WILLIAMS v NEW ZEALAND POLICE [2023] NZCA 475

WILLIAMS v NEW ZEALAND POLICE [2023] NZCA 475 [29 September 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGEOF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDUREACT 2011IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA412/2023[2023] NZCA 475BETWEEN BARRIE JOHN WILLIAMSApplicantAND NEW ZEALAND POLICERespondentCourt: Courtney, Whata and Downs JJCounsel: N P Bourke for ApplicantN J Wynne for RespondentJudgment:(On the papers)29 September 2023 at 2.30 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is granted.____________________________________________________________________REASONS OF THE COURT(Given by Whata J)[1] Mr Williams was convicted in the District Court and sentenced to eight months'imprisonment for indecent communication with a 14-year-old girl. An order forregistration under the Child Protection (Child Sex Offender Government AgencyRegistration) Act 2016 (CPA 2016) was also made. His appeal to the High Courtagainst sentence was dismissed. He now seeks leave for a second appeal against hissentence.[2] Leave may only be granted if the proposed appeal raises an issue of general orpublic importance, or if there is a risk that a miscarriage of justice has occurred or mayoccur if the appeal is not heard.1Facts[3] The facts are helpfully set out in the judgment of Palmer J as follows:2What happened?[1] In November 2022, Mr Barrie Williams, who was then 40 years old,worked at the same place as the then 14-year-old complainant. From 15November 2022, he sent her messages via social media complimenting her atevery opportunity and often asked her for "fit checks" or pictures of heroutfits. In response to one, Mr Williams replied "[l]ooking at your snapstrying to not look too hard at your chest". The complainant felt uncomfortableand ceased contact at the time. On 18 November 2022, Mr Williamsapproached the complainant at work and said "[s]o are you going to keep meup all night again ?". The complainant felt uncomfortable and went home.Later the same evening, Mr Williams sent the complainant multiple photos onSnapchat including of him with his jeans unzipped exposing his underwearshowing an outline of his genitalia. He also sent her two photographs of himlying fully naked on his stomach, and a selfie with a naked upper torso.Mr Williams told the Police he knew the complainant was 14 and knew whathe sent was indecent. He pleaded guilty to one charge of indecentcommunication with a young person.[2] In 2012, Mr Williams was sentenced to two years and six months'imprisonment for sexual connection with a young person aged between 14 and16 years. In 2014, he was recalled to prison after breach of his parole releaseconditions by contacting that victim. In advice to the Court, the Departmentof Corrections reported that Mr Williams had attended 17 offending-specificcounselling and treatment sessions while incarcerated in 2013–2014. Acomprehensive Safety and Relapse Prevention Plan was developed with himbefore he was recalled to prison and another one afterwards. Correctionsconsidered that "Mr Williams' persistent denial of much of his offendingagainst his victims, past and present, does not bode well for an offence-freelifestyle upon his release". It considered that he displayed "little to no insightinto the long term emotional or psychological damage that his actions mayhave inflicted on his victim and denied the extent of his offending at everyopportunity". It assessed his risk of similar sexual offending was high andcould recommend no sentence other than imprisonment, with compulsoryattendance at a sex offenders programme in prison.[3] On 5 May 2023, in the District Court at New Plymouth,Judge A S Greig sentenced Mr Williams to eight months' imprisonment.3The Judge identified the aggravating factors of the offending to be: the extentof the harm to the victim; the vulnerability of the victim due to her age; a1 Criminal Procedure Act 2011, s 253(3).2 Williams v Police [2023] NZHC 1935.3 Police v Williams [2023] NZDC 9051.breach of trust due to Mr Williams' age; premeditation.4 He also stated thatMr Williams' previous convictions made the matter more serious.5 The Judgerelied on the Corrections advice and set the starting point at nine months'imprisonment.6 The Judge:7(a) uplifted the sentence by two months for his previousconvictions;(b) gave a 25 per cent discount for the early guilty plea;(c) did not provide a discount for remorse because of reportsMr Williams blamed the complainant for his role in theoffending;8(d) did not grant leave for Mr Williams to apply for homedetention, largely based on the Probation Officer's report andthe need to deter and denounce his offending;(e) noted that Mr Williams was automatically placed on the ChildSex Offender Register; and(f) granted Mr Williams bail pending appeal with a 7 pm to 7 amcurfew and other conditions.[4] In dismissing the appeal against the District Court sentence, Palmer J wassatisfied that the uplift for prior offending was justified as it indicated a predilectionto offend in a specified way. He said:9Matters did not get as far down the path as they did with his previous sexualconnection with a 14-year-old, but Mr Williams' conduct was certainlyheading in the same direction. And his conviction for contacting the victim ofthat offending adds to his pattern. The previous offending is not long enoughago to interrupt that, given Mr Williams' period of imprisonment. As theJudge said here, there is a need to protect society by the imposition of adeterrent sentence and effect on the victim supported the need for deterrence.The uplift was proportionate. [5] The Judge was also satisfied that the sentence of imprisonment was welljustified because:[10] I also consider the sentence of imprisonment is well justified as theleast restrictive sentence appropriate in the circumstances:(a) The Judge carefully considered whether or not to imprisonMr Williams. He took into account the principles of4 At [11].5 At [11].6 At [35].7 At [35].8 At [33].9 Williams v Police, above n 2, at [9].deterrence and denunciation but also the interests of thevictim and protection of the community.(b) The pattern of offending indicated a previous term ofimprisonment had not deterred further offending. Extensiveprevious rehabilitation did not prevent it either. In thosecircumstances there is no reason to suppose that homedetention would either deter or rehabilitate. Home detentionwithout electronic monitoring is even less likely to do so. Ifcounselling programmes for Mr Williams are available inprison, I urge Corrections to provide them to him. If not, atleast imprisonment prevents further offending for a period.(c) Corrections' report provided a sound basis for the Judge'sdecision. Mr Williams' guilty plea after the offending doesnot affect its cogency. Neither does his affidavit disputingCorrections' assessment.(d) The sentence is not manifestly excessive.(e) That is not affected by the fact that the sentence automaticallyrequired registration as a child sex offender. That is theconsequence of such offending.Proposed grounds of appeal[6] Mr Williams seeks to argue the following grounds of appeal:(a) The Courts failed to adequately account for the impact of registrationunder the CPA 2016.(b) The High Court erred in upholding the uplift for the previousconviction.(c) The Courts failed to impose the least restrictive outcome.[7] Of these matters, only the first ground potentially raises an issue of general andpublic importance. The remaining two grounds are fact specific and a matter ofdiscretionary assessment. Furthermore, putting aside the first alleged error, thereasoning of the District Court and High Court on these matters was sound.We therefore say no more about them.[8] As to the first issue, dealing with the effect of registration under the CPA 2016,Mr Bourke for Mr Williams submits, referring to various authorities,10 that registrationis punitive and a penalty and this factor was not adequately taken into account in thesentencing in either the District Court or High Court. In so doing, the sentencing failedto give effect to a fundamental principle of sentencing, namely that any punishmentmust be proportionate to the features of the offending.[9] Ms Wynne for the Crown responds that, referring to the same key authorities,11it was not the intention of Parliament that the registration would trigger a discount forsentences. She contends further that the extent to which registration might bear on thesentence is not a mandatory factor and "that all depends on the circumstances".12Moreover she submits that the Courts below considered a sentence of imprisonmentand registration was a proportionate response.Assessment[10] While there is a consensus that registration is punitive, the sentencing responseto that fact is not yet settled. As this Court said in L (CA564/2022) v R, whether theimpact of registration may be a relevant factor to take into account when deciding toimpose a custodial sentence has not been considered by this Court.13 We think thefacts of this case, involving relatively minor offending yet a custodial sentence,provide a proper vehicle for consideration of this issue. Furthermore, while the HighCourt mentioned this issue when summarising the argument for Mr Williams, it is notexpressly dealt with in the reasoning. We consider therefore that a cautious approachis warranted, and accordingly leave to appeal on this issue is granted.Outcome[11] The application for leave to bring a second appeal is granted. The specificissues for consideration are:10 Bell v R [2017] NZCA 90; D (SC 31/2019) v Police [2021] NZSC 2, [2021] 1 NZLR 213; Bird vPolice [2017] NZHC 1296; Hughes v R [2022] NZHC 2835; T v R [2018] NZHC 3274; Partridgev R [2017] NZHC 2440; Hales v R [2023] NZHC 670; and C v Police [2019] NZHC 3431.11 Bell v R and D (SC 31/2019) v Police, above n 10.12 Citing L (CA564/2022) v R [2023] NZCA 144 at [91].13 At [91].(a) whether the impact of registration is a relevant factor to be taken intoaccount when deciding to impose a custodial sentence; and if so(whether generally or in this case)(b) whether the Courts below failed to give adequate consideration to thisfactor.Solicitors:Crown Law Office, Wellington for Respondent