Williams v R [2016] NZHC 2760 (18 November 2016)

Last Updated: 6 December 2016

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-412-24 [2016] NZHC 2760

BETWEEN	REWITI TAMAHAU WILLIAMS (AKA) DAVID WILLIAMS Appellant
AND	THE QUEEN Respondent

Hearing:	16 November 2016
Appearances:	S Saunderson-Warner for Appellant R Smith for Respondent
Judgment:	18 November 2016

_{JUDGMENT OF MANDER J}

Introduction

[1] The appellant, Rewiti Williams, pleaded guilty to two charges of obtaining by deception and one charge of driving while disqualified in the aggravated form. On

21 June 2016, following a sentence indication, he was sentenced by Judge Crosbie to two years’ imprisonment with six months special conditions.¹ He was also disqualified from driving for a period of 18 months from the date of sentence. Mr Williams appeals this sentence.

[2] Although the notice of appeal was filed out of time, the Crown accepts that it is not prejudiced and leave is granted.

¹ _{R v Williams [2016] NZDC 12816.}

WILLIAMS v R [2016] NZHC 2760 [18 November 2016]

The offending

[3] Mr Williams is the son-in-law of the victim, Ms McCrae. Between 1 August and 14 August 2015, Mr Williams was at the house of the victim. While there he located her credit card in her wallet and obtained the card’s details. On 18 August he phoned Harvey Norman in Dunedin and told the salesman that he wanted to purchase some new items for his son, Colin Jnr, who had just moved to Dunedin. He requested a 65 inch Panasonic television and a Panasonic home theatre system, together valued at $4,156. Mr Williams read the salesman the credit card details and the transaction was processed and approved. During the conversation Mr Williams also requested a Samsung Note 4 and a PlayStation 4 bundle valued at $1,768.

[4] Mr Williams’ co-offender, Mr Taimalie, went to the store posing as Colin Jnr to collect the goods. While in store he paid for the PlayStation and Samsung Note 4 by reading the victim’s card details to the salesman. The transaction was processed and approved. He took all the goods and signed for them as C McCrae.

[5] On the same day, Mr Williams phoned Smith City and stated to the salesman that his name was Calvin McCrae. He provided the same story, that he needed to purchase some goods for his son who had just moved to Dunedin. He requested a PlayStation 4, an extra controller, a Samsung Galaxy S6, a screen protector, a Samsung Galaxy S5, an LG 40 inch television, a Samsung Galaxy tablet 9.7 inch and a Targus 10 inch tablet, collectively valued at $4,319.92. Mr Williams again read the credit card details to the salesman and the transaction was processed and approved. That same day Mr Taimalie, posing as Colin Jnr, went to Smith City and signed his name as C McCrae and left the store with the items.

[6] In respect of the driving matter, on 16 October 2016 at about 3.50 pm Mr Williams was driving his partner’s car in Mosgiel. He was stopped for a vehicle and licence check. Enquiries revealed that he was a disqualified driver.

[7] On 27 May 2016 Judge Crosbie indicated that the sentence would not be more than two years’ imprisonment. On the basis of that indication, Mr Williams pleaded guilty.

[8] At sentencing, Judge Crosbie noted the fraud offending was premeditated and the two offences were committed within a very short period of time. The offending involved a breach of trust, and high-value items had been obtained which had not been recovered.

[9] Judge Crosbie took a 22 month starting point. He uplifted this by six months for Mr Williams’ extensive list of previous convictions. Judge Crosbie indicated that a moderate uplift would be required for the driving while disqualified offending but, that with only limited credit available for the late guilty pleas, this would result in a sentence slightly over two years. The Judge determined, however, that he would sentence in accordance with his indication and a two year sentence of imprisonment was imposed.

[10] Although a sentence of home detention was recommended in the pre- sentence report, Judge Crosbie considered that because of Mr Williams’ history, the circumstances of the offending, including the large sums involved and the breach of trust, the principles of deterrence and denunciation would not be met by a sentence less than imprisonment. There was no tangible expression of remorse and the pre- sentence report indicated minimal prospects of rehabilitation.

The appellant’s case

[11] Mr Williams puts forward two grounds of appeal:

(a) disparity with the starting point adopted for Mr Williams’ co-offender, Mr Taimalie; and

(b) the uplift of six months for previous conviction was not proportionate to the starting point.

[12] Mr Williams submitted that despite relatively similar levels of culpability the starting point for Mr Taimalie’s sentence was only 12 months imprisonment compared to the 22 month starting point adopted by Judge Crosbie. He submitted the only distinction that could be drawn between them was that his offending involved a breach of trust. If a distinction were to be drawn between the two offenders it was submitted it should not have resulted in a 45 per cent difference between the respective starting points.

[13] Mr Williams argued that an independent observer would consider something had gone awry with the administration of justice when two Judges on two different occasions had adopted different starting points in respect of the same offending. It was submitted Mr Williams’ starting point should be reduced to one of 12 months.

[14] On the second ground of appeal, Mr Williams submitted the six month uplift for previous convictions was too great. He noted this amounted to a 27 per cent increase. Although Mr Williams’ has some 90 previous convictions for dishonesty offending, he submitted there was a decade gap in his dishonesty offending between

2005 and 2015. It was submitted a one to two month uplift was justified, depending on the starting point taken.

[15] No issue is taken with the decision not to commute the sentence to home detention.

Disparity in sentences between co-offenders

Relevant principles

[16] A principle of sentencing is that the court:²

[M]ust take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances.

² Sentencing Act 2002, s 8(e).

[17] The Court of Appeal in R v Lawson noted that the integrity of the criminal justice system is put in issue if the public perceives a lack of consistency in the way the Court sentences offenders:³

[A] marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. The Courts must bear in mind that public confidence in the administration of justice is best preserved if justice appears to be administered evenhandedly.

[18] However, it has also been recognised by the Court of Appeal that sentencing is not an exact science and there will often be legitimate reasons for disparate sentences between co-offenders:⁴

Whilst it is vital for a sentencing Court to strive for parity in sentencing co- offenders (whether sentenced separately or together), parity will not be achieved by a simple measurement against a co-offender’s culpability. Parity means treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.

[19] In R v Rameka the Court of Appeal was cognisant of an increased willingness to allow disparity of sentence as a ground of appeal but cautioned that simply because one co-offender has received too short a sentence is not grounds for necessarily interfering with a longer sentence imposed on another.⁵ In each case the court must consider all of the surrounding and infinitely variable circumstances.⁶

[20] Where the sentence the subject of appeal is appropriate for the offending, then the disparity must be unjustified or gross. This is an objective test not based upon what the appellant thinks, but whether “a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would

_{think that something had gone wrong with the administration of justice”.}⁷

³ _{R v Lawson [1982] NZCA 67; [1982] 2 NZLR 219 (CA) at 223.}

⁴ _{R v K (2003) 20 CRNZ 62 (CA) at [20].}

⁵ _{R v Rameka [1973] 2 NZLR 592 (CA) at 593.}

⁶ _{At 593.}

⁷ R v Lawson, above n 3, at 223.

Discussion

[21] Earlier in the year, in April, Mr William’s co-offender, Mr Taimalie, was sentenced by Judge Turner on the same two charges of obtaining by deception.⁸ The Judge adopted a starting point of 12 months’ imprisonment before commuting a 10 month term of imprisonment to one of five months home detention.

[22] Mr Williams does not take issue with the starting point adopted in his case of

22 months, accepting that it is supported by authority.⁹ Rather, he submitted an injustice arose from his sentence being set without regard to the 12 month starting point adopted in respect of his co-offender. It appears the approach taken to Mr Taimalie’s sentencing had not been disclosed to Judge Crosbie, and Mr Williams submitted this had resulted in an unjustified disparate sentence of two years being imposed for the same offending.

[23] To determine whether the disparity between the starting points is unjustified or gross, it is necessary to examine the respective roles of Messrs Williams and Taimalie in the offending. Mr Williams obtained the credit card details from the victim, his mother-in-law. Mr Williams then rang the respective stores, placed the orders, provided the card details and arranged for the transactions to be processed. Mr Taimalie’s role, on the other hand, was one of driving to the stores to pick up the goods. He also processed a payment at one of the stores with the card details, although those goods had already been ordered by Mr Williams.

[24] Mr Williams submitted that apart perhaps from the degree of the breach of trust, his culpability was the same as his co-offender. In my view, however, while I accept the role played by each cannot of itself account for the size of the variation in the respective starting points, it is a point of some difference between them.

[25] Mr Williams played a more significant and central role. His offending involved a direct breach of trust in stealing from a family member. This is an

_{aggravating factor under the Sentence Act.}¹⁰ _{Having regard to the circumstances of}

⁸ _{Police v Taimalie [2016] NZDC 5947.}

⁹ _{Tiopira v Police [2012] NZHC 1720.}

¹⁰ Sentencing Act 2002, s 9(1)(f).

the offending, their respective actions, and Mr Williams’ substantial history of dishonesty offending, the inference is legitimately available that he was the leader and the instrumental player in the offending. On that basis, I am satisfied his culpability was greater than that of Mr Taimalie. It follows that the difference in the starting points does to a certain extent reflect the co-offenders respective roles and their varying levels of culpability.

[26] The Crown placed emphasis on the Court of Appeal’s approach to the issue of disparity in Mau’u v R, where a co-offender had received an unduly lenient sentence.¹¹ The Court acknowledged that when the co-offender’s sentence was compared with the appellant’s sentence a right-thinking member of the public would consider something to have gone awry in the sentencing process. However, the Court declined to adjust the sentence. The Court considered the co-offender’s sentence was far too lenient. It held that the same member of the public would not have his or her confidence in the system restored by seeing the appellant’s sentence

reduced when it was otherwise entirely appropriate. A sentence ought not be reduced to take into account an aberrant one imposed on an equally culpable offender.

[27] The Crown submitted that Judge Turner when sentencing Mr Taimalie had specifically recognised that a starting point of as much as 18 months imprisonment may have been appropriate, but without any discernible reason had then proceeded to take a starting point of 12 months. By reference to Tiopira v Police, where a number of sentencing decisions involving dishonesty offending were reviewed, the Crown submitted Judge Crosbie’s starting point of 22 months was unimpeachable and that it ought not be adjusted to reflect what the Crown submitted was the aberrant approach

of Judge Turner.¹²

[28] Mr Williams, when addressing the Crown’s submission on this point, accepted Judge Crosbie’s starting point conformed with Tiopira but submitted that the approach taken by Judge Turner could not be described as aberrant and, while

_{lenient, it did not give rise to the type of concerns identified by the Court of Appeal}

¹¹ _{Mau’u v R [2011] NZCA 385.}

¹² Tiopira v Police, above n 9.

in Mau’u. Mr Williams submitted the need to avoid unfairness and promote consistency in sentencing when dealing with co-offenders for like offending required his sentence to be adjusted.

[29] The question of disparity has to be assessed and determined on the facts of each case.¹³ Importantly, the issue of disparity must ultimately be examined by a comparison between the final sentences imposed rather than the starting points taken by the respective Judges, even though that element may be the source of the disparity. Mr Taimalie was sentenced to home detention based on an end sentence of

10 months imprisonment. He had two previous convictions for dishonesty offending compared to Mr Williams who had some 90 previous convictions for offending of that type.

[30] Judge Crosbie considered that Mr Williams had demonstrated no remorse or contrition. When set against his substantial history of dishonesty offending, and notwithstanding a recent hiatus in that offending, the Judge concluded there was a high risk of reoffending. Deterrence and denunciation were dominant considerations in the approach taken to the sentencing of Mr Williams. That appears to be in contra-distinction to that of Judge Turner in relation to Mr Taimalie which, while acknowledging that an 18 month starting point could have been taken, chose to take what must be considered a merciful starting point of only 12 months.

[31] When that background is taken into account together with the respective roles of the two offenders in the present offending, and the fact Mr Williams was also for sentence on a separate charge of driving whilst disqualified for which he had three previous convictions, I consider there were good reasons justifying different sentences being imposed. I also note Mr Williams received a 15 per cent discount for his guilty plea which was only entered in the week before his scheduled trial and could in the circumstances be considered generous. Judge Crosbie himself recognised this but he was no doubt mindful of the need to ensure the ultimate sentence imposed did not breach the sentence indication he had earlier provided and

_{after which Mr Williams’ entered his plea.}

¹³ Mau’u v R, above n 11, at [29]

[32] Having made those observations, I still have some unease about the extent of the difference between the two sentences which has resulted from the different starting points taken by each Judge.

Six month uplift for previous offending

[33] Mr Williams also appeals the uplift of six months for his previous offending. Section 9(1)(j) of the Sentencing Act provides that the “number, seriousness, date, relevance, and nature of any previous convictions of the offender” are aggravating factors personal to the offender. The remarks of Myers CJ in R v Casey, regarding

the place of previous convictions in the sentencing exercise, remain apposite:¹⁴

The Court should always be careful to see that a sentence of a prisoner who has been previously convicted is not increased merely because of those previous convictions. If a sentence were increased merely on that ground it would result in the prisoner being, in effect, sentenced again for an offence which he has already expiated. We agree that the sentence passed ought to bear some relation to the intrinsic nature of the offence and gravity of the crime. But it by no means follows that the previous convictions must be ignored. It is necessary to take them into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime, and a prisoner’s previous convictions are involved in the question of his character. Further, the previous convictions of a prisoner may indicate a predilection to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.

[34] The Court of Appeal has noted the difficulty of reconciling the principle of the preventive purpose of punishment with the principle of not punishing an offender again for earlier offending:¹⁵

We recognise that this balancing [of approaches] is not easy. No rigid lines are really possible. Moreover, the protection of the public against those likely to offend repeatedly can all too easily be seen as an additional punishment for past offences. For these reasons the law has sought to preserve the preventive aspect being given too [m]uch importance. The controlling principle which it has developed to prevent it taking charge in a dominant way is that a reasonable relationship to the penalty justified by the gravity of the offence must be maintained. The desirability of prevention must be balanced against that gravity.

¹⁴ _{R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594 (CA) at 597.}

¹⁵ R v Ward [1976] 1 NZLR 588 (CA) at 591.

[35] More recent cases illustrate the permissible boundaries of increasing a sentence because of an offender’s criminal history. In Ripia v R the sentencing Judge took a starting point of two years and three months’ imprisonment for a charge of wounding with intent to injure.¹⁶ The Judge then uplifted this by 12 months, or 44 per cent, to account for Mr Ripia’s 90 previous convictions for a variety of offending. The Court of Appeal held there can be no fixed limit to the available size

of an uplift for previous convictions; it is for the evaluation of the sentencing Judge.¹⁷ On appeal it was noted the uplift was to be assessed as part of the wider inquiry into whether the final sentence was manifestly excessive. The Court held that against what it considered to be a low starting point, a 12 month uplift was not excessive.

[36] However, in Tiplady-Koroheke v R, the sentencing Judge had imposed a six month uplift from a starting point of two years for two previous sets of convictions for violent offending committed some six to eight years previous.¹⁸ Although the Court of Appeal held that public protection justified an uplift, it considered that an increase of no more than three months’ imprisonment for the appellant’s previous convictions was appropriate.

[37] In R v Columbus the Court of Appeal considered a sentence appeal for burglary offending amongst various other offences.¹⁹ The appellant had 89 previous convictions, 13 of which were for burglary and 34 for property related offences. The Court of Appeal stated that previous sentences of imprisonment had not served to deter the appellant and that the “community requires continued protection from him”.²⁰ The Court held that the appellant’s previous history justified an increase of

12 months against the adjusted starting point of one and a half years. That amounted to 67 per cent, yet the sentence was not disturbed.

[38] Mr Williams contested whether Colombus provided appropriate guidance, concerned as it was with the offending of a very bad recidivist burglar. I agree care

¹⁶ _{Ripia v R [2011] NZCA 101.}

¹⁷ _{At [10].}

¹⁸ _{Tiplady-Koroheke v R [2012] NZCA 477.}

¹⁹ _{R v Columbus [2008] NZCA 192.}

²⁰ At [19].

is required before placing too much weight on that authority, but there are some parallels between Mr Williams’ long history of dishonesty offending and the appellant in that case. Notably, the appellant, like Mr Williams, had not offended for some years and the resort back to the same type of offending was considered to be an influential factor in warranting the size of the uplift. In the present case, Judge Crosbie noted that Mr Williams’ offending indicated a “return to his former ways”.

[39] It is apparent from the authorities that there is no set limit for an uplift for previous offending. It is an evaluation for the sentencing judge. Care must be taken to prevent re-punishing an offender for previous offending, however, the sentencing principles of protection, prevention and deterrence must also be considered and an offender’s previous history will bear on the Court’s assessment of the need to achieve those sentencing purposes. In this case Mr Williams has some 90 previous convictions for dishonesty offending alone, although the last was in 2005. Including non-dishonestly related offences Mr Williams has upwards of 100 previous convictions, including more recent offending in 2013 for which he received short periods of imprisonment. When previous offending reaches this level, the need for personal deterrence and the protection of the community become increasingly influential.

[40] In Mr Williams’ case, while a six month or 27 per cent uplift may be considered stern, I do not consider it was excessive. Importantly, it is the final sentence which must be the focus rather than its component parts.

Decision

[41] Having reviewed the matters raised by Mr Williams, I consider the size of the difference in the final sentences imposed on him and his co-offender cannot be justified. Mr Williams’ sentence of two years standing alone is not manifestly excessive. It is only when the respective approaches of the two sentencing Judges to the starting point for the offending is examined that concerns arise.

[42] I do not accept the Crown’s submission that Judge Turner’s approach to the sentencing of Mr Taimalie can be described as aberrant. It clearly was lenient. Judge Crosbie, as I understand the position from counsel, was not informed of the

sentence imposed on Mr Taimalie earlier in the year. I suspect had he been aware he would have thought himself obliged to recalibrate the sentence he would have otherwise imposed on Mr Williams. I therefore consider that in order to ensure there is an appropriate level of parity between the two offenders some adjustment is required to be made to Mr Williams’ sentence.

[43] Approaching the matter afresh, I consider that, in light of the starting point taken by Judge Turner, a 15 month starting point could have been adopted for Mr Williams. An uplift of three months for Mr Williams’ fourth driving whilst disqualified conviction would have been appropriate given a non-custodial sentence was obviously unavailable. The six month uplift for Mr Williams’ very substantial relevant prior offending also could, in my view, be legitimately applied, even with the adjusted starting point. The generous 15 per cent reduction for the guilty plea mitigates any concern that the suggested components of the sentence might be considered stern.

[44] As I have already sought to emphasise, it is the final sentence when measured against the offender’s overall culpability which is critical, not its ingredients. Applying the revised approach I have outlined results in a 20 month sentence of imprisonment. I consider a term of imprisonment of that length accords with the principle of the general desirability of achieving consistency when sentencing co-offenders in the circumstances of the present case.

[45] Accordingly, I allow the appeal. The sentence of two years is quashed and substituted with a sentence of 20 months imprisonment.

Solicitors:

Sarah Saunderson-Warner, Dunedin

RPB Law, Dunedin