Williamson v Department of Corrections [2014] NZHC 98 (10 February 2014)

Last Updated: 17 March 2014

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2013-488-000053 [2014] NZHC 98

BETWEEN STUART HUGH WILLIAMSON Appellant

AND DEPARTMENT OF CORRECTIONS Respondent

Hearing: 10 February 2014

Appearances: L G Penney for Appellant

M Jarman-Taylor for Respondent

Judgment: 10 February 2014

_{(ORAL) JUDGMENT OF ANDREWS J}

Counsel/Solicitor:

L G Penney, Barrister, Kerikeri

Crown Solicitor, Whangarei

WILLIAMSON v DEPT OF CORRECTIONS [2014] NZHC 98 [10 February 2014]

Introduction

[1] The appellant, Mr Williamson, has appealed against the sentence of 21 months imprisonment on three charges of breaching an extended supervision order, imposed by Judge de Ridder in the Whangarei District Court on 25 October 2013 (“the sentencing decision”).¹ The appeal is on the grounds that the sentence is manifestly excessive. I am advised that Mr Williamson has now completed the sentence. Accordingly, except as a matter of record, the appeal is an academic

exercise, although Mr Penney, counsel for Mr Williamson, has advised that he has confirmed instructions to pursue the appeal.

Background

[2] On 14 August 2009, Mr Williamson was sentenced to imprisonment for 13 months, with special release conditions, on ten charges of possessing objectionable publications, showing young girls naked or being sexually abused by men. These were representative charges relating to approximately 100,000 images of young children. He had previously been sentenced to periodic detention and a term of imprisonment on charges of sexual offending against young girls, and to a term of imprisonment on charges laid under the Films, Videos and Publications Act 1993.

[3] Before the end of the release conditions following the sentence imposed on

14 August 2009, the Department of Corrections applied for an extended supervision order. On 28 September 2012, following a defended hearing, Judge McDonald made an extended supervision order, to be effective for seven years from that date.² On

19 December 2012 the Parole Board granted an application to vary the conditions of the order, by imposing eight special conditions, including that Mr Williamson only engage in paid or unpaid training or employment with the prior written approval of his Probation Officer, that he not possess any device capable of accessing the internet and/or capturing, storing, accessing or distributing images without the prior written approval of the Probation Officer, and that he not approach, enter or remain at any area where children were likely to congregate.

[4] Mr Williamson breached his extended supervision order three times. On

31 December 2012, he failed to comply with the condition of gaining prior written approval before engaging in employment. He pleaded guilty to this breach. On

19 January 2013, he approached and entered a recreational area where children were likely to congregate without reasonable excuse. Mr Williamson denied this offending. Following a defended hearing in September 2013, the charge was found proved.³ On 31 January 2013, he was in possession of devices capable of accessing the internet and/or capturing, storing, accessing or distributing images without approval. He pleaded guilty to this offending.

District Court Decision

[5] Judge de Ridder considered that the only response to Mr Williamson’s offending could be a sentence of imprisonment, “given the nature of the breaches and given the very short timeframe within which you offended after the order was imposed and after the special condition was imposed.”⁴ On the charge of failing to gain prior approval for being employed, Judge de Ridder took a starting point of eight months imprisonment, reduced to six months imprisonment by a guilty plea discount. The same starting point and reduction was applied on the charge of possession of a device capable of accessing the internet. This second sentence was

imposed cumulatively upon the first and was accompanied by an order for destruction of the seized items. Judge de Ridder considered the charge of entering a recreational area to be the most serious. He imposed a sentence of nine months imprisonment cumulative on the other two sentences. The total period of imprisonment was therefore one year and nine months.

Approach to appeal

[6] Section 250 of the Criminal Procedure Act 2011, provides that the Court must allow an appeal against sentence if satisfied that:

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

In any other case, the Court must dismiss the appeal.⁵

[7] Section 250 confirms the approach taken by the courts under the former Summary Proceedings Act 1957. This approach is set out in Yorston v Police where the Court said that: ⁶

(a) There must be an error vitiating the lower Court’s original sentencing discretion.

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court; and

(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[8] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

Appellant’s submissions

[9] Mr Penney acknowledged that cumulative sentences were open to the Judge as the three offences were three individual offences which were distinct and serious in their own right. However, he submitted that the Judge did not consider the totality of the sentence and that an appropriate total sentence would have been six to nine months imprisonment.

[10] Mr Penney referred me to a number of sentencing decisions involving breaches of extended supervision orders. They included decisions referred to also by Ms Jarman-Taylor for the respondent but the decision that appears to be of most relevance to the present case is that of Williams v Department of Corrections where on appeal the appellant’s sentence was reduced to an overall sentence of 18 months

where there were five breaches of the conditions of an extended supervision order.⁷

Mr Penney submitted that the offending in Williams was far more serious than that in the present case and that the end sentence of 18 months imprisonment in that case demonstrated the error in the sentencing of the appellant.

Respondent’s submissions

[11] Ms Jarman-Taylor referred me to the judgments in Otene v Department of Corrections,⁸ and McGreevy v Department of Corrections.⁹ Both of those cases involved a single breach of an extended supervision order and in both cases a sentence of six months imprisonment was imposed (after a reduction for guilty pleas).

[12] Ms Jarman-Taylor acknowledged that Mr Williamson’s sentence of 21 months imprisonment was stern, but she submitted that a stern sentence was justified. She submitted that the Judge was correct to characterise the charge of approaching and entering a recreational area as the most serious charge. This occurred exactly one month of the imposition of the condition and involved Mr Williamson deliberately going to an area where a lot of children would have been present. She submitted that nine months imprisonment was appropriate in the circumstances.

[13] Ms Jarman-Taylor also submitted that the number of breaches over a short timeframe in Mr Williamson’s case increased the seriousness of the offending and demonstrated an attitude of non-compliance. She further submitted that an aggravating feature was that the condition that Mr Williamson obtain prior approval before engaging in employment was also a condition of his bail, which was breached.

[14] Concerning the judgment in Williams, Ms Jarman-Taylor submitted that not too much weight could be put on that sentence. She referred to the particular

_{circumstances of that case, which involved five breaches over a period of two days,}

⁷ _{Williams v Department of Corrections [2012] NZHC 304.}

⁸ _{Otene v Department of Corrections [2013] NZHC 766.}

⁹ McGreevy v Department of Corrections HC Christchurch CRI-2009-409-207, 17 December

2009.

all of which were similar. They involved Mr Williams entering a female toilet area. Here, she submitted, we have breaches of three very distinct and different conditions of the extended supervision order, and over a longer period of time.

Relevant statutory provisions

[15] As I noted earlier, it is accepted in this appeal that it was open to the Judge to impose cumulative sentences. I do not have to consider, therefore, whether concurrent sentences should have been imposed rather than cumulative. However, it is necessary to consider s 85 of the Sentencing Act relating to the totality principle:

85 Court to consider totality of offending

(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences

must reflect the seriousness of each offence.

(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must

not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

Discussion

[16] It was open to the Judge, and not contested on appeal, to impose cumulative sentences. Whilst all three offences were for breaches of an extended supervision order, and similar in kind to that extent, they were not a series of connected offences for the purposes of s 84(3) of the Sentencing Act. The decisions in Otene and McGreevy show that a sentence of six months imprisonment for a single breach of an extended supervision order, as adopted by the Judge in this case for two of the three charges, is within range.

[17] I am satisfied that the Judge appropriately gave the maximum guilty plea discount of 25 per cent on the two charges to which Mr Williamson pleaded guilty, and arrived at appropriate end sentences for those charges. I am not satisfied that a sentence of nine months imprisonment, for the charge of entering a recreational area, can be said to be manifestly excessive. On that charge, to which Mr Williamson did not plead guilty, a guilty plea discount was, of course, not available. Further, the breach itself must be regarded as reasonably serious. It goes to the heart of what the special conditions were designed to prevent.

[18] As Ms Jarman-Taylor acknowledged, the Judge made no explicit reference to the totality principle. Indeed, the Judge does not appear to have considered the totality principle when sentencing Mr Williamson. Because he did not do so it is appropriate that I consider totality in order to determine whether the end point of Mr Williamson’s sentence was within the available range. Whilst each sentence can be said to be within range for the particular offence, and whilst cumulative sentences were appropriate, it is necessary to consider whether the end sentence of 21 months imprisonment is wholly out of proportion to the gravity of the overall offending.

[19] I accept that each of the three breaches of the extended supervision orders was distinct in time and circumstance relating to three very different conditions of the extended supervision order. I also accept that each of the three breaches was sufficiently serious to warrant a stern response.

[20] However, I have also concluded that an overall sentence of 21 months imprisonment does not reflect the totality of Mr Williamson’s offending. Some adjustment was required to reflect the totality principle. I have concluded that a reduction of three months should have been made, to ensure that the total sentence was not wholly out of proportion to the totality of Mr Williamson’s offending. I am not satisfied that any greater reduction is required. In this case, Mr Williamson’s offending involved three very distinct breaches of the extended supervision order. I am satisfied that three months represents a significant (and appropriate) reduction from the sentence of 21 months imprisonment.

[21] Accordingly, the appeal against sentence is allowed and the sentence of 21 months imprisonment is quashed, and a sentence of 18 months imprisonment is imposed in its place.

[22] As noted earlier, however, as Mr Williamson has completed his sentence the appeal is a matter of record only.

Andrews J