|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of New Zealand |
Last Updated: 8 May 2023
|
|
|
|
BETWEEN |
JUDI-ANNE RAUPUTIPUTI WILLIAMS Appellant |
|
|
AND |
THE KING Respondent |
|
Hearing: |
20 March 2023 |
|
Court: |
Clifford, Dunningham and Cull JJ |
|
Counsel: |
C G Farquhar and M S C Rollason for Appellant L J Sullivan for Respondent |
|
Judgment: |
5 May 2023 at 11.00 am |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Dunningham J)
Introduction
[1] On 18 July 2022, Judi-Anne Rauputiputi Williams was sentenced by van Bohemen J to four years and eight months’ imprisonment[1] on representative charges of supplying methamphetamine, of offering to supply methamphetamine,[2] and a charge of participating in an organised criminal group.[3]
[2] Ms Williams appeals her sentence on the following grounds:
(a) the Judge erred by setting an excessive starting point; and(b) the Judge erred by applying insufficient discounts to recognise the substantive matters raised by the s 27 report, and her potential for rehabilitation and remorse.
Background
[3] Ms Williams was convicted along with six co-offenders as a result of a police investigation into the manufacture and supply of methamphetamine within the Waikato region. Much of the evidence was gathered through the interception of communications following the issue of surveillance device warrants.
[4] The individuals identified through the investigation included:
(a) Mr Michael Ormsby, who was a senior member of the Mongrel Mob Waikato chapter and the main supplier of money to the organised criminal group in order to facilitate the manufacture and supply of methamphetamine.(b) Mr Stephen Griffiths, who was the syndicate’s methamphetamine manufacturer. He worked beneath Mr Ormsby, Mr Heller and Mr Smith. He directed Mr Smith and Mr Heller to obtain precursor materials and then manufacture methamphetamine.
(c) Mr James Smith, who was a member of the Mongrel Mob world chapter and a close associate of Mr Heller and Mr Griffiths. He assisted Mr Griffiths in the task of manufacturing methamphetamine and would obtain his portion of the finished product to supply.
(d) Mr Richard Heller, who was a senior member of the Mongrel Mob rogue chapter, and sat below Mr Ormsby. He was the partner of Ms Williams and facilitated the wholesale supply of methamphetamine from Mr Griffiths to Ms Williams and others.
(e) Ms Williams, who sat below Mr Heller and facilitated the day-to-day supply of methamphetamine to a regular customer base, as well as running a number of “drug houses” in the community, including one operated by Mr King. Ms Williams used other family members beneath her to assist in the day-to-day operation, including her daughter-in-law, Ms Timoko.
(f) Mr Neville King, who sat beneath Ms Williams and Mr Heller, and operated a “drug house” in Fairfield, Hamilton for the purpose of supplying methamphetamine for Ms Williams and Mr Heller to his customer base. He would also source wholesale quantities of methamphetamine for Ms Williams when she was waiting for Mr Griffiths.
(g) Ms Brittany Timoko, who sat beneath Ms Williams and supplied small quantities of methamphetamine and facilitated the collection of money for Ms Williams.
[5] Police identified that Ms Williams supplied methamphetamine on at least 74 occasions. However, the quantity was only specified on 36 of the 74 transactions, and on those cases, she supplied a total of at least 392.55 g of methamphetamine. Police further identified that in the same period Ms Williams offered to supply methamphetamine on at least 16 occasions. Again, the amount offered was not always stipulated. A quantity was specified on nine of the 16 occasions and totalled at least 70.6 g of methamphetamine.
Sentencing
[6] The seven defendants were not sentenced together. Some of the defendants sought sentencing indications and they all entered guilty pleas at different stages in 2021 and 2022, resulting in five different High Court Judges assessing the appropriate starting points for the defendants at different hearings.[4] In the end, Wylie J sentenced Mr King on 3 February 2022,[5] Lang J sentenced Mr Griffiths on 18 February 2022,[6] van Bohemen J sentenced Mr Ormsby on 15 July 2022,[7] and Powell J sentenced Mr Smith, Mr Heller and Ms Timoko on 11 August 2022.[8]
[7] Ms Williams was sentenced by van Bohemen J on 18 July 2022, having pleaded guilty two weeks prior to trial and following the Crown’s agreement not to offer evidence on two further charges of conspiring to supply methamphetamine,[9] and possessing methamphetamine for supply.[10]
[8] In sentencing Ms Williams, the Judge noted the total identifiable amount of methamphetamine she supplied or offered to supply was 463.15 g.[11] He observed that, without taking into account the many other occasions on which she supplied or offered to supply methamphetamine, that placed her in band three of the sentencing bands set out by the Court of Appeal in Zhang v R for methamphetamine related offending.[12] This band has a starting point of between six and 12 years’ imprisonment.[13] In terms of the categories of role described in Zhang, being “leading”, “significant” and “lesser”, the Judge determined her role was “significant”. He said she clearly held an operational function within the chain, she was motivated by commercial gain, and she had an awareness and understanding of the scale of the operation because of her association with other group members, particularly Mr Heller who was her partner and the father of two of her children.[14]
[9] The Judge then referred to the starting points adopted for her co-offenders (whether on sentencing or on an accepted sentencing indication).[15] The starting point, as indicated by Powell J, for Mr Heller, whose offending involved an identifiable quantity of some 868 g of methamphetamine, was 10 and a half years. The starting point for Mr King’s offending, which involved approximately 350 g, was eight years and nine months. The Judge concluded:
[55] Given you supplied or offered to supply at least 463.15 grams of methamphetamine, which is close to the top of band three, and have admitted supplying or offering to supply on 45 other occasions, but because of the considerations I referred to earlier, I consider a starting point of nine years and two months’ imprisonment is appropriate. That places you between Mr Heller and Mr King, but closer to Mr King.
[10] In terms of the guilty plea discount, the Judge noted that although Ms Williams’ plea was not given at the earliest opportunity, three of her co-offenders had received, or were advised they would receive, a 25 per cent discount, and he agreed with the Crown’s submission that, for consistency, she should receive the same discount.[16] The Judge declined to uplift for previous convictions, noting he saw little connection between her earlier offending and her involvement in the commercial distribution of methamphetamine.[17]
[11] The Judge then spent some time outlining Ms Williams’ personal circumstances, which were fully traversed in the s 27 report prepared by Ms Raecheal Riddell.[18] While Ms Williams had a loving relationship with her father and did well at school, she was beaten by her mother and sexually abused from an early age by one of her cousins. She was introduced to drugs and alcohol at the age of nine and had her first child at 14. She and her first child then witnessed her father’s death in traumatic circumstances. She then had a series of violent relationships and was regularly beaten by the partner with whom she had five of her nine children. Through her last partner, she was drawn into the world of the Mongrel Mob and criminality, which led to her current offending.
[12] Although it was not explicitly stated in the s 27 report, the Judge concluded that what Ms Williams had experienced in her early childhood and through her series of violent relationships, was causally connected to her offending. It had led to her subservience to her partners, including Mr Heller, and to her involvement in commercial drug dealing. The Judge was also satisfied that it led to her own use of drugs.
[13] Finally, he accepted that her remorse and her commitment not to reoffend were genuine, particularly noting the strong bond she had with her children would assist her in not re-engaging in drug dealing.[19] He was satisfied that a discount of 17 per cent was appropriate in her case to reflect these matters.[20] With a further discount of eight months for time spent on EM bail,[21] an end sentence of four years and eight months’ imprisonment was imposed.[22] The Judge declined to impose a minimum period of imprisonment.[23]
Did the Judge err by adopting an excessive starting point?
[14] Ms Farquhar submits that if comparable case law is considered, the appropriate starting point should have been no more than eight years. While she acknowledges the Judge needed to have regard to the starting points taken for co-offenders, in her submission Mr King’s starting point was too high and, in an effort to achieve parity, the Judge failed to set Ms Williams’ starting points at an appropriate level.
[15] In arguing that the starting point was too high, Ms Farquhar refers the Court to four Court of Appeal authorities.[24] In particular, she focused on the decisions in Parkes v R and Clark v R to submit the starting points adopted for Mr King and Ms Williams were too high.
[16] In Parkes v R, the Court of Appeal found Mr Parkes’ offending involved at least 563.8 g of methamphetamine and his role was a “leading role” in the supply enterprise he was engaged in.[25] While Mr Parkes was first sentenced before the decision in Zhang v R issued, the Court of Appeal held that had he been sentenced under Zhang, it is likely a lower starting point would have been adopted.[26] The Court of Appeal held that since he supplied well over 500 g of methamphetamine and played a leading role, his starting point should be nine years’ imprisonment, being at the bottom of band four.[27] That starting point was applied when determining his appeal.
[17] In Clark v R, Mr Clark was convicted of three charges of possessing methamphetamine for supply, one charge of conspiring to supply methamphetamine and one charge of possession of an offensive weapon.[28] He was found in possession of 583 g of methamphetamine and conspired with others to obtain a further 137 g. The Court of Appeal agreed that Mr Clark had a significant role in the offending and did not disturb the starting point of nine years and six months set at Mr Clark’s sentencing.[29]
[18] Ms Farquhar then compares Ms Williams’ role with Mr King’s, noting that an offender’s role is a fundamental consideration for the Court in assessing culpability and arriving at the appropriate starting point.[30] Here, she submits that although Ms Williams supplied more methamphetamine than Mr King, their roles, when assessed in the wider context of the operation, were more or less the same. They were both motivated by profit, and they both had their own customers they supplied methamphetamine to. However, Ms Williams never supplied wholesale amounts of methamphetamine to anyone, but Mr King did supply Ms Williams in this way when she was waiting for supply from Mr Griffiths. Ms Farquhar says both Ms Williams and Mr King were distanced from the more serious offending of Mr Heller and Mr Smith who were involved in directing the manufacture of methamphetamine and taking possession of reasonably large quantities from the manufacturers. While the Crown summary of facts places Mr King as “beneath” Ms Williams, in Ms Farquhar’s submission, their roles were more comparable than factually distinct.
[19] Ms Farquhar argues the starting points taken for Ms Williams and Mr King’s offending were in the same range, or very close to the starting points in cases such as Clark and Parkes, which involved more serious offending. In her submission, in an effort to achieve parity with Mr King, the Judge failed to ensure the starting point was consistent with other cases. Furthermore, the starting points for Mr King and Ms Williams were not, in her submission, consistent with Mr Heller’s. Ms Williams’ starting point was only 16 months less than that taken for Mr Heller, who dealt 404 g more methamphetamine and played, in her view, a vastly more significant role.
Discussion
[20] There was no dispute that the starting point for methamphetamine begins with quantum, followed by consideration of the offender’s role in that offending.[31] The identifiable quantity involved in Ms Williams’ offending was 463.15 g, although she admitted a number of further transactions for which the quantum was not specified. In these circumstances, we are satisfied the Judge correctly placed Ms Williams’ offending in band three of Zhang v R, which applies to quantities between 250 to 500 g.[32] By reference to quantum alone, her offending was at the upper end of band three.
[21] Turning next to her role, there was no dispute that Ms Williams’ role was “significant” in terms of the Zhang categories. Given her association with Mr Heller, it was clear she had an awareness and understanding of the scale of the operation. She was in direct communication with those above her in the hierarchy during the manufacturing process and would relay progress updates to Mr Ormsby. She would then receive bulk quantities of the manufactured drug to supply on to her customers.
[22] As the Crown points out, there is no indication she was coerced by Mr Heller, nor that her relationship with him was violent or abusive generally. She, in turn, directed others below her and ran a number of drug houses. Although she was using methamphetamine at the time, her offending was primarily motivated by financial gain rather than addiction and she admits she was attracted by the financial freedom that methamphetamine dealing gave her. Having regard to the quantum of methamphetamine involved, and her significant role in the offending, the decision to place her almost exactly in the middle of band three is appropriate.
[23] The reference to other Court of Appeal authorities does not change that conclusion. In Clark, the offending involved more methamphetamine (583 g for possession for supply and 137 g for conspiring to obtain), but equally Mr Clark’s starting point was four months higher at nine years six months.[33] Mr Parkes also supplied more methamphetamine (563.8 g), and on appeal, his role was described as “leading”.[34]
[24] In our view, having regard to both the quantum and the significant role Ms Williams played, there was no error in the Judge placing her in the middle of band three and, selecting a starting point of nine years and two months. This ground of appeal is rejected.
Did the Judge give sufficient credit for personal mitigating features?
[25] Ms Farquhar submits the 17 per cent global discount applied by van Bohemen J for Ms Williams’ personal mitigating factors was insufficient, saying it was inconsistent with the mandate provided for in Zhang, and confirmed by the Supreme Court in Berkland.[35]
[26] With reference to the s 27 report, Ms Farquhar submits that Ms Williams’ offending is borne out of deprivation and appalling hardship, saying she was sexually abused as a child, used drugs and alcohol while at school, then became pregnant at 14 and was violently abused by her partners. She has ended up a partner of a gang member and addicted to methamphetamine.
[27] Ms Farquhar points out there were many encouraging signs in both the s 27 report and the pre-sentence report that Ms Williams was ready to make a change in her life. She displayed a depth of insight into her offending and acknowledged that she had hurt others as a result of her actions.
[28] Ms Farquhar also observed that the domestic element in this offending was relevant, noting the Judge accepted Ms Williams played a subservient role to Mr Heller, which would factor into the assessment of her culpability.[36] Furthermore, the Judge accepted that a nexus was established between Ms Williams’ addiction and the offending.
[29] For these reasons, she submits the Court should apply at least a global 30 per cent discount to mark the personal circumstances raised in the s 27 report as well as Ms Williams’ rehabilitative efforts, insight into, and remorsefulness for her offending. She points out that this would be consistent with the combined discounts applied at sentencing for Mr Smith, Mr Heller and Mr King for their personal mitigating features, saying the principle of parity is equally applicable at the second stage of sentencing.
Discussion
[30] In Berkland v R, the Supreme Court recognised that background factors such as addiction, and social, cultural and economic deprivation can mitigate a sentence where those factors have contributed causatively to the offending; that is, if they help to explain in some rational way why the offender has come to offend.[37] However, the Court also pointed out that “the more serious and carefully orchestrated the offending, the more the courts are likely to emphasise the choice made by the offender to offend.”[38] Other sentencing purposes may then become more prominent, particularly to protect the community from the harm associated with drug dealing.[39]
[31] When applied to Mr Berkland, the evidence revealed his upbringing involved poverty, trauma, chaotic home circumstances and poor educational outcomes.[40] He engaged in regular abuse of drugs and alcohol from childhood, commenced methamphetamine use in his early 30s and became a heavy user following the death of his older brother to whom he was close.[41] In terms of rehabilitation and character, Mr Berkland’s efforts at rehabilitation were described as “genuinely exceptional and [warranting] a significant sentencing response despite the gravity of his offending”.[42] He had references which showed he had taken every opportunity offered to him before sentencing and had become a positive role model for his peers in the drug treatment unit programme.[43] The Court held he should have received an overall discount of 20 per cent, comprising:[44]
(a) a discount of 10 per cent for his deprived background and the role of addiction in his offending; and(b) a discount of 10 per cent to account for his efforts at rehabilitation.
[32] In our view, Ms Williams’ background is comparable to that of Mr Berkland and, while she has not been able to demonstrate such commitment to rehabilitation, there is clear evidence that she has insight into her offending and is committed to change for the sake of her children. It is difficult, therefore, to see that the 17 per cent that she was afforded at sentencing is inconsistent with the 20 per cent that Mr Berkland was afforded on appeal by the Supreme Court.
[33] We acknowledge that in Solicitor-General v Heta, it was held a discount as high as 30 per cent could be justified for cultural deprivation and personal mitigating factors.[45] However, that case cautioned against constricting the Judge from doing what was appropriate on the particular facts of the case noting, that there was no “discount ‘range’ for deprivation per se”.[46] Some cases had relatively modest discounts in the range of 0–6 per cent, while in other circumstances, larger discounts for deprivation and trauma had been made.[47]
[34] In Zhang v R, the Court reiterated that personal circumstances of an offender are not excluded when sentencing for drug-related offending but, “may well have a more limited temporal effect in the context of serious commercial drug dealing”.[48] Furthermore, the following mitigating considerations may be particularly germane to methamphetamine offending:[49]
(a) addiction;(b) mental health;
(c) duress or undue influence; and
(d) social, cultural and economic deprivation.
[35] In Zhang, discounts for personal circumstances were afforded to a number of the appellants. Ms Crighton, who supplied or offered to supply 3.75 g to pay for her own drug use and to supply her partner with methamphetamine, at least in part to prevent violence, was afforded 30 per cent for her personal circumstances.[50] These included experiencing and witnessing abuse during her childhood, moving in and out of foster care during her teenage years, experiencing abusive and violent relationships, being diagnosed with anxiety and depression and showing symptoms of post-traumatic stress disorder (PTSD).[51]
[36] Similarly, Ms Phillips was involved in a large drug transaction as a “driving companion” but her own offending involved low level transactions for the purpose of feeding her drug addiction.[52] A discount of 30 per cent was allowed for her personal circumstances with the Court agreeing that mental health and addiction issues contributed to the offending.[53] Again, there was a diagnosis of PTSD at the time of offending, and she had experienced significant trauma in her past, and had had volatile relationships which contributed to depression and to her using methamphetamine as a coping mechanism.[54] The Court also noted she was completing a residential alcohol and other drug programme and had remained addiction free for some time.[55] However, it is clear these offenders were less culpable than Ms Williams.
[37] However, Ms Farquhar also submits the discounts Ms Williams received for personal mitigating factors were inconsistent with that for her co-offenders. In that regard, Mr Smith, who was involved in dealing at least 988.5 g, received a 25 per cent discount for relevant background, loss of culture, addiction and mental health issues.[56] However, his background is arguably worse than Ms Williams. He had a significant history of physical and sexual abuse as a child that continued when he was put into care. He left school functionally illiterate and was exposed to drugs and alcohol, including methamphetamine, from age 15. During this period, he was introduced to criminal associates and ultimately the Mongrel Mob. There was evidence he was suffering from PTSD as well as having a traumatic brain injury with ongoing effects on his brain function, and was also considered likely to meet the criteria for a major depressive order. However, in addition to the 25 per cent allowed for these factors, a further five per cent discount was allowed for rehabilitative potential, although noting that there had been “relatively few signs of rehabilitation” to date.[57]
[38] Similarly, Mr Heller had a turbulent childhood having suffered significant physical and sexual abuse in foster homes and state institutions, resulting in early exposure to drug and alcohol abuse.[58] Those same experiences introduced him to criminal associates from a young age, including the Mongrel Mob and, again, there was a credible basis for considering that he suffered from PTSD. For those matters, the Judge fixed the appropriate discount at 15 per cent.[59] However, he gave a discrete discount for rehabilitative potential.[60] While he was only beginning to work on alcohol and drug addiction issues and reconnecting with Te Ao Māori, the Judge considered a further discount of 15 per cent was warranted, giving a total discount for these factors of 30 per cent.
[39] In our view, placed alongside the discounts that Mr Smith and Mr Heller received for background factors and addiction, the 17 per cent discount Ms Williams received appears consistent. What is not consistent is that they were afforded separate discounts for rehabilitative potential which was included within the discount of 17 per cent allowed for Ms Williams.
[40] In our view, particularly having regard to the discounts afforded to her partner Mr Heller, for remorse and rehabilitative potential, there is a gross and unjustified disparity which should be remedied on appeal.[61] It is immaterial that Mr Smith and Mr Heller were sentenced subsequently to Ms Williams.[62]
[41] The Judge accepted that Ms Williams’ remorse and her commitment not to reoffend were genuine.[63] The pre-sentence report noted that she was keen to do any necessary rehabilitative programmes, saying:
I have every intention of completing them. I want to be on track. I don’t want my grandchildren growing and seeing me in prison. I will do anything that could help me to become a better person and be back with my family.
She acknowledged, too, that “[a] lot of people were hurt because of my poor choices”. The s 27 report writer spoke to her two adult children who supported their mother’s efforts to rehabilitate and move forward. Her son said he knows she did not want her mokopuna to think that prison was a normal way of life. Her desire to rehabilitate was also set out in an articulate letter she wrote to the Court, prior to sentencing. The letter recorded shame and embarrassment at her offending, awareness of the damage she had done to her family and the community, and her desire to make a positive change.
[42] In our view, this evidence warranted a separate discount to the background factors and cultural deprivation that was causative of her offending, and we would afford an additional eight per cent discount for that, so that the total discount for background factors and remorse and rehabilitative potential is 25 per cent.
[43] This results in a total discount of 50 per cent or 55 months on the starting point of nine years and two months’ imprisonment. That leads to a sentence of four years seven months’ imprisonment from which must be deducted the further eight months to reflect her time on EM bail. The outcome is an end sentence of three years and 11 months’ imprisonment.
Result
[44] The appeal against sentence is allowed. We quash the sentence of four years and eight months’ imprisonment on the charges of supplying methamphetamine, of offering to supply methamphetamine and of participating in an organised criminal group.
[45] On each of those offences, a concurrent sentence of three years and 11
months’ imprisonment is imposed.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
[1] R v Williams [2022] NZHC 1712.
[2] Misuse of Drugs Act 1975, s 6(1)(c); and Crimes Act 1961, s 66.
[3] Crimes Act 1961, s 98A.
[4] In addition to the four judges involved in sentencing, Venning J gave the sentencing indication for Mr Smith, and his starting point was adopted by Powell J in sentencing: R v Smith and Ors [2022] NZHC 1975 at [3].
[5] R v King [2022] NZHC 85.
[6] R v Griffiths [2022] NZHC 218.
[7] R v Ormsby [2022] NZHC 1711.
[8] R v Smith and Ors, above n 4.
[9] Misuse of Drugs Act 1975, s 6(2A).
[10] Section 6(1)(f) and (2).
[11] R v Williams, above n 1 at [45].
[12] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[13] At [125].
[14] R v Williams, above n 1 at [48]–[49].
[15] At [54].
[16] At [57]–[60].
[17] At [63].
[18] At [64]–[68].
[19] At [70].
[20] At [71].
[21] At [74].
[22] At [75].
[23] At [82].
[24] Smith v R [2020] NZCA 586; Parkes v R [2020] NZCA 203; Clark v R [2020] NZCA 641; and Cullen v R [2022] NZCA 308.
[25] Parkes v R, above n 24 at [42] and [49].
[26] At [52].
[27] At [51]–[52].
[28] Clark v R, above n 24.
[29] At [17].
[30] Zhang v R, above n 12 at [118]; and Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [63].
[31] Berkland v R, above n 30 at [45].
[32] Zhang v R, above n 12 at [125].
[33] Clark v R, above n 24.
[34] Parkes v R, above n 24.
[35] Berkland v R, above n 30.
[36] R v Williams, above n 1, at [26] citing Zhang v R, above n 12 at [126], where engagement by pressure, coercion or intimation suggests a “lesser” role.
[37] Berkland v R, above n 30 at [109], [120] and [128].
[38] At [16(c)].
[39] At [16(c)].
[40] At [156].
[41] At [157].
[42] At [160].
[43] At [159].
[44] At [162].
[45] Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.
[46] At [62].
[47] At [62].
[48] Zhang v R, above n 12 at [133].
[49] At [137].
[50] At [196], [199] and [201].
[51] At [199].
[52] At [215].
[53] At [224].
[54] At [221] and [223].
[55] At [224].
[56] R v Smith, above n 4 at [46].
[57] At [47]–[48].
[58] At [54].
[59] At [55].
[60] At [57].
[61] Eketone-Mahara v R [2011] NZCA 71 at [25].
[62] R v Urlich [1981] NZCA 54; [1981] 1 NZLR 310.
[63] R v Williams, above n 1 at [70].
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2023/156.html