WILLIAMS v R [2023] NZCA 156

WILLIAMS v R [2023] NZCA 156 [5 May 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA440/2022[2023] NZCA 156BETWEEN JUDI-ANNE RAUPUTIPUTI WILLIAMSAppellantAND THE KINGRespondentHearing: 20 March 2023Court: Clifford, Dunningham and Cull JJCounsel: C G Farquhar and M S C Rollason for AppellantL J Sullivan for RespondentJudgment: 5 May 2023 at 11.00 amJUDGMENT OF THE COURTA The appeal against sentence is allowed. We quash the sentence offour years and eight months' imprisonment on the charges of supplyingmethamphetamine, of offering to supply methamphetamine and ofparticipating in an organised criminal group.B On each of those offences, a concurrent sentence of three years and11 months' imprisonment is imposed.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)Introduction[1] On 18 July 2022, Judi-Anne Rauputiputi Williams was sentenced byvan Bohemen J to four years and eight months' imprisonment1 on representativecharges of supplying methamphetamine, of offering to supply methamphetamine,2 anda charge of participating in an organised criminal group.3[2] Ms Williams appeals her sentence on the following grounds:(a) the Judge erred by setting an excessive starting point; and(b) the Judge erred by applying insufficient discounts to recognise thesubstantive matters raised by the s 27 report, and her potential forrehabilitation and remorse.Background[3] Ms Williams was convicted along with six co-offenders as a result of a policeinvestigation into the manufacture and supply of methamphetamine within theWaikato region. Much of the evidence was gathered through the interception ofcommunications following the issue of surveillance device warrants.[4] The individuals identified through the investigation included:(a) Mr Michael Ormsby, who was a senior member of the Mongrel MobWaikato chapter and the main supplier of money to the organisedcriminal group in order to facilitate the manufacture and supply ofmethamphetamine.(b) Mr Stephen Griffiths, who was the syndicate's methamphetaminemanufacturer. He worked beneath Mr Ormsby, Mr Heller andMr Smith. He directed Mr Smith and Mr Heller to obtain precursormaterials and then manufacture methamphetamine.1 R v Williams [2022] NZHC 1712.2 Misuse of Drugs Act 1975, s 6(1)(c); and Crimes Act 1961, s 66.3 Crimes Act 1961, s 98A.(c) Mr James Smith, who was a member of the Mongrel Mob world chapterand a close associate of Mr Heller and Mr Griffiths. He assistedMr Griffiths in the task of manufacturing methamphetamine and wouldobtain his portion of the finished product to supply.(d) Mr Richard Heller, who was a senior member of the Mongrel Mobrogue chapter, and sat below Mr Ormsby. He was the partner ofMs Williams and facilitated the wholesale supply of methamphetaminefrom Mr Griffiths to Ms Williams and others.(e) Ms Williams, who sat below Mr Heller and facilitated the day-to-daysupply of methamphetamine to a regular customer base, as well asrunning a number of "drug houses" in the community, including oneoperated by Mr King. Ms Williams used other family members beneathher to assist in the day-to-day operation, including her daughter-in-law,Ms Timoko.(f) Mr Neville King, who sat beneath Ms Williams and Mr Heller, andoperated a "drug house" in Fairfield, Hamilton for the purpose ofsupplying methamphetamine for Ms Williams and Mr Heller to hiscustomer base. He would also source wholesale quantities ofmethamphetamine for Ms Williams when she was waiting forMr Griffiths.(g) Ms Brittany Timoko, who sat beneath Ms Williams and supplied smallquantities of methamphetamine and facilitated the collection of moneyfor Ms Williams.[5] Police identified that Ms Williams supplied methamphetamine on at least74 occasions. However, the quantity was only specified on 36 of the 74 transactions,and on those cases, she supplied a total of at least 392.55 g of methamphetamine.Police further identified that in the same period Ms Williams offered to supplymethamphetamine on at least 16 occasions. Again, the amount offered was not alwaysstipulated. A quantity was specified on nine of the 16 occasions and totalled at least70.6 g of methamphetamine.Sentencing[6] The seven defendants were not sentenced together. Some of the defendantssought sentencing indications and they all entered guilty pleas at different stages in2021 and 2022, resulting in five different High Court Judges assessing the appropriatestarting points for the defendants at different hearings.4 In the end, Wylie J sentencedMr King on 3 February 2022,5 Lang J sentenced Mr Griffiths on 18 February 2022,6van Bohemen J sentenced Mr Ormsby on 15 July 2022,7 and Powell J sentencedMr Smith, Mr Heller and Ms Timoko on 11 August 2022.8[7] Ms Williams was sentenced by van Bohemen J on 18 July 2022, havingpleaded guilty two weeks prior to trial and following the Crown's agreement not tooffer evidence on two further charges of conspiring to supply methamphetamine,9 andpossessing methamphetamine for supply.10[8] In sentencing Ms Williams, the Judge noted the total identifiable amount ofmethamphetamine she supplied or offered to supply was 463.15 g.11 He observed that,without taking into account the many other occasions on which she supplied or offeredto supply methamphetamine, that placed her in band three of the sentencing bands setout by the Court of Appeal in Zhang v R for methamphetamine related offending.12This band has a starting point of between six and 12 years' imprisonment.13 In termsof the categories of role described in Zhang, being "leading", "significant" and"lesser", the Judge determined her role was "significant". He said she clearly held anoperational function within the chain, she was motivated by commercial gain, and she4 In addition to the four judges involved in sentencing, Venning J gave the sentencing indication forMr Smith, and his starting point was adopted by Powell J in sentencing: R v Smith and Ors[2022] NZHC 1975 at [3].5 R v King [2022] NZHC 85.6 R v Griffiths [2022] NZHC 218.7 R v Ormsby [2022] NZHC 1711.8 R v Smith and Ors, above n 4.9 Misuse of Drugs Act 1975, s 6(2A).10 Section 6(1)(f) and (2).11 R v Williams, above n 1 at [45].12 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.13 At [125].had an awareness and understanding of the scale of the operation because of herassociation with other group members, particularly Mr Heller who was her partner andthe father of two of her children.14[9] The Judge then referred to the starting points adopted for her co-offenders(whether on sentencing or on an accepted sentencing indication).15 The starting point,as indicated by Powell J, for Mr Heller, whose offending involved an identifiablequantity of some 868 g of methamphetamine, was 10 and a half years. The startingpoint for Mr King's offending, which involved approximately 350 g, was eight yearsand nine months. The Judge concluded:[55] Given you supplied or offered to supply at least 463.15 grams ofmethamphetamine, which is close to the top of band three, and have admittedsupplying or offering to supply on 45 other occasions, but because of theconsiderations I referred to earlier, I consider a starting point of nine years andtwo months' imprisonment is appropriate. That places you between Mr Hellerand Mr King, but closer to Mr King.[10] In terms of the guilty plea discount, the Judge noted that although Ms Williams'plea was not given at the earliest opportunity, three of her co-offenders had received,or were advised they would receive, a 25 per cent discount, and he agreed with theCrown's submission that, for consistency, she should receive the same discount.16The Judge declined to uplift for previous convictions, noting he saw little connectionbetween her earlier offending and her involvement in the commercial distribution ofmethamphetamine.17[11] The Judge then spent some time outlining Ms Williams' personalcircumstances, which were fully traversed in the s 27 report prepared byMs Raecheal Riddell.18 While Ms Williams had a loving relationship with her fatherand did well at school, she was beaten by her mother and sexually abused from anearly age by one of her cousins. She was introduced to drugs and alcohol at the ageof nine and had her first child at 14. She and her first child then witnessed her father'sdeath in traumatic circumstances. She then had a series of violent relationships and14 R v Williams, above n 1 at [48]–[49].15 At [54].16 At [57]–[60].17 At [63].18 At [64]–[68].was regularly beaten by the partner with whom she had five of her nine children.Through her last partner, she was drawn into the world of the Mongrel Mob andcriminality, which led to her current offending.[12] Although it was not explicitly stated in the s 27 report, the Judge concludedthat what Ms Williams had experienced in her early childhood and through her seriesof violent relationships, was causally connected to her offending. It had led to hersubservience to her partners, including Mr Heller, and to her involvement incommercial drug dealing. The Judge was also satisfied that it led to her own use ofdrugs.[13] Finally, he accepted that her remorse and her commitment not to reoffend weregenuine, particularly noting the strong bond she had with her children would assist herin not re-engaging in drug dealing.19 He was satisfied that a discount of 17 per centwas appropriate in her case to reflect these matters.20 With a further discount ofeight months for time spent on EM bail,21 an end sentence of four years andeight months' imprisonment was imposed.22 The Judge declined to impose aminimum period of imprisonment.23Did the Judge err by adopting an excessive starting point?[14] Ms Farquhar submits that if comparable case law is considered, the appropriatestarting point should have been no more than eight years. While she acknowledgesthe Judge needed to have regard to the starting points taken for co-offenders, in hersubmission Mr King's starting point was too high and, in an effort to achieve parity,the Judge failed to set Ms Williams' starting points at an appropriate level.[15] In arguing that the starting point was too high, Ms Farquhar refers the Court tofour Court of Appeal authorities.24 In particular, she focused on the decisions in19 At [70].20 At [71].21 At [74].22 At [75].23 At [82].24 Smith v R [2020] NZCA 586; Parkes v R [2020] NZCA 203; Clark v R [2020] NZCA 641; andCullen v R [2022] NZCA 308.Parkes v R and Clark v R to submit the starting points adopted for Mr King andMs Williams were too high.[16] In Parkes v R, the Court of Appeal found Mr Parkes' offending involved atleast 563.8 g of methamphetamine and his role was a "leading role" in the supplyenterprise he was engaged in.25 While Mr Parkes was first sentenced before thedecision in Zhang v R issued, the Court of Appeal held that had he been sentencedunder Zhang, it is likely a lower starting point would have been adopted.26 The Courtof Appeal held that since he supplied well over 500 g of methamphetamine and playeda leading role, his starting point should be nine years' imprisonment, being at thebottom of band four.27 That starting point was applied when determining his appeal.[17] In Clark v R, Mr Clark was convicted of three charges of possessingmethamphetamine for supply, one charge of conspiring to supply methamphetamineand one charge of possession of an offensive weapon.28 He was found in possessionof 583 g of methamphetamine and conspired with others to obtain a further 137 g.The Court of Appeal agreed that Mr Clark had a significant role in the offending anddid not disturb the starting point of nine years and six months set at Mr Clark'ssentencing.29[18] Ms Farquhar then compares Ms Williams' role with Mr King's, noting that anoffender's role is a fundamental consideration for the Court in assessing culpabilityand arriving at the appropriate starting point.30 Here, she submits that althoughMs Williams supplied more methamphetamine than Mr King, their roles, whenassessed in the wider context of the operation, were more or less the same. They wereboth motivated by profit, and they both had their own customers they suppliedmethamphetamine to. However, Ms Williams never supplied wholesale amounts ofmethamphetamine to anyone, but Mr King did supply Ms Williams in this way whenshe was waiting for supply from Mr Griffiths. Ms Farquhar says both Ms Williamsand Mr King were distanced from the more serious offending of Mr Heller and25 Parkes v R, above n 24 at [42] and [49].26 At [52].27 At [51]–[52].28 Clark v R, above n 24.29 At [17].30 Zhang v R, above n 12 at [118]; and Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [63].Mr Smith who were involved in directing the manufacture of methamphetamine andtaking possession of reasonably large quantities from the manufacturers. While theCrown summary of facts places Mr King as "beneath" Ms Williams, in Ms Farquhar'ssubmission, their roles were more comparable than factually distinct.[19] Ms Farquhar argues the starting points taken for Ms Williams and Mr King'soffending were in the same range, or very close to the starting points in cases such asClark and Parkes, which involved more serious offending. In her submission, in aneffort to achieve parity with Mr King, the Judge failed to ensure the starting point wasconsistent with other cases. Furthermore, the starting points for Mr King andMs Williams were not, in her submission, consistent with Mr Heller's. Ms Williams'starting point was only 16 months less than that taken for Mr Heller, who dealt 404 gmore methamphetamine and played, in her view, a vastly more significant role.Discussion[20] There was no dispute that the starting point for methamphetamine begins withquantum, followed by consideration of the offender's role in that offending.31The identifiable quantity involved in Ms Williams' offending was 463.15 g, althoughshe admitted a number of further transactions for which the quantum was not specified.In these circumstances, we are satisfied the Judge correctly placed Ms Williams'offending in band three of Zhang v R, which applies to quantities between 250 to500 g.32 By reference to quantum alone, her offending was at the upper end of bandthree.[21] Turning next to her role, there was no dispute that Ms Williams' role was"significant" in terms of the Zhang categories. Given her association with Mr Heller,it was clear she had an awareness and understanding of the scale of the operation.She was in direct communication with those above her in the hierarchy during themanufacturing process and would relay progress updates to Mr Ormsby. She wouldthen receive bulk quantities of the manufactured drug to supply on to her customers.31 Berkland v R, above n 30 at [45].32 Zhang v R, above n 12 at [125].[22] As the Crown points out, there is no indication she was coerced by Mr Heller,nor that her relationship with him was violent or abusive generally. She, in turn,directed others below her and ran a number of drug houses. Although she was usingmethamphetamine at the time, her offending was primarily motivated by financial gainrather than addiction and she admits she was attracted by the financial freedom thatmethamphetamine dealing gave her. Having regard to the quantum ofmethamphetamine involved, and her significant role in the offending, the decision toplace her almost exactly in the middle of band three is appropriate.[23] The reference to other Court of Appeal authorities does not change thatconclusion. In Clark, the offending involved more methamphetamine (583 g forpossession for supply and 137 g for conspiring to obtain), but equally Mr Clark'sstarting point was four months higher at nine years six months.33 Mr Parkes alsosupplied more methamphetamine (563.8 g), and on appeal, his role was described as"leading".34[24] In our view, having regard to both the quantum and the significant roleMs Williams played, there was no error in the Judge placing her in the middle ofband three and, selecting a starting point of nine years and two months. This groundof appeal is rejected.Did the Judge give sufficient credit for personal mitigating features?[25] Ms Farquhar submits the 17 per cent global discount applied byvan Bohemen J for Ms Williams' personal mitigating factors was insufficient, sayingit was inconsistent with the mandate provided for in Zhang, and confirmed by theSupreme Court in Berkland.35[26] With reference to the s 27 report, Ms Farquhar submits that Ms Williams'offending is borne out of deprivation and appalling hardship, saying she was sexuallyabused as a child, used drugs and alcohol while at school, then became pregnant at 1433 Clark v R, above n 24.34 Parkes v R, above n 24.35 Berkland v R, above n 30.and was violently abused by her partners. She has ended up a partner of a gangmember and addicted to methamphetamine.[27] Ms Farquhar points out there were many encouraging signs in both the s 27report and the pre-sentence report that Ms Williams was ready to make a change in herlife. She displayed a depth of insight into her offending and acknowledged that shehad hurt others as a result of her actions.[28] Ms Farquhar also observed that the domestic element in this offending wasrelevant, noting the Judge accepted Ms Williams played a subservient role toMr Heller, which would factor into the assessment of her culpability.36 Furthermore,the Judge accepted that a nexus was established between Ms Williams' addiction andthe offending.[29] For these reasons, she submits the Court should apply at least a global30 per cent discount to mark the personal circumstances raised in the s 27 report aswell as Ms Williams' rehabilitative efforts, insight into, and remorsefulness for heroffending. She points out that this would be consistent with the combined discountsapplied at sentencing for Mr Smith, Mr Heller and Mr King for their personalmitigating features, saying the principle of parity is equally applicable at the secondstage of sentencing.Discussion[30] In Berkland v R, the Supreme Court recognised that background factors suchas addiction, and social, cultural and economic deprivation can mitigate a sentencewhere those factors have contributed causatively to the offending; that is, if they helpto explain in some rational way why the offender has come to offend.37 However, theCourt also pointed out that "the more serious and carefully orchestrated the offending,the more the courts are likely to emphasise the choice made by the offender to36 R v Williams, above n 1, at [26] citing Zhang v R, above n 12 at [126], where engagement bypressure, coercion or intimation suggests a "lesser" role.37 Berkland v R, above n 30 at [109], [120] and [128].offend."38 Other sentencing purposes may then become more prominent, particularlyto protect the community from the harm associated with drug dealing.39[31] When applied to Mr Berkland, the evidence revealed his upbringing involvedpoverty, trauma, chaotic home circumstances and poor educational outcomes.40He engaged in regular abuse of drugs and alcohol from childhood, commencedmethamphetamine use in his early 30s and became a heavy user following the deathof his older brother to whom he was close.41 In terms of rehabilitation and character,Mr Berkland's efforts at rehabilitation were described as "genuinely exceptional and[warranting] a significant sentencing response despite the gravity of his offending".42He had references which showed he had taken every opportunity offered to him beforesentencing and had become a positive role model for his peers in the drug treatmentunit programme.43 The Court held he should have received an overall discount of20 per cent, comprising:44(a) a discount of 10 per cent for his deprived background and the role ofaddiction in his offending; and(b) a discount of 10 per cent to account for his efforts at rehabilitation.[32] In our view, Ms Williams' background is comparable to that of Mr Berklandand, while she has not been able to demonstrate such commitment to rehabilitation,there is clear evidence that she has insight into her offending and is committed tochange for the sake of her children. It is difficult, therefore, to see that the 17 per centthat she was afforded at sentencing is inconsistent with the 20 per cent thatMr Berkland was afforded on appeal by the Supreme Court.[33] We acknowledge that in Solicitor-General v Heta, it was held a discount ashigh as 30 per cent could be justified for cultural deprivation and personal mitigating38 At [16(c)].39 At [16(c)].40 At [156].41 At [157].42 At [160].43 At [159].44 At [162].factors.45 However, that case cautioned against constricting the Judge from doing whatwas appropriate on the particular facts of the case noting, that there was no"discount 'range' for deprivation per se".46 Some cases had relatively modestdiscounts in the range of 0–6 per cent, while in other circumstances, larger discountsfor deprivation and trauma had been made.47[34] In Zhang v R, the Court reiterated that personal circumstances of an offenderare not excluded when sentencing for drug-related offending but, "may well have amore limited temporal effect in the context of serious commercial drug dealing".48Furthermore, the following mitigating considerations may be particularly germane tomethamphetamine offending:49(a) addiction;(b) mental health;(c) duress or undue influence; and(d) social, cultural and economic deprivation.[35] In Zhang, discounts for personal circumstances were afforded to a number ofthe appellants. Ms Crighton, who supplied or offered to supply 3.75 g to pay for herown drug use and to supply her partner with methamphetamine, at least in part toprevent violence, was afforded 30 per cent for her personal circumstances.50These included experiencing and witnessing abuse during her childhood, moving inand out of foster care during her teenage years, experiencing abusive and violentrelationships, being diagnosed with anxiety and depression and showing symptoms ofpost-traumatic stress disorder (PTSD).5145 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.46 At [62].47 At [62].48 Zhang v R, above n 12 at [133].49 At [137].50 At [196], [199] and [201].51 At [199].[36] Similarly, Ms Phillips was involved in a large drug transaction as a"driving companion" but her own offending involved low level transactions for thepurpose of feeding her drug addiction.52 A discount of 30 per cent was allowed for herpersonal circumstances with the Court agreeing that mental health and addiction issuescontributed to the offending.53 Again, there was a diagnosis of PTSD at the time ofoffending, and she had experienced significant trauma in her past, and had had volatilerelationships which contributed to depression and to her using methamphetamine as acoping mechanism.54 The Court also noted she was completing a residential alcoholand other drug programme and had remained addiction free for some time.55 However,it is clear these offenders were less culpable than Ms Williams.[37] However, Ms Farquhar also submits the discounts Ms Williams received forpersonal mitigating factors were inconsistent with that for her co-offenders. In thatregard, Mr Smith, who was involved in dealing at least 988.5 g, received a 25 per centdiscount for relevant background, loss of culture, addiction and mental health issues.56However, his background is arguably worse than Ms Williams. He had a significanthistory of physical and sexual abuse as a child that continued when he was put intocare. He left school functionally illiterate and was exposed to drugs and alcohol,including methamphetamine, from age 15. During this period, he was introduced tocriminal associates and ultimately the Mongrel Mob. There was evidence he wassuffering from PTSD as well as having a traumatic brain injury with ongoing effectson his brain function, and was also considered likely to meet the criteria for a majordepressive order. However, in addition to the 25 per cent allowed for these factors, afurther five per cent discount was allowed for rehabilitative potential, although notingthat there had been "relatively few signs of rehabilitation" to date.57[38] Similarly, Mr Heller had a turbulent childhood having suffered significantphysical and sexual abuse in foster homes and state institutions, resulting in earlyexposure to drug and alcohol abuse.58 Those same experiences introduced him to52 At [215].53 At [224].54 At [221] and [223].55 At [224].56 R v Smith, above n 4 at [46].57 At [47]–[48].58 At [54].criminal associates from a young age, including the Mongrel Mob and, again, therewas a credible basis for considering that he suffered from PTSD. For those matters,the Judge fixed the appropriate discount at 15 per cent.59 However, he gave a discretediscount for rehabilitative potential.60 While he was only beginning to work onalcohol and drug addiction issues and reconnecting with Te Ao Māori, the Judgeconsidered a further discount of 15 per cent was warranted, giving a total discount forthese factors of 30 per cent.[39] In our view, placed alongside the discounts that Mr Smith and Mr Hellerreceived for background factors and addiction, the 17 per cent discount Ms Williamsreceived appears consistent. What is not consistent is that they were afforded separatediscounts for rehabilitative potential which was included within the discount of17 per cent allowed for Ms Williams.[40] In our view, particularly having regard to the discounts afforded to her partnerMr Heller, for remorse and rehabilitative potential, there is a gross and unjustifieddisparity which should be remedied on appeal.61 It is immaterial that Mr Smith andMr Heller were sentenced subsequently to Ms Williams.62[41] The Judge accepted that Ms Williams' remorse and her commitment not toreoffend were genuine.63 The pre-sentence report noted that she was keen to do anynecessary rehabilitative programmes, saying:I have every intention of completing them. I want to be on track. I don't wantmy grandchildren growing and seeing me in prison. I will do anything thatcould help me to become a better person and be back with my family.She acknowledged, too, that "[a] lot of people were hurt because of my poor choices".The s 27 report writer spoke to her two adult children who supported their mother'sefforts to rehabilitate and move forward. Her son said he knows she did not want hermokopuna to think that prison was a normal way of life. Her desire to rehabilitate wasalso set out in an articulate letter she wrote to the Court, prior to sentencing. The letter59 At [55].60 At [57].61 Eketone-Mahara v R [2011] NZCA 71 at [25].62 R v Urlich [1981] 1 NZLR 310.63 R v Williams, above n 1 at [70].recorded shame and embarrassment at her offending, awareness of the damage she haddone to her family and the community, and her desire to make a positive change.[42] In our view, this evidence warranted a separate discount to the backgroundfactors and cultural deprivation that was causative of her offending, and we wouldafford an additional eight per cent discount for that, so that the total discount forbackground factors and remorse and rehabilitative potential is 25 per cent.[43] This results in a total discount of 50 per cent or 55 months on the starting pointof nine years and two months' imprisonment. That leads to a sentence of four yearsseven months' imprisonment from which must be deducted the further eight monthsto reflect her time on EM bail. The outcome is an end sentence of three years and11 months' imprisonment.Result[44] The appeal against sentence is allowed. We quash the sentence of four yearsand eight months' imprisonment on the charges of supplying methamphetamine, ofoffering to supply methamphetamine and of participating in an organised criminalgroup.[45] On each of those offences, a concurrent sentence of three years and 11 months'imprisonment is imposed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent