Williams v Department of Corrections [2012] NZHC 304 (28 February 2012)

Last Updated: 1 April 2012

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-463-000095 [2012] NZHC 304

CRAIG IAN WILLIAMS

Appellant

v

DEPARTMENT OF CORRECTIONS

Respondent

Hearing: 28 February 2012

Counsel: T V Barclay for the Appellant

S T Simmers for the Respondent

Judgment: 28 February 2012

_{(ORAL) JUDGMENT OF DUFFY J}

Counsel: T V Barclay P O Box 366 Rotorua 3040 for the Appellant

_{Solicitors: Gordon Pilditch P O Box 740 Rotorua 3040 for the Respondent}

WILLIAMS v DEPARTMENT OF CORRECTIONS HC ROT CRI-2011-463-000095 [28 February 2012]

[1] Craig Williams appeals against sentences he was given in the District Court, which come to a total of two years’ imprisonment. Following entry of guilty pleas, he was convicted of, and sentenced on the following offences, which occurred on 12 and 13 October 2011:

(i) Five counts of breach of extended supervision order, s 107T,

Parole Act 2002, maximum penalty two years’ imprisonment;

(ii) Two counts of unlawfully being in an enclosed, s 29(1)(b), Summary Offences Act 1981, maximum penalty three months’ imprisonment or $2,000 fine; and

(iii) One count of offensive behaviour, s 41(a), Summary Offences

Act 1981, maximum penalty $1,000 fine.

[2] Mr Williams appeals against the sentence on the grounds that the Judge erred in applying an uplift after the sentence end point and/or that the sentence was manifestly excessive.

Background

[3] On Wednesday, 12 October 2011 at 6.20 am, Mr Williams drove into the grounds of a polytechnic and parked at the boundary of the polytechnic in the Rotorua Thermal Holiday Park. He walked into the holiday park and entered a women’s shower block. He entered a cubicle next to where a female camper was showering and called out to her obscene comments that she would have found frightening. He remained in the cubicle for approximately five minutes making further obscene comments. The victim stayed there for about 10 minutes before dashing back to her unit.

[4] Mr Williams then left the shower block and approached another women’s shower block in another area of the camp ground. He opened an insecurely fastened window from the outside. A camper inside noticed, banged on the wall and told the defendant to go away. He did for a short time, but approached the window again.

The same camper gave Mr Williams another warning, at which he grinned and began to walk off. Two campers yelled at Mr Williams and he ran off down a main road, retreating to his truck.

[5] The next day, 13 October 2011, at about 6:15 am, Mr Williams returned again to the same holiday park, parked at the same spot and walked towards the toilets and showering facilities. A security guard confronted him and told him to stop. He turned and ran as the guard chased him. Mr Williams jumped a fence and left in his truck. He was stopped shortly by Police and identified as being the offender on

12 October 2011.

[6] Mr Williams initially denied both the offending and being on the thermal park grounds but subsequently pleaded guilty.

[7] Mr Williams had been on an extended supervision order because of his earlier sexual offending. The order ran from 21 January 2005 to 21 January 2015, and had the following terms:

(i) Not to enter any school or school ground without approval;

(ii) Not to enter or loiter near the perimeter of any camping ground or holiday park; and

(iii) Not to enter or loiter near the perimeter of any park/recreational centre or accommodation where there are shared toilets/shower facilities.

[8] Both the polytechnic and holiday park had shared toilets/shower facilities.

District Court decision

[9] On 8 December 2011, Judge Burnett at the District Court at Rotorua sentenced Mr Williams. The Judge noted the vast majority of Mr Williams’ offending was either violent or sexual offending and that he was assessed as being at a high risk of re-offending in the pre-sentence report.

[10] The Judge further observed that Mr Williams had 10 convictions for breach of an extended supervision order and 41 other convictions for sexual offending, violence, property, behavioural, dishonesty, and driving matters.

[11] The Judge took a starting point of 18 months’ imprisonment and gave a six month discount for the early guilty pleas. She then uplifted that by 12 months for the prior convictions and persistent offending. The result was an end sentence of two years’ imprisonment. The Judge then imposed concurrent sentences of two months each for the charges of unlawful presence in an enclosed area and convicted and discharged Mr Williams on the charge of offensive behaviour.

Analysis

Sentencing approach

[12] The approach to sentencing was set out in R v Taueki [2005] 3 NZLR 372 (CA), which broadly consists of adopting a starting point that takes into account the aggravating and mitigating features of the offending (at [8]), and then to adjust for aggravating and mitigating factors personal to the offender (at [44]).

[13] The Supreme Court in Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 held that the guilty plea discount should not exceed 25 per cent (at [75]). The Supreme Court observed that there were advantages to assessing the guilty plea discount once all other relevant matters have been evaluated and a provisional sentence reflecting them has been decided on (at [70]). The Supreme Court stressed that what was important was that the discount should be the result of an evaluation of all the circumstances in which the plea was entered.

[14] In R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23, the Court of Appeal reconciled Taueki and Hessell and held at [60]:

Adapting the guidance given in R v Taueki, in light of this Court’s judgment in Hessell (CA) and the correction of that judgment in the Supreme Court’s judgment in Hessell (SC), the appropriate staged approach to sentencing is:

(a) Step one: starting point involving the assessment of the gravity of the offending, including any mitigating or aggravating factors relating to the offence.

(b) Step two: making allowance for personal aggravating and mitigating factors, including what the Supreme Court called “extraordinary remorse”, that is remorse for which it is appropriate to give credit separately from any discount given for a guilty plea.

(c) Step three: a discount for a guilty plea if the offender has pleaded guilty. This should take into account the factors mentioned in the Supreme Court’s judgment in Hessell (SC) but should not exceed the maximum level of 25 per cent prescribed by the Supreme Court in that judgment.

[15] Here, the District Court Judge gave the guilty plea discount before imposing the uplift for Mr Williams’ prior convictions, which is not the correct order as set out in Clifford.

[16] One of Mr Williams’ grounds of appeal is that the sentence uplift was manifestly excessive. Another argument Mr Williams pursued on appeal was that the result of the 12 month uplift has brought the end point sentence to a sentence of two years, which is the maximum sentence available on the lead offence. That of course means that the end sentence can reflect no discount for a guilty plea, despite Mr Williams being entitled to this credit and despite the sentencing Judge’s reasoning including a credit for a guilty plea.

[17] Another argument that was pursued today was to say that it was not open to the sentencing Judge to work her way through a sentencing process where, as part of that process, she went above the maximum penalty the Parole Act imposes for the lead offence.

[18] The Crown has sought to counter that argument by reference to the cases of Akuhata v Police HC Rotorua CRI-2008-463-26, 24 April 2008 and Cameron v Police HC Wellington AP 17/03, 18 March 2003, where it was held that it is open to the Court to adopt a starting point above the maximum penalty, as long as the end sentence is not above the maximum limit.

[19] However, counsel for Mr Williams pointed out to me that the reasoning in those decisions relates to the jurisdictional limits imposed on a judge sentencing in

the District Court. The cases do not deal with the circumstance where a sentencing judge, as part of the sentencing process, moves beyond the maximum penalty permitted by statute.

[20] The respondent sought to persuade me that by analogy with Akuhata and with Cameron, I should find that it was permissible for the sentencing Judge to move beyond the maximum penalty, provided the end sentence was not above that maximum.

[21] In the end, I consider that I do not have to resolve this legal issue. Here, Mr Williams does contest the choice of a starting point. I consider that was a sensible approach to take. Here, there were technically five distinct breaches of the supervision order. There is also the presence of offensive behaviour towards female victims. I consider, therefore, that the Judge struck the appropriate balance when she adopted a starting point of 18 months’ imprisonment.

[22] Where, however, I consider that the Judge went wrong was in the 12 month uplift for prior convictions and breaches of extended supervision orders. This, in my opinion, is manifestly excessive. Taken in relation to the starting point, the uplift was two-thirds of that starting point.

[23] Whilst prior convictions can be taken into account in sentencing, the current offending remains the primary consideration. A delicate balance between the need to protect the public and the principle that offenders should not be punished further for past offending has to be preserved to avoid the appearance of additional punishment for past offences. This is achieved by maintaining a reasonable correlation between the sentence imposed and the penalty justified by the nature and gravity of the current offending: see Adams on Criminal Law (online ed) at SA9.15.

[24] In Hansen v Department of Corrections HC Dunedin CRI-2011-412-34,

12 October 2011, Mr Hansen was sentenced to six months’ imprisonment in relation to one count of breach of an extended supervision order. The offending giving rise to the order was indecent touching of two young girls in a swimming pool. The order commenced in 2006, was breached first in 2008, and was varied in 2009. The

condition added in 2009 was that Mr Hansen was not to go to places where children under 16 are likely to congregate unless supervised. He breached that condition in

2010 by stopping near a children’s play area. The breach for which he was then sentenced occurred in 2011 when Mr Hansen went to a Toyworld. The Judge took a starting point of six months’ imprisonment and uplifted this by two months for the prior breaches, and gave a discount of two months for the guilty plea. The appeal was on the question of home detention, which was allowed. A sentence of three months’ home detention was substituted.

[25] Whilst the prior convictions/breaches are more numerous here than in Hansen, I consider a six month uplift, compared to the two months in Hansen, is adequate to reflect the greater seriousness displayed here. Anything more than that risks additional punishment for past offences. Further, I note that in Hansen, the uplift was one-third of the starting point and that here, six months constitutes one- third of the 18 month starting point.

Conclusion

[26] I consider that the District Court’s approach in imposing an uplift for prior convictions after indicating the guilty plea discount was not in accordance with the guidance in Clifford. Thus, although the starting point adopted properly reflected the seriousness of Mr Williams’ current offending but, when taken in combination with the 12 month uplift, it has resulted in a sentence that is manifestly excessive. In addition, it has resulted in a sentence that gives no credit for the early guilty plea of Mr Williams. I consider the more appropriate approach would have been to adopt a starting point of 18 months’ imprisonment with an uplift of six months to reflect Mr Williams’ criminal history.

[27] There is then the matter of the discount for a guilty plea. I understand that Mr Williams pleaded guilty at the second appearance. This could be expected to give rise to a discount of between 20 to 25 per cent, which would bring the sentence down to one of 18 to 19 months’ imprisonment. Given that I should impose the least restrictive outcome, and given that there has been no contest today regarding the

discount for the guilty plea, I consider that Mr Williams is entitled to a 25 per cent discount. That would bring the end sentence down to 18 months’ imprisonment.

[28] Accordingly, the sentence of two years’ imprisonment is quashed. In its place, Mr Williams is sentenced to 18 months’ imprisonment on each of the five charges of breaches of extended supervision order; the sentences are to be served concurrently. I leave in place the sentence of two months’ imprisonment on the two charges of unlawfully being in an enclosed area, which are also to be served concurrently with the sentences for breach of the extended supervision order. I leave in place the conviction and discharge on the charge of offensive behaviour.

Duffy J