Police v Williams [2017] NZDC 10777 (24 May 2017)

Last Updated: 4 September 2017

EDITORIAL NOTE: NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT HAMILTON

CRI-2017-019-000993

CRI-2017-019-000994 [2017] NZDC 10777

NEW ZEALAND POLICE

Prosecutor

v

[YASMIN WILLIAMS] [SUE ALLEN] Defendants

Hearing: 24 May 2017

Appearances: Sergeant J Broom for the Prosecutor A Jones for the Defendant [Williams] G Prentice for the Defendant [Allen]

Judgment: 24 May 2017

_{NOTES OF JUDGE M L S F BURNETT ON SENTENCING}

[1] Ms [Williams] is 27 years of age and she, along with her mother, Mrs [Allen] who is 56 years of age, are both here today for sentence, having earlier pleaded guilty and been convicted on one charge of conspiring to defeat justice. It carries a maximum penalty of seven years’ imprisonment.

[2] The circumstances are that between the dates in the charge sheet (which is

18 July and 3 September 2016) Ms [Williams] and her mother and the child’s father engaged in a series of texts for the purpose of disguising who or what had transpired in relation to the 22 month old daughter of Ms [Williams] and Mr [Akers-Graham],

_{the child’s father.}

NEW ZEALAND POLICE v YASMIN WILLIAMS [2017] NZDC 10777 [24 May 2017]

[3] The circumstances have been that Ms [Williams] has a number of children - [details deleted]. Each child has been removed from her care. She was allowed to have two of her children to return to her care on the basis that she did not have an association with the child’s father, Mr [Akers-Graham]. She ignored this and had an ongoing relationship. It seems that she and Mr [Akers-Graham] were cohabiting together and the two young children were returned to her without CYF knowing that Mr [Akers-Graham] was in the home.

[4] What happened is that the young child, the 22 month old child, sustained a significant fracture to her right arm, the fracture to both her right radius and ulna bones, and such a fracture is plainly regarded by the medical authorities as being a non-accidental injury. When Ms [Williams] was at the medical centre with the child, not surprisingly the authorities called police and police turned up to investigate. Ms [Williams] immediately set about entering into a text conversation to ensure that the stories that she gave police Mr [Akers-Graham] gave police and Mrs [Allen] gave police was that the injury was caused by the elder sibling, the [age deleted] year old pulling the child off the deck and that the children had been in the care of Mrs [Allen] at the time. This has not been accepted by authorities, as I say, that it is a non-accidental injury.

[5] Partway through sentencing Ms [Williams] at an earlier point in January, there was some discussion as to whether or not Ms [Williams] could assist the police with determining exactly what had happened and so an adjournment was granted from 18 January to today’s date to enable that to happen. Ms [Williams] advises the police that Mrs [Allen] was in charge of the children. Mrs [Allen], the grandmother of the children, denies this. Mr [Akers-Graham] is due in the future to stand trial before a jury on the charge of conspiracy. There has been no charge laid of injuring the child.

[6] The matter comes back for sentencing and the position is that Ms [Williams] says that her mother was in charge of the children at the time when the injury was inflicted on the little child. Mrs [Allen] denies this. Mr Prentice for Mrs [Allen] plainly submits that Mrs [Allen] has in effect been set up by Ms [Williams]. There is a large silence as to whether or not the father of the child is the perpetrator of the

injury to the little child. So far that has not been able to be resolved so both the mother and the grandmother of the child are here today for sentencing.

[7] The aggravating features of the offending are the degree of planning and premeditation. This is a case of obstructing justice which, if successful, would have resulted in the ongoing danger to the health and safety of the extremely vulnerable child. The obstruction was in the circumstances where Ms [Williams] had wilfully breached explicit conditions imposed for the protection of her child, namely that she not be in a domestic relationship with the child’s father.

[8] There is a high degree of wilful risk taking as to the likely ongoing danger to the child and the consequences of conspiring to obstruct the course of justice may have resulted in real ongoing danger to the vulnerable child, as the purpose of the conspiracy was to avoid prosecution and to have the child returned to the same domestic arrangement in which the child sustained the injury, so there was a high likelihood of immediate and potential consequences dangerous to the child had the conspiracy been successful carried out.

[9] There are really no mitigating features of the offending. The mitigating features to be taken into account are the guilty plea, a relatively early guilty plea, so there is a full discount there. For Mrs [Allen] there seems to be genuine remorse, genuine acceptance of the extent of the potential of the wrongdoing. There is also the fact that both mother and daughter are first offenders and that Mrs [Allen] also has some medical issues.

[10] Mr Prentice and Ms Jones have spent time making submissions and distinguishing the cases provided by prosecution and I do acknowledge those distinctions to a point. Other cases considered include Jackson v Police1 and

Gunn v Police2, Stevens v Police3 where the starting point varies depending on the

circumstances before the Court. I have also looked at Skelton v R4 which carries the same maximum penalty albeit that it was a charge of perjury. The Court of Appeal

1 _{Jackson v Police [2014] NZHC 2187}

2 _{Gunn v Police [2014] NZHC 356}

3 _{Stevens v Police [2012] NZHC 1004}

4 Skelton v R [2011] NZCA 35

there looked at the potential consequences of the offending rather than the effect of the lies. The focus was on the purpose that had been set out to be achieved. In other words it should be the intention behind the attempt and its potential effect. The Court of Appeal referred to Miller v R5.

[11] When I look at the intention behind the attempt and its potential effect, as I tried to outline, the intention was to bring about an avoidance of prosecution and have the child returned to the same domestic arrangement in which the child sustained the injury in the first place. When I look at this, I do take a higher starting point than is sought by defence. I take a starting point of two and a half years.

[12] In relation to Mrs [Allen], she is a first offender and I reduce that starting point for that fact and also for the guilty plea and I also give her significant credit for her genuine remorse and acceptance of the level of the offending. I do acknowledge that she has medical issues and I do think that home detention is an acceptable outcome. At the end of the day home detention is the least restrictive outcome. I am afraid I cannot see that community detention is the least restrictive outcome but I would settle on five months’ home detention. I appreciate that she has medical issues but provision can be made for that. I have not got anything further to add in relation to Mrs [Allen] and she may stand down. Six months post-detention conditions are to apply.

[13] Ms [Williams] I take the same starting point. I also give you a discount for the fact that this is your first offence and a full discount for the guilty plea. You have expressed remorse but I do not accept that your level of remorse is as extensive, nor as genuine as your mother’s. There is a clear disconnect between providing information as to what happened and what actually did happen and that seems to be accepted. Even if not accepted by you, nevertheless it is a real factor.

[14] Taking into account those discounts, I am unable to come to any further leniency beyond a sentence of 16 months’ imprisonment. I am afraid I do not agree that home detention is the least restrictive outcome. The purpose of your actions

_{were quite clearly to avoid detection and to have the child returned to the domestic}

5 Miller v R [2014] NZCA 382

arrangement in which the child sustained injuries and I am afraid I am not able to agree that the least restrictive outcome is a term of home detention. Standard and special release conditions are to apply for a term of six months beyond sentence expiry date.

M L S F Burnett

District Court Judge