WILLIAMS v R [2019] NZCA 199

WILLIAMS v R [2019] NZCA 199 [4 June 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA546/2018[2019] NZCA 199BETWEEN NGAKIRI WILLIAMSAppellantAND THE QUEENRespondentHearing: 8 May 2019Court: Courtney, Lang and Whata JJCounsel: M W Ryan for AppellantM S Williams for RespondentJudgment: 4 June 2019 at 11.30 amJUDGMENT OF THE COURTA The appeal against sentence is allowed in part.B The minimum period of imprisonment of 50 per cent is quashed.____________________________________________________________________REASONS OF THE COURT(Given by Whata J)[1] Ngakiri Williams was sentenced to five years and nine months' imprisonmenton nine charges of burglary, six charges of dishonestly using a document, two chargesof receiving stolen property and one representative charge of supplying a Class Acontrolled drug.1 Judge Wharepouri imposed a minimum period of imprisonment1 R v Williams [2018] NZDC 21286 at [28] [Sentencing notes].(MPI) of 50 per cent and Ms Williams was ordered to pay reparation of $9,000following her release.2[2] Ms Williams appeals the sentence on the ground that it is manifestly excessiveas a result of the Judge taking too high a starting point, failing to adequately considertotality, and imposing an MPI.Background[3] Over a period of nearly six months from March 2012 to August 2012,Ms Williams burgled nine homes. She took credit cards and other possessions ofthe occupants of those homes. Some of the items taken were treasured, includingkeepsakes of departed loved ones. She used the credit cards to make various purchasesand withdraw cash. Her mode of operation involved targeting elderly persons inaffluent suburbs and breaking into their homes, usually while they were outsidegardening or engaged in some other household task. She would later callthe occupants, pretending to be an employee of the bank of the stolen cards and trickthem into divulging their PIN numbers.[4] Ms Williams was not alone in this offending. Ms Tearani Pawa drove her tofour of the victims' addresses. Ms Mayana Roberts also accompanied Ms Williamsand Ms Pawa on one occasion.[5] Ms Williams absconded to Australia in late March or early April 2013 whilston electronically-monitored (EM) bail awaiting trial for the charges related to thisoffending, and for supplying small quantities of methamphetamine.3 She continued tooffend there, receiving a sentence of imprisonment for near-identical offending of twoyears and eight months in 2015, before being released and held in a detention centrepending deportation.4 She was deported to New Zealand and remanded in custodyfrom June 2017, until she pleaded guilty to the abovementioned charges on 15 March2018.2 At [29]–[31].3 Ms Williams was charged with selling no more than 5 grams of methamphetamine.4 We do not have the benefit of the summary of this offending, but this is how it was characterisedby the Crown.Sentencing[6] The Judge fixed a starting point for the burglaries of six years.5 He appliedan uplift of 18 months for the dishonesty charges and a further 12 months for the drugoffending.6 A six-month uplift was then added to account for Ms Williams' 30 priorburglary convictions.7 This was, however, offset by a six-month discount for totality.8A nominal starting point of eight years and six months was therefore adopted.The Judge then reduced the sentence by 21 months for personal matters, including10 months for remorse and reparation, nine months for hardship and two months fortime spent on EM bail.9 A discount of 15 per cent or 12 months for her guilty pleawas then applied, resulting in an end sentence of five years and nine months, togetherwith a 50 per cent MPI.10[7] Ancillary orders were made remitting $9,000 of the $9,500 in fines outstandingbut ordering $9,000 reparation in favour of the victims.11The appeal[8] Mr Ryan for Ms Williams initially sought to challenge the starting point,the uplifts, the totality assessment and the imposition of the MPI. During argumentbefore us, however, he focused on the punitive effect of the MPI on Ms Williams,whose infant child will be shortly separated from her if she is not eligible for parolewithin two years. We therefore focus our attention on this aspect. Before doing so,it is necessary to briefly address the other issues raised in the appeal, as this setsthe frame for the analysis of the MPI.5 Sentencing notes, above n 1, at [16].6 At [17]–[18].7 At [19].8 At [20].9 At [21], [22] and [25].10 At [27]–[29].11 At [30].AnalysisWas the starting point too high?[9] The six-year starting point for the burglary offending was high, but not outsidethe range available.12 There were several aggravating factors. There were nineburglaries with nine directly-affected victims. The burglary offending waspremeditated and most of it was predatory of vulnerable elderly people who were athome while the burglaries occurred. The risk of confrontation was therefore high andin fact occurred, on one occasion, through the victim being duped into believing thatMs Williams' presence in the home was innocent. The emotional harm caused tothe victims and the damage to their sense of well-being, safety and security in theirown homes, would have been significant. A strong deterrent and denunciatorysentence was justified.Were the uplifts too high?[10] The uplift for the six deception charges of 18 months was within range.We agree with the Judge that this type of offending could, by itself, attract a startingpoint closer to 30 months' imprisonment.13 The further uplift of 12 months forthe drug offending involving up to 5 grams of methamphetamine could not be said tobe out of range, based on Fatu — which identifies a range of two to four years foroffending of this scale.14 The uplift of six months for 30 prior burglary convictions(spanning 15 years, including a lengthy period in prison) is firm but not excessive.Totality[11] The Judge reduced the nominal starting point by six months.15 We see no errorin this approach. That six-month discount was applied to adjust the nominal startingpoint from nine years' imprisonment, as calculated following the uplifts set out at [6]above, to a term of eight years and six months. The totality principle was thereforeapplied to appropriately reflect the scale of offending in this case.12 R v Burnie [2007] NZCA 54 at [22]–[23]; referring to Senior v Police (2000) 18 CRNZ 340 (HC)at [19].13 Sentencing notes, above n 1, at [17]; citing Tiopira v Police [2012] NZHC 1720.14 R v Fatu [2006] 2 NZLR 72 (CA) at [34].15 Sentencing notes, above n 1, at [20].Parity with co offender[12] In the present case, the two co-offenders were sentenced as follows:(a) Ms Roberts was sentenced to nine months' home detention for anumber of offences, including burglary and dishonest use of adocument.(b) Ms Pawa was sentenced to two years' imprisonment in relation to fourburglaries and associated offending.[13] We do not have the benefit of the sentencing notes for these offenders.Nevertheless, we see no material disproportionality. Ms Roberts' offending involveda single burglary incident and related deception. As to Ms Pawa, it is evident that shehad a relatively minor role in four burglaries, namely as the driver. It also is tolerablyclear Ms Williams was in charge and it was available to the Judge to take a muchfirmer line against her. We note also that Ms Pawa admitted her role in the offendingfrom the outset. This would have likely attracted a substantially higher discount interms of guilty plea.Minimum period of imprisonment[14] The relevant parts of section 86 of the Sentencing Act 2002 state:86 Imposition of minimum period of imprisonment in relation todeterminate sentence of imprisonment(1) If a court sentences an offender to a determinate sentence ofimprisonment of more than 2 years for a particular offence, it may,at the same time as it sentences the offender, order that the offenderserve a minimum period of imprisonment in relation to that particularsentence.(2) The court may impose a minimum period of imprisonment that islonger than the period otherwise applicable under section 84(1) ofthe Parole Act 2002 if it is satisfied that that period is insufficient forall or any of the following purposes:(a) holding the offender accountable for the harm done tothe victim and the community by the offending:(b) denouncing the conduct in which the offender was involved:(c) deterring the offender or other persons from committingthe same or a similar offence:(d) protecting the community from the offender.[15] We agree that the offending, together with Ms Williams' woeful record ofsimilar offending, engages each of the purposes noted at subs (2). But we are notsatisfied that, in the unusual circumstances of this case, an MPI is necessary to achievethem. The end sentence of five years and nine months' imprisonment, (includingan uplift of six months for other convictions), is a significant sentence, givingsubstantial vent to the purposes just mentioned.16[16] Moreover, Ms Williams' incarceration of 32 months for subsequent similaroffending in Australia and then for 18 months pending deportation forms part ofthe context within which to assess whether an MPI is required to meet publicexpectations of accountability, deterrence, denunciation, and protection ofthe community. In this regard, without the MPI, the minimum term Ms Williams willbe required to serve is 23 months or nearly two years' imprisonment. This would meanMs Williams will have been imprisoned continuously for 73 months or six years forthe two sets of burglary and related offending, and the detention. While the sentencefor the subsequent offending in Australia and detention do not respond to the presentoffending, we consider that the protection of the public has been adequately addressedby the combined period of continuous incarceration.[17] A similar approach to the MPI analysis was taken by this Court in Sullivan vR, also in relation to an appeal against sentence for burglary offending.17 In concludingthat an MPI was manifestly excessive, the Court took into account the effect of an11-month sentence already served in respect of subsequent burglary offending.1816 While comparing end sentences is fraught, the Full Bench of the High Court in Senior v Policenoted that an end sentence of 4 years for multiple burglaries was at the top end: see Senior v Police,above n 12, at [40]–[43] and [52].17 Sullivan v R [2016] NZCA 100.18 At [25]–[26].[18] The end sentence of five years and nine months' imprisonment was notmanifestly excessive. The imposition of an MPI was not, however, necessary,having regard to the 50 months of incarceration Ms Williams had already served forsubsequent near-identical offending and then as a detainee pending deportation fromAustralia.Result[19] The appeal against sentence is allowed in part.[20] The MPI of 50 per cent is quashed.Solicitors:Crown Solicitor, Auckland for Respondent