care may be needed when considering sentencing decisions for money laundering that predate the revised sentencing guidelines set out in Zhang. Some methamphetamine offending now attracts lower starting points than was formerly the case.
• [19] While the Judge did not expressly acknowledge this, we are not persuaded that the starting point sentence adopted by the Judge was too high. The Judge considered, by reference primarily to role, that Mr Williams’ offending fell within band 2 discussed in Zhang. Mr Ewen did not dispute this categorisation.
• [20] Band 2 is appropriate for offending involving less than 250 grams of methamphetamine. There is nothing in the summary of facts to which Mr Williams pleaded guilty directly indicating how much methamphetamine was involved in the offending with which Mr Williams was involved. It rather records that the police investigation uncovered a highly organised and lucrative drug dealing business with its primary focus on the “large scale manufacture and distribution of methamphetamine”. It also records that during the course of the investigation, the police located approximately 125 kilograms of iodine which is a substance used in the manufacture of methamphetamine. That amount of iodine was capable of producing in excess of 100 kilograms of methamphetamine. Given these matters, and given Mr Williams’s significant role, we are not persuaded that the adoption of a starting point towards the bottom of the range considered appropriate for band 2 offending has resulted in a starting point which was too high. The starting point is broadly consistent with the starting points adopted for money laundering in two post-Zhang decisions — R v Daniels^[16] (cited by the Judge) and R v Wang^[17] — both in the High Court. Indeed, in our view, it would have been open to the Judge to have adopted a higher starting point sentence.

Remorse

• [21] We now turn to the final factor relied on by Mr Ewen – remorse.
• [22] The Judge accepted that Mr Williams had expressed remorse.^[18] This was despite the writer of the Provision of Advice to Courts report recording his view that there was no clear statement of remorse by Mr Williams for his offending. However, the Judge did have a letter from Mr Williams which clearly expressed remorse. He also had a letter from Mr Williams’ partner who, amongst other things, recorded that Mr Williams has trouble expressing himself and his remorse but that she knew that he was sorry. Mr Williams’ partner also told the Court that Mr Williams had apologised to her for what he had put the family through.
• [23] The Judge recorded that Mr Williams should be given a discount for remorse but none was included in the sentence calculation. It appears to have been overlooked. In our view, the appropriate discount for the remorse expressed by Mr Williams was five per cent of the starting point sentence or, with rounding, two months.
• [24] This would take the end sentence to one of one year and 11 months’ imprisonment. This is a short-term sentence of imprisonment^[19] and home detention was available to the Court.^[20]

Home detention

• [25] In Zhang, this Court accepted that community-based sentences can be both an appropriate starting point sentence as well as an appropriate end sentence for low-level methamphetamine-related offending^[21] and the Crown acknowledged that home detention could be an appropriate response for Mr Williams’s offending. The proposed address has been assessed as suitable. The occupier has consented to Mr Williams serving his sentence at the property. There are no reported concerns for a child who resides at the property. Imposing a sentence of home detention is consistent with the statutory imperative of imposing the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences.^[22] While Mr Williams has previously failed to comply with community-based sentences, it is notable that he was on EM bail for a period of some 10 months without incident. We accept that a community-based sentence is appropriate in the circumstances and that such a sentence sufficiently deters and denounces Mr Williams’s conduct.
• [26] Mr Williams has already spent approximately six weeks in custody. An offender who is sentenced to a short term of imprisonment becomes eligible for parole after he or she has served one half of the sentence.^[23] We therefore allow Mr Williams a credit of three months for the time he has spent in custody. This would take the sentence to one of one year and eight months, or 20 months’ imprisonment. Applying the same rationale, an end sentence of one year and eight months’ imprisonment commutes to a sentence of 10 months’ home detention.

Result

• [27] The appeal is allowed.
• [28] The sentence of two years and one month’s imprisonment imposed by the Judge is vacated. A sentence of 10 months’ home detention is substituted therefore.
• [29] The sentence of home detention is subject to the standard conditions set out in s 80C(2) of the Sentencing Act and to the following special conditions imposed under s 80D:

(i) Mr Williams is to travel directly from the prison where he is currently being held to the address specified in the Provision of Advice to Courts Report dated 28 May 2021, and await the arrival of a probation officer and the monitoring company representative.

(ii) Mr Williams is to reside at the address specified in the Provision of Advice to Courts Report dated 28 May 2021 during the term of his sentence, and is not to move to any new residential address without the prior written approval of a probation officer.

(iii) Mr Williams is not to possess, consume or use any alcohol or drugs not prescribed to him.

(iv) Mr Williams is to attend an assessment for any programme or counselling to address his offending as directed by a probation officer, and is to attend and complete such counselling, treatment or programme as is recommended by the assessment and as is directed by and to the satisfaction of a probation officer.^[24]

(v) Mr Williams is not to associate with or contact any of his co-offenders without the prior written approval of a probation officer.

• [30] We also impose the standard post-detention conditions under s 80O of the Act together with the following special post-detention conditions under s 80N:

(i) Mr Williams is to attend an assessment for any programme or counselling to address his offending as directed by a probation officer, and is to attend and complete such counselling, treatment or programme as is recommended by the assessment and as is directed by and to the satisfaction of a probation officer;

(ii) Mr Williams is not to associate with or contact any of his co-offenders without the prior approval of a probation officer.

These conditions are to remain in place for a period of 12 months after the expiry of the sentence of home detention.





Solicitors:
Crown Solicitor, Hamilton for Respondent

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^[1] R v Williams [2021] NZHC 1338.

^[2] Crimes Act 1961, s 243(2). Maximum penalty seven years’ imprisonment.

^[3] R v Wallace CA415/98, 16 December 1998.

^[4] Zhang v R [2010] NZCA 481.

^[5] R v Williams, above n 1, at [17].

^[6] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].

^[7] The Judge referred to: R v Daniels [2020] NZHC 275 (starting point: six years’ imprisonment); R v Williams [2018] NZHC 2731 (starting point: two years and three months’ imprisonment); R v Le [2018] NZHC 2199 (starting point: four years’ imprisonment); R v Chase [2018] NZHC 1022 (starting point: three years and nine months’ imprisonment); R v Henry [2015] NZHC 1684 (starting point: two years and six months’ imprisonment; R v Karpavicius [2013] NZHC 3095 (starting point: six years and three months’ imprisonment); McCamish v Police HC Auckland CRI‑2008-404-389, 18 March 2009 (starting point: three years and six months’ imprisonment); and R v Sorby HC Auckland TO22561, 30 May 2003 (starting point: three years and three months’ imprisonment).

^[8] Criminal Procedure Act 2011, s 250.

^[9] Tutakangahau v R [2014] NZCA 279 at [26]–[36].

^[10] At [36].

^[11] Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at [SAA3.06].

^[12] Criminal Procedure Rules 2012, rr 5A.4–5A.5.

^[13] Sentencing Act 2002, s 31; and see Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.

^[14] Zhang v R, above n 6, at [10] and [118]–[127].

^[15] R v Wallace, above n 3, at 8–9.

^[16] R v Daniels, above n 7.

^[17] R v Wang [2021] NZHC 445 (upholding a starting point of three years’ imprisonment imposed in the District Court). The High Court held a starting point of three years and six months was more appropriate considering the scale of offending, which involved approximately $327,000 though the amount could have been higher.

^[18] R v Williams, above n 1, at [22].

^[19] Parole Act 2002, s 4(1) definition of “short-term imprisonment”.

^[20] Sentencing Act 2002, s 15A(1)(b).

^[21] Zhang v R, above n 6, at [123].

^[22] Sentencing Act 2002, ss 8(g) and 10A.

^[23] Parole Act 2002, ss 20(1) and 86(1).

^[24] We record that Mr Ewen expressed some reservation as to the appropriateness of this condition but accepted that this was not the case to argue the point. In the absence of full argument, we take the issue no further.