Williams v Police [2014] NZHC 3255 (16 December 2014)

Last Updated: 18 December 2014

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2014-425-39 [2014] NZHC 3255

BETWEEN	EDDIE MALCOLM WILLIAMS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	16 December 2014 via AVL
Appearances:	H Cuthill for the Appellant E Higbee for the Respondent
Judgment:	16 December 2014

_{ORAL JUDGMENT OF MALLON J}

Introduction

[1] Mr Williams pleaded guilty to and was convicted on one charge of breaching a protection order¹ and one charge of male assaults female.² He was sentenced in the District Court at Invercargill to 12 months imprisonment.³ He appeals against his sentence on the ground that it is manifestly excessive.

The offending

[2] On 31 January 2012 a protection order was issued against Mr Williams in respect of the victim.

[3] On 16 July 2014 Mr Williams was drinking at an associate’s address. The victim arrived and was also intoxicated. An argument developed between them and

_{Mr Williams punched the victim in the mouth. This caused a cut to her lower lip and}

1. Domestic Violence Act 1995, ss 19 and 49(1)(a) and (3) (maximum penalty of three years imprisonment).

² _{Crimes Act 1961, s 194(b) (maximum penalty of two years imprisonment).}

³ _{Police v Williams DC Invercargill CRI-2014-025-1610, 23 October 2014.}

WILLIAMS v NEW ZEALAND POLICE [2014] NZHC 3255 [16 December 2014]

bruising on her jaw. She subsequently left the address and was taken to hospital. She received six stitches to her lip.

[4] Mr Williams was later located at the victim’s address. He denied assaulting her and said he suspected that she had fallen off her bike.

Personal circumstances

[5] Mr Williams was 36 years old at the time of the offending. He has an extensive criminal history with over 90 convictions, including Youth Court matters, for a range of offending committed between 1993 and 2014. For present purposes the most relevant offending is:

(a) Four breaches of a protection order (three breaches in respect of this same victim between 2013 and 2014, and one in respect of a different victim in 2013). He was sentenced to terms of imprisonment of between one month and two months and one week for these breaches.

(b) Three convictions for violence committed in 2009, 2010, and 2011 in respect of the same victim (being a threat to kill, male assaults female and assault with intent to injure). The most serious of these was the assault with intent to injure, committed in 2009, for which he was sentenced to a term of imprisonment of nine months, with shorter terms of imprisonment for the other offences.

(c) One conviction for male assaults female committed in 2011 against a different victim for which he was sentenced to four months imprisonment.

[6] The pre-sentence report was not a positive one. Mr Williams told the report- writer that he was not a violent person and that, in the right circumstances, breaking someone’s jaw would not be a big deal. He denied causing the injuries to the victim and said that he had pleaded guilty because he did not feel anyone would believe him. The report-writer noted that Mr Williams’ violent tendencies are exacerbated by his alcohol use, which had been a theme of his offending over many years.

Previous custodial sentences had failed to motivate him to change. Although Mr Williams was complying with release conditions to attend counselling at the time of the present offending, the report-writer considered that Mr Williams did not compute the purpose behind them.

District Court judgment

[7] The Judge took the breach of the protection order as the lead offence and noted the violence and the extent of injury involved. A starting point of 12 months imprisonment was adopted in respect of that offending. This was uplifted by two months for Mr Williams’ relevant prior convictions for breach of a protection order, and by a further one month because he was on release conditions following his release from prison. The Judge applied a discount of 20 per cent for the guilty pleas which had not been entered at the first opportunity. That discount reduced the sentence to one of 12 months imprisonment. The Judge imposed standard and special release conditions. A concurrent term of six months imprisonment for the male assaults female charge was also imposed.

Victim impact statement

[8] The victim said that she and Mr Williams had been in a relationship for a few years that had been “off and on violent” at times. She said she was trying to deal with her drinking and sort her life out, but that things take a turn for the worse when she and Mr Williams drink together. She said that her lip still “isn’t right” and that she had to be careful when she ate. She no longer wanted anything to do with Mr Williams and said that if he goes to prison, it might help her stay on track and keep away from alcohol.

Analysis

[9] It is contended for Mr Williams that the starting point was too high given that it was four times higher than his most recent sentence of two months and seven days. The uplift for previous convictions is said to be too high given that it was almost as high as the end sentence for his most recent conviction for a breach of a protection order. Overall it is said that the sentence was excessive because of the combination of a high starting point and high uplifts.

[10] The respondent submits that the sentence was not manifestly excessive. In support of that submission a number of cases are referred to.⁴ I have considered those cases and a number of others.⁵ In my view they show that a sentence of 15 months imprisonment, prior to discount for mitigating factors, was excessive in this case. The respondent emphasises that a legislative change in 2013 increased the penalty from two years to three years imprisonment reflecting Parliament’s view as

to the seriousness of offending of this kind. The respondent also refers to Mr Williams’ history as showing a continuing disregard for court imposed protection orders.

[11] However the situation in which this incident arose must be considered. It was a single incident, precipitated when the victim went to the address where Mr Williams was drinking, and a single punch was inflicted. The principal aggravating feature of the incident is that it involved actual violence, albeit relatively limited. The incident arose in quite a different context from the cases where the defendant makes continual contact with the victim despite the victim’s clear desire that contact

cease.⁶ It does not have the overlay of intimidation about it which characterises

_{many of these cases and where a particularly stern response is needed.}⁷

⁴ Mataiti v Police [2014] NZHC 1675; Tutbury v Police [2013] NZHC 2960; Hamilton v Police

[2014] NZHC 2698; Te Tau v Police [2012] NZHC 1068; and Martin v Police HC Rotorua CRI-

_{2007-470-24, 11 July 2007.}

⁵ Marks v Police HC Rotorua CRI-2005-463-19, 23 March 2005; Wilson v Police HC Nelson

[2013] NZHC 2503; Narayan v Police [2014] NZHC 1241; Pukepuke v Police [2014] NZHC

1194; Love v Police [2014] NZHC 2643; Keenan v Police HC Palmerston North CRI-2005-459-

59, 13 December 2005; and Wereta v Police HC Palmerston North CRI-2008-454-61, 1 April

₂₀₀₉

6. See for example Mataiti v Police, above n 4 (starting point of 16 months imprisonment upheld on appeal for two breaches of a protection order where Mr Mataiti yelled at the victim, pushed

her, and would not leave when asked); Tutbury v Police, above n 4 (starting point of nine months not disturbed on appeal for male assaults female, contravening a protection order, and doing a threatening act; Mr Tutbury accosted the victim while she was walking down the street, then waited for her at home and slapped her face causing injury); Narayan v Police, above n 5 (starting point of 15 months upheld on appeal for two breaches of a protection order where Mr

Narayan went to the victim’s house and would not leave when asked; he later attempted to

contact her from prison); Love v Police, above n 5 (combined starting point of 12 months imprisonment for male assaults female and two breaches of a protection order where Mr Love turned up at the victim’s home uninvited and persistently contacted her cell phone); Keenan v Police, above n 5 (end sentence of 12 months imprisonment not disturbed on appeal on seven charges of breaching a protection order where Mr Keenan persistently contacted the victim by telephone and approached her while she was at a service station); Wereta v Police, above n 5 (end sentence of 12 months imprisonment upheld on appeal for three breaches of a protection order where Mr Wereta went to the victim’s house multiple times, asked to be let in, and threatened to harm himself).

⁷ Mataiti v Police, above n 4, at [16] citing Tutbury v Police, above n 4, at [13].

[12] For the incident itself, without regard to Mr Williams’ history, I consider that no more than seven months imprisonment was warranted. Mr Williams’ history, including that he was still subject to release conditions, warranted a stern response. The Judge’s uplift of three months was too great on top of the 12 month starting point he had adopted. However, when applied to a starting point of seven months, it is not excessive. I acknowledge that three months is stern when compared with Mr Williams’ previous sentences for breaches of protection orders. However this incident involved actual violence and at a time when he was subject to release conditions. He had not responded to his previous sentences. A stern response was appropriate.

[13] From a starting point of ten months I apply the 20 percent discount for the guilty plea which the Judge allowed. That results in an end sentence of eight months imprisonment.

Result

[14] The appeal is allowed. The sentence on the breach of the protection order is quashed. A sentence of eight months is imposed in its place. The special and standard conditions remain. The concurrent sentence of six months on the assault also remains in place.

Mallon J