R v Gwilliam [2018] NZDC 20623 (28 September 2018)

Last Updated: 13 September 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT INVERCARGILL I TE KŌTI-Ā-ROHE KI WAIHŌPAI

CRI-2018-059-000128

[2018] NZDC 20623

THE QUEEN

v

KIM PAUL GWILLIAM

Hearing:	28 September 2018
Appearances:	M A Mika for the Crown W N Dawkins for the Defendant
Judgment:	28 September 2018

NOTES OF JUDGE B A FARNAN ON SENTENCING

Charge

[1] Kim Paul Gwilliam, you are for sentence today in respect of a charge of injuring with intent to cause grievous bodily harm, which means, in plain English, that you caused really serious harm.

Previous sentence indication

[2] I gave you a sentence indication on 1 June 2018 and that indication was confirmed by me on 12 July 2018 when you changed counsel. You are now represented by Mr Dawkins.

R v GWILLIAM [2018] NZDC 20623 [28 September 2018]

[3] I have re-read my sentence indication notes from 1 June and they are to form the basis of my sentencing of you today. These notes are to be attached to my sentencing notes.

[4] My sentence indication to you was that I would not sentence you to more than three years and four months’ imprisonment, and you have heard Mr Mika speak to me about that today. I also noted there would be further discounts available to you for personal factors - for example, if you made a significant emotional harm payment and if restorative justice took place. I have referred to discounts of up to 10 percent, with a global discount of 35 percent. I said I would get down to just under three years, which would mean there would be no conversion to home detention.

Facts

[5] This offending occurred [early] 2018. The offending appears to have occurred as a result of a longstanding and ongoing dispute between you and family members over estate money and property. The sad reality, Mr Gwilliam, is that you and [the victim] have had for some time, and continue to have, an extremely dysfunctional relationship.

[6] However, that being said, you have also managed to maintain appropriate and loving relationships with other family members. Your daughter is present at Court today and she has written a letter to the Court which I have considered. Likewise, you have been very supportive of your elderly mother and one of the reasons I granted you bail leading up to this sentencing today was to enable you to support her in transitioning from living in Alexandra to here in Invercargill.

[7] Mr Dawkins tells me that one of the reasons you have no emotional harm payment available to contribute today is because you have been assisting your mother financially in terms of that move. You have also had other matters to attend to. Mr Dawkins urges me to give you some further discount, but acknowledges that that will not be the full amount that I had indicated might be available to you, for a significant emotional harm payment.

[8] You have been on strict bail conditions and there has been no suggestion of any further offending. You have also accepted that you cannot, and should not, use alcohol and there appears to have been some abstinence by you which, again, is supported by your daughter in her letter to me. You have sought some independent help for some of those issues.

[9] This incident [in early 2018], however, involved you going to [the victim]’s property armed with a sledgehammer. You then broke into his property. He was at home with his wife and there may have been other people present. You raised the sledgehammer above your head and swung it at [the victim]’s head. He managed to block the blow with his forearm and managed to grab your shirt and pull it over your head, causing you to drop the sledgehammer. There was further wrestling for a short period of time before you ran off.

Victim impact

[10] As a result of your offending, [the victim] received relatively significant injuries, including a bruised shoulder and a swollen wrist from the sledgehammer. There was some issue as to whether or not the wrist may have been fractured, but subsequently, some time later, it appeared that [the victim] was suffering a brain bleed which was entirely attributable to your actions.

[11] I have, before coming to Court today, read the updated victim impact statements prepared by [the victim and his wife]. It is clear that this action by you, or the events that unfolded [early 2018], have had a dire effect on both [the victim] and his wife. They describe the outcome for them as being life changing; their quality of life has been hugely affected; and they have also referred to an amount of shame.

[12] [The victim] describes, at the age of [over 65] next year, facing a future of health problems since your attack, when previously he had not had such health problems and in fact had been described by the medical authorities as being ‘a young 60-something’. He said he has never in his life experienced any physical health problems and has always been hale and hearty, but that has now changed dramatically. He has been able to return to work but on lighter duties.

[13] [The victim’s wife] remains vigilant and concerned for the possibility that this action by you may be repeated.

Defence submissions

[14] Your counsel, Mr Dawkins, has filed submissions for sentencing today. He has confirmed that you have, since this incident, taken steps regarding your alcohol use, including counselling which I have already mentioned. You have seen Dr Shardley at the Southland Mental Health Unit on four occasions. Mr Shardley says you do not have a mental health illness at this time, but you have been put on medication which would appear to be for mood stabilisation.

[15] You made a self-referral to Nga Kete, but that only involved one session, I understand, although you have a further scheduled which is now not likely to be able to take place unless that is within the prison setting.

[16] You were willing to attend restorative justice, but [the victim] and his wife, perhaps understandably, declined.

[17] During your time on bail I have mentioned your assistance to your mother.

[18] I have also mentioned you being on restricted bail, without breaches. In particular, Mr Dawkins has today highlighted that that has caused some challenges for you because you have not been able to return to the home that you occupied with your mother for some period in Wanaka.

[19] I have also read a reference from your former employer who says you are a good worker and he would not hesitate re-employing you in the future if the opportunity arose.

Pre-sentence report

[20] I have also had the benefit of a pre-sentence report which confirms that prison is the only option today.

[21] You told Probation this offending was a “moment of madness” and I think that is a good description of what occurred. You acknowledged also that this should not have happened, that there was a mental lapse, with your alcohol exacerbating the situation. You acknowledged candidly the reaction to the ongoing dispute with [the victim] was completely stupid. You told Probation you were sorry. You were assessed by Probation as being at medium risk of harm and risk of re-offending to others.

[22] A non-association order with the victims is promoted as part of the sentencing. Probation referred to your offending as being impulsive.

Purposes and principles of sentencing

[23] I need to consider the purposes and principles of sentencing, of deterrence and denunciation, as well as protection of the public and community in general, but in particular your victims. I must also impose the least restrictive outcome.

[24] My sentence indication was for an end sentence of about three years with some global discounts. Personal matters I can consider today are remorse, willingness to attend restorative justice, periods on restrictive bail, and some steps taken.

[25] Your discounts, however, cannot be as high as I indicated they could be, because you have not been able to provide an emotional harm payment.

[26] I indicated to you there would be an end sentence of no more than three years and four months.

[27] What I am prepared to do, Mr Gwilliam, is to give you a three month discount on a global basis, and reduce the end sentence that I indicated to you to one of three years and one month.

[28] Your release from prison will be a matter for the Parole Board.

Sentence

[29] Therefore, Mr Gwilliam, the outcome for you today is an end sentence of three years and one month imprisonment.

B A Farnan

District Court Judge