WILLIAMS v NEW ZEALAND POLICE [2023] NZHC 1935

WILLIAMS v NEW ZEALAND POLICE [2023] NZHC 1935 [21 July 2023]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2023-443-13[2023] NZHC 1935BETWEEN BARRIE JOHN WILLIAMSAppellantAND NEW ZEALAND POLICERespondentHearing: 4 July 2023Appearances: N P Bourke for the AppellantH Bullock for the RespondentJudgment: 21 July 2023JUDGMENT OF PALMER JCounsel/SolicitorsN P Bourke, Barrister, New PlymouthC & M Legal, New PlymouthWhat happened?[1] In November 2022, Mr Barrie Williams, who was then 40 years old, worked atthe same place as the then 14-year-old complainant. From 15 November 2022, he senther messages via social media complimenting her at every opportunity and often askedher for "fit checks" or pictures of her outfits. In response to one, Mr Williams replied"[l]ooking at your snaps trying to not look too hard at your chest". The complainantfelt uncomfortable and ceased contact at the time. On 18 November 2022, MrWilliams approached the complainant at work and said "[s]o are you going to keep meup all night again ?". The complainant felt uncomfortable and went home. Laterthe same evening, Mr Williams sent the complainant multiple photos on Snapchatincluding of him with his jeans unzipped exposing his underwear showing an outlineof his genitalia. He also sent her two photographs of him lying fully naked on hisstomach, and a selfie with a naked upper torso. Mr Williams told the Police he knewthe complainant was 14 and knew what he sent was indecent. He pleaded guilty toone charge of indecent communication 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 and 16years. In 2014 he was recalled to prison after breach of his parole release conditionsby contacting that victim. In advice to the Court, the Department of Correctionsreported that Mr Williams had attended 17 offending-specific counselling andtreatment session while incarcerated in 2013–2014. A comprehensive Safety andRelapse Prevention Plan was developed with him before he was recalled to prison andanother one afterwards. Corrections considered that "Mr Williams' persistent denialof much of his offending against his victims, past and present, does not bode well foran offence-free lifestyle upon his release". It considered he displayed "little to noinsight into 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 and couldrecommend no sentence other than imprisonment, with compulsory attendance at asex offenders programme in prison.[3] On 5 May 2023, in the District Court at New Plymouth, Judge A S Greigsentenced Mr Williams to eight months' imprisonment.1 The Judge identified theaggravating factors of the offending to be: the extent of the harm to the victim; thevulnerability of the victim due to her age; a breach of trust due to Mr Williams' age;premeditation.2 He also stated that Mr Williams' previous convictions made theoffending more serious.3 The Judge relied on the Corrections advice and set thestarting point at nine months' imprisonment.4 The Judge:5(a) uplifted the sentence by two months for his previous convictions;(b) gave a 25 per cent discount for the early guilty plea;(c) did not provide a discount for remorse because of reports Mr Williamsblamed the complainant for his role in the offending;6(d) did not grant leave for Mr Williams to apply for home detention, largelybased on the Probation Officer's report and the need to deter anddenounce his offending;(e) noted that Mr Williams was automatically placed on the Child SexOffender Register; and(f) granted Mr Williams bail pending appeal with a 7 pm to 7 am curfewand other conditions.[4] The end sentence was eight months' imprisonment.7 Mr Williams appeals thesentence.1 Police v Williams [2023] NZDC 9051.2 At [11].3 At [11].4 At [35].5 At [35].6 At [33].7 At [35].Submissions[5] Mr Bourke, for Mr Williams, submits the uplift for previous convictions wasnot justified because the previous offending was 10 years ago and the recent offendingdid not involve any physical conduct. He relies on Fry v R.8 But primary submissionis that a community-based sentence should have been imposed instead of a shortsentence of imprisonment. The Judge erred in considering electronic monitoring wasnecessary to impose home detention. Mr Williams' compliance with bail indicatesthere is no risk that needs to be managed by electronic monitoring. Contrary to theCorrections' report, he fully accepts responsibility as indicated in an affidavit. TheJudge also erred in not considering imprisonment as a measure of last resort and infailing to consider the punitive impact of being on the Child Sex Offender Register.Imprisonment on top of that is grossly disproportionate. The Judge erred in assessingthe deterrent impact of home detention at his former family home when he theproposed address was that of his mother. Allowing Mr Williams to remain in thecommunity, where he has had no bail compliance difficulties, will allow him tocontinue counselling, promote his rehabilitation, and accordingly provide greaterprotection to the community.[6] Ms Bullock, for the Police, submits the uplift was proportionate to the startingpoint and was justified given the similarity of the present offending to the previousoffending. She submits the Judge had regard to the interests of the victim, denouncingand deterring Mr Williams' conduct and protecting the community. Mr Williams'parents' address was too remote and the address of his wife and children was too closeto a school. Mr Williams breached previous release conditions on multiple occasionsby contacting the victim of his earlier offending and his recent offending, after alreadyserving a sentence of imprisonment for similar offending showed that home detentionwould not be a strong-enough deterrent. Registration should not be taken into accountin determination whether imprisonment is appropriate or its length.8 R v Fry DC Invercargill CRI-2013-059-496, 14 February 2014.Should the appeal be allowed?[7] Appeals against a refusal of leave to apply for home detention are consideredappeals against sentence. Under s 240(2) of the Criminal Procedure Act 2011, I mustallow the appeal if satisfied there has been a material error in the sentence imposedand a different sentence should be imposed. The focus is on whether the end sentenceis within the available range.9 The Court will only intervene and substitute its ownviews on appeal if the sentence is "manifestly excessive".10[8] In Reedy v Police Dunningham J stated the following principles in relation touplifts for previous offending:11(a) there will be no uplift for the bare existence of previous convictions— to do so would be to punish offending more than once;(b) The permissible lines of reasoning, justifying an uplift, fall into threebroad categories:(i) previous convictions bearing upon character and culpability;(ii) indication of predilection to offend in a specific way (anindicator of reoffending);(iii) the need to protect society by the imposition of a deterrentsentence.This necessarily requires the uplift to be firmly tied to specific aspectsof the offender's criminal history.12(c) the uplift must remain proportionate to the starting point fixed by thesentencing Judge.13(d) there is no fixed figure beyond which an uplift will be held to bedisproportionate.14 This is a matter to be determined, at first instance,by the sentencing judge having regard to all relevant factors (i.e.number, seriousness and nature of previous convictions, previoussentences imposed, time elapsed since the last conviction etc).[9] I consider these principles support the imposition of an uplift for Mr Williams'previous offending, which indicate a predilection to offend in a specific way. Matters9 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27], [33], and [35].10 Ripia v R [2011] NZCA 101 at [15].11 Reedy v Police [2015] NZHC 1069 at [19].12 O'Connor v R [2014] NZCA 328 at [41].13 See for example Tiplady-Koroheke v R [2012] NZCA 477; and Hodgkinson v R [2012] NZCA 478.14 Ripia v R [2011], above n 10, at [10].did not get as far down the path as they did with his previous sexual connection witha 14-year-old, but Mr Williams' conduct was certainly heading in the same direction.And his conviction for contacting the victim of that offending adds to his pattern. Theprevious offending is not long enough ago to interrupt that, given Mr Williams' periodof imprisonment. As the Judge said here, there is a need to protect society by theimposition of a deterrent sentence and effect on the victim supported the need fordeterrence. The uplift was proportionate. By contrast, the sentencing Judge in thecase of Fry v R did not explain the reasons for an uplift.[10] I also consider the sentence of imprisonment is well justified as the leastrestrictive sentence appropriate in the circumstances:(a) The Judge carefully considered whether or not to imprison MrWilliams. He took into account the principles of deterrence anddenunciation but also the interests of the victim and protection of thecommunity.(b) The pattern of offending indicated a previous term of imprisonment hadnot deterred further offending. Extensive previous rehabilitation didnot prevent it either. In those circumstances there is no reason tosuppose that home detention would either deter or rehabilitate. Homedetention without electronic monitoring is even less likely to do so. Ifcounselling programmes for Mr Williams are available in prison, I urgeCorrections to provide them to him. If not, at least imprisonmentprevents further offending for a period.(c) Corrections' report provided a sound basis for the Judge's decision. MrWilliams' guilty plea after the offending does not affect its cogency.Neither does his affidavit disputing Corrections' assessment.(d) The sentence is not manifestly excessive.(e) That is not affected by the fact that the sentence automatically requiredregistration as a child sex offender. That is the consequence of suchoffending.Result[11] I dismiss the appeal.[12] Having dismissed the appeal, I do not maintain Mr Williams' bail as Mr Bourkesought. I do not consider Mr Williams has shown why bail should be granted and amnot satisfied it would be in the interests of justice to grant bail. I do not consider thegrounds of appeal are strong, the length of the sentence imposed is not great, and MrWilliams' personal circumstances do not militate in favour of bail.Palmer J