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Ngakiri Williams v/s The Queen


Company & Directors' Information:- G WILLIAMS AND CO PVT LTD [Strike Off] CIN = U51909WB1966PTC026880

Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 546 of 2018

    Decided On, 04 June 2019

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE COURTNEY
    By, THE HONOURABLE MR. JUSTICE LANG & THE HONOURABLE MR. JUSTICE WHATA

    For the Appellant: M.W. Ryan, Advocate. For the Respondent: M.S. Williams, Advocate.



Judgment Text

REASONS OF THE COURT

(Given by Whata J)

[1] Ngakiri Williams was sentenced to five years and nine months’ imprisonment on nine charges of burglary, six charges of dishonestly using a document, two charges of receiving stolen property and one representative charge of supplying a Class A controlled drug.[1] Judge Wharepouri imposed a minimum period of imprisonment (MPI) of 50 per cent and Ms Williams was ordered to pay reparation of $9,000 following her release.[2]

[2] Ms Williams appeals the sentence on the ground that it is manifestly excessive as a result of the Judge taking too high a starting point, failing to adequately consider totality, 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 of the occupants of those homes. Some of the items taken were treasured, including keepsakes of departed loved ones. She used the credit cards to make various purchases and withdraw cash. Her mode of operation involved targeting elderly persons in affluent suburbs and breaking into their homes, usually while they were outside gardening or engaged in some other household task. She would later call the occupants, pretending to be an employee of the bank of the stolen cards and trick them into divulging their PIN numbers.

[4] Ms Williams was not alone in this offending. Ms Tearani Pawa drove her to four of the victims’ addresses. Ms Mayana Roberts also accompanied Ms Williams and Ms Pawa on one occasion.

[5] Ms Williams absconded to Australia in late March or early April 2013 whilst on electronically-monitored (EM) bail awaiting trial for the charges related to this offending, and for supplying small quantities of methamphetamine.[3] She continued to offend there, receiving a sentence of imprisonment for near-identical offending of two years and eight months in 2015, before being released and held in a detention centre pending deportation.[4] She was deported to New Zealand and remanded in custody from June 2017, until she pleaded guilty to the abovementioned charges on 15 March 2018.

Sentencing

[6] The Judge fixed a starting point for the burglaries of six years.[5] He applied an uplift of 18 months for the dishonesty charges and a further 12 months for the drug offending.[6] A six-month uplift was then added to account for Ms Williams’ 30 prior burglary convictions.[7] This was, however, offset by a six-month discount for totality.[8] A nominal starting point of eight years and six months was therefore adopted. The Judge then reduced the sentence by 21 months for personal matters, including 10 months for remorse and reparation, nine months for hardship and two months for time spent on EM bail.[9] A discount of 15 per cent or 12 months for her guilty plea was then applied, resulting in an end sentence of five years and nine months, together with a 50 per cent MPI.[10]

[7] Ancillary orders were made remitting $9,000 of the $9,500 in fines outstanding but ordering $9,000 reparation in favour of the victims.[11]

The 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 argument before 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 parole within 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 sets the frame for the analysis of the MPI.

Analysis

Was the starting point too high?

[9] The six-year starting point for the burglary offending was high, but not outside the range available.[12] There were several aggravating factors. There were nine burglaries with nine directly-affected victims. The burglary offending was premeditated and most of it was predatory of vulnerable elderly people who were at home while the burglaries occurred. The risk of confrontation was therefore high and in fact occurred, on one occasion, through the victim being duped into believing that Ms Williams’ presence in the home was innocent. The emotional harm caused to the victims and the damage to their sense of well-being, safety and security in their own homes, would have been significant. A strong deterrent and denunciatory sentence 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 starting point closer to 30 months’ imprisonment.[13] The further uplift of 12 months for the drug offending involving up to 5 grams of methamphetamine could not be said to be out of range, based on Fatu — which identifies a range of two to four years for offending 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 error in this approach. That six-month discount was applied to adjust the nominal starting point 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 therefore applied to appropriately reflect the scale of offending in this case.

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 a number of offences, including burglary and dishonest use of a document.

(b) Ms Pawa was sentenced to two years’ imprisonment in relation to four burglaries 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 involved a single burglary incident and related deception. As to Ms Pawa, it is evident that she had a relatively minor role in four burglaries, namely as the driver. It also is tolerably clear Ms Williams was in charge and it was available to the Judge to take a much firmer line against her. We note also that Ms Pawa admitted her role in the offending from the outset. This would have likely attracted a substantially higher discount in terms 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 to determinate sentence of imprisonment

(1) If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.

(2) The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:

(a) holding the offender accountable for the harm done to the 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 committing the same or a similar offence:

(d) protecting the community from the offender.

...

[15] We agree that the offending, together with Ms Williams’ woeful record of similar offending, engages each of the purposes noted at subs (2). But we are not satisfied that, in the unusual circumstances of this case, an MPI is necessary to achieve them. The end sentence of five years and nine months’ imprisonment, (including an uplift of six months for other convictions), is a significant sentence, giving substantial vent to the purposes just mentioned.[16]

[16] Moreover, Ms Williams’ incarceration of 32 months for subsequent similar offending in Australia and then for 18 months pending deportation forms part of the context within which to assess whether an MPI is required to meet public expectations of accountability, deterrence, denunciation, and protection of the community. In this regard, without the MPI, the minimum term Ms Williams will be required to serve is 23 months or nearly two years’ imprisonment. This would mean Ms Williams will have been imprisoned continuously for 73 months or six years for the two sets of burglary and related offending, and the detention. While the sentence for the subsequent offending in Australia and detention do not respond to the present offending, we consider that the protection of the public has been adequately addressed by the combined period of continuous incarceration.

[17] A similar approach to the MPI analysis was taken by this Court in Sullivan v R, also in relation to an appeal against sentence for burglary offending.[17] In concluding that an MPI was manifestly excessive, the Court took into account the effect of an 11month sentence already served in respect of subsequent burglary offending.[18]

[18] The end sentence of five years and nine months’ imprisonment was not manifestly excessive. The imposition of an MPI was not, however, necessary, having regard to the 50 months of incarceration Ms Williams had already served for subsequent near-identical offending and then as a detainee pending deportation from Australia.

Result

[19] The appeal against sentence is allowed in part.

[20] The MPI of 50 per cent is quashed.

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[1] R v Williams [2018] NZDC 21286 at [28] [Sentencing notes].

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r />[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 characterised by the Crown. [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]. [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 [2005] NZCA 278; [2006] 2 NZLR 72 (CA) at [34]. [15] Sentencing notes, above n 1, at [20]. [16] While comparing end sentences is fraught, the Full Bench of the High Court in Senior v Police noted 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].
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