WILLIAMS v NEW ZEALAND POLICE [2017] NZHC 720

WILLIAMS v NEW ZEALAND POLICE [2017] NZHC 720 [12 April 2017]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYCRI-2017-419-000007[2017] NZHC 720BETWEEN TARAIPINE PAULA WILLIAMSAppellantAND NEW ZEALAND POLICERespondentHearing: 12 April 2017 (by AVL)Appearances: M James for AppellantS Gilbert for RespondentJudgment: 12 April 2017ORAL JUDGMENT OF VENNING JSolicitors: Crown Solicitor, HamiltonPublic Defence Service, Hamilton[1] Ms Williams pleaded guilty to one charge of assaulting a child. Judge J D Large sentenced her to three months' imprisonment.1 The Judge also imposed release conditions.[2] Ms Williams appeals. Ms James submits the sentence is manifestly excessive and that the appropriate and least restrictive sentence was a combination ofcommunity work and supervision or intensive supervision.Background facts[3] On 23 September 2016 the victim, who is the appellant's five year old son,was admitted to Waikato Hospital for routine surgery. The next morning the appellant was with the victim in his room. When she awoke she found the victim, who had been playing with her phone, no longer had it. Ms Williams began swearing and yelling at the child and took hold of him. He broke free but she took hold of him again and slapped him once to the left side of his face. She continued to swear at him. He suffered redness to his face but no lasting injury.The District Court judgment[4] The sentencing Judge adopted a starting point of four months' imprisonment and reduced that to three months to take account of the guilty plea. While the Judge would have been prepared to consider home detention there was no suitable address available. The Judge considered community work and/or supervision was an insufficient response to the offending. He also apparently considered it necessary tosend a message to the community that "if you smack a child you go to jail".The appeal[5] Ms James accepts that the starting point of four months' imprisonment cannot be said to be out of range. No issue is taken with the full discount of 25 per cent for Ms Williams' guilty plea. The sole issue in the appeal is whether an end sentence ofimprisonment was the least restrictive and most appropriate. Ms James referred to s 16 of the Sentencing Act and the desirability of keeping offenders in the1 New Zealand Police v Williams [2017] NZDC 3185.community as far as practicable and consummate with the safety of the community. She noted the other imperatives of s 16. Counsel also referred to the decision ofRawiri in which the Court of Appeal noted in relation to community service:2[18] this Court has recognised that a sentence of community servicehas a punitive aspect. It is intended by Parliament to be and is a very real and effective alternative to imprisonment which should not be regarded by the public as a minor or insignificant reaction. A sentence of community work is designed to achieve the principles of accountability, deterrence and denunciation traditionally associated with imprisonment while avoiding thedefault option inherent in that sentence and promoting a sense ofcommunity participation and awareness. The statutory hierarchy of sentencing options is a blunt affirmation that prison is a measure of last resort.[6] Ms James also referred to a number of authorities from this Court where community work had been imposed for assaults on young children including Hendry v New Zealand Police, and NI v Police.3 She also noted that in CJJ v Police a fine was considered appropriate for offending that involved a belt which, she submitted was more serious than the offending in the present case.4 She submitted that in the circumstances the current sentence of imprisonment was manifestly excessive.[7] The respondent's written submissions note that, given it is accepted that a starting point of imprisonment was appropriate, it would be unusual for the sentence to effectively drop two levels in the sentencing hierarchy from imprisonment to a community based sentence. They also noted that Ms Williams' personalcircumstances were relevant, namely her history of breaching sentences of supervision, her high risks in alcohol and drug abuse categories, and the fact that she appears to have low motivation to address these issues. She has also a past conviction for assault on a child.[8] As Ms James pointed out the defendants in Barber v Police and Hendry v Police5 had relevant previous convictions and J v Police and NI v Police involved more serious force yet non custodial sentences were imposed. But as the Court often2 R v Rawiri (2011) 25 CRNZ 254 (footnote omitted).3 Hendry v New Zealand Police [2012] NZHC 3581; and NI v Police [2013] NZHC 2925.4 CJJ v Police HC Christchurch CRI-2008-409-187, 18 December 2008.5 Barber v New Zealand Police [2014] NZHC 2057 and Henry v New Zealand Police, above n 3.says each case must turn on its own facts.6 The outcome of the appeals in NI v Police and Hendry were largely based on the personal mitigating factors of the defendants and the steps they had taken prior to sentencing to address the reasonsbehind the offending. In Ms Williams' case unfortunately there were no suchmitigating circumstances before the Judge. There was nothing in the material relating to Barber's case to suggest he would not have complied with sentences ofsupervision or community work whereas there is in the present case. In J v Policethe starting point was not imprisonment.7[9] In the present case home detention may have been appropriate as the Judge acknowledged. It is however unavailable on a practical basis. Unfortunately MsWilliams' prior history of non-compliance with community based sentences and lack of motivation to address the causes of her offending count against the submission a community based sentence could be appropriate in her case. There is also an unfortunate lack of remorse noted in the pre-sentence report. I note the recommendation in that report for a short term of imprisonment.[10] While there is force in counsel's criticism of Judge Large's comments that hefelt a sentence was required to "send a message to others in the community" theissue is whether the sentence of imprisonment was within the available range ofsentences. I do note that sentencing Judges should avoid making such statements.They create a perception of pre-determination.[11] However, I consider the end sentence of three months' imprisonment to be within range. For example, Hendry involved a similar level of harm. The Judge on appeal accepted that three months' imprisonment would have been appropriate although it was initially commuted to six weeks' home detention and then to community work on appeal in the particular circumstances of that case. It cannot be said the length of the term of imprisonment or the imposition of imprisonment is manifestly unjust in the particular circumstance of the offence and the offender in this case.6 J v Police HC Christchurch CRI-2008-409-187, 18 December 2008; and NI v Police, above n 3.7 J v Police, above n 6.[12] On my review of the relevant case law, in the circumstances of this particular case and offender, three months' imprisonment was available as a sentence, albeit not on the basis suggested by the Judge of sending a message.Result[13] The appeal is dismissed.[14] The appellant has been on bail pending the appeal. She is to surrender to the police at the police station at Hamilton by midday, tomorrow 13 April 2017.__________________________ Venning J