Rayon Mohi Williams v R

• Jurisdiction: New Zealand
• Judge: Wylie J
• Judgment Date: 23 July 2021
• Neutral Citation: [2021] NZCA 333
• Docket Number: CA338/2021
• Court: Court of Appeal

Between

Rayon Mohi Williams

Appellant

and

The Queen

Respondent

[2021] NZCA 333

Court:

Miller, Thomas and Wylie JJ

CA338/2021

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Sentence — appeal against a sentence of two years and one month's imprisonment imposed for charges of money laundering — appropriate starting points — discount for remorse overlooked — sentencing principles — whether sentencing Judges were obliged to adopted starting points advocated by counsel — the Crown's role at sentencing — Criminal Procedure Rules 2012 — Criminal Procedure Act 2011 — Sentencing Act 2002

Counsel:

D A Ewen for Appellant

J N Hamilton for Respondent

• A The appeal is allowed.

• B The sentence of two years and one month's imprisonment imposed by the Judge is vacated. A sentence of 10 months' home detention is substituted therefore.

• C The sentence of home detention is subject to the standard conditions set out in s 80C(2) of the Sentencing Act 2002 and to the following special conditions imposed under s 80D of the Act:

  • (i) Mr Williams is to travel directly from the prison at which he is currently being held to the address specified in the Provision of Advice to Courts Report dated 28 May 2021, and there await the arrival of a probation officer and the monitoring company representative.

  • (ii) Mr Williams is to reside at the address specified in the Provision of Advice to Courts Report dated 28 May 2021 during the term of his sentence, and is not to move to any new residential address without the prior written approval of a probation officer.

  • (iii) Mr Williams is not to possess, consume or use any alcohol or drugs not prescribed to him.

  • (iv) Mr Williams is to attend an assessment for any programme or counselling to address his offending as directed by a probation officer, and is to attend and complete such counselling, treatment or programme as is recommended by the assessment and as is directed by and to the satisfaction of a probation officer.

  • (v) Mr Williams is not to associate with or contact any of his co-offenders without the prior written approval of a probation officer.

• D The standard post-detention conditions under s 80O of the Act are imposed together with the following special post-detention conditions under s 80N:

  • (i) Mr Williams is to attend an assessment for any programme or counselling to address his offending as directed by a probation officer, and is to attend and complete such counselling, treatment or programme as is recommended by the assessment and as is directed by and to the satisfaction of a probation officer;

  • (ii) Mr Williams is not to associate with or contact any of his co-offenders without the prior approval of a probation officer.

  These conditions are to remain in place for a period of 12 months after the expiry of the sentence of home detention.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Wylie J)

Introduction

1 On 8 June 2021, the appellant, Rayon Williams, was sentenced to two years and one month's imprisonment by Jagose J in the High Court at Auckland 1 on two charges — one representative and the other specific — of money laundering. 2

1 Mr Williams appeals the sentence. He argues that the starting point adopted by the Judge was too high and that the Judge intended but omitted to give him a discount for remorse.

Factual background

2 We largely adopt the Judge's factual summary. He noted as follows:

[4] On 20 January 2020, the Waikato Police Organised Crime Squad began an investigation into the manufacture and supply of methamphetamine in the Waikato and Auckland regions. That investigation uncovered what police characterise as a “highly organised and lucrative drug dealing business”.

[5] You are one of 29 people arrested in connection with the investigation. You are said to have been in the “third tier” of that group, not having a leading role in its organisation, but facilitative of its operation. You had access to “substantial amounts” of cash. You used a “very expensive” satellite telephone that prevented your communications from being intercepted. You are said to have had a financial interest in the drug offending. You worked closely with the group's leadership, in particular discussing and demonstrating the purchase and balance of cryptocurrency accounts.

[6] Your own cryptocurrency wallet has not been located. Any amounts of cryptocurrency purchased or held by you cannot be identified. You last were employed in January 2019. You have had no legitimate source of income since then. Instead, you profited from the group's methamphetamine supply business. Your bank accounts disclose numerous cash deposits of between $150 and $1,700, each made by an unknown individual or individuals.

[7] Your apparent transfer of $5,000 in cryptocurrency to an associate's wallet, to demonstrate to yet another associate how cryptocurrency transactions work, gave rise to the representative charge of money laundering. On 10 June last year, you bought a Harley Davidson motorcycle from an unknown person in Tauranga. You paid $26,750 in cash. You registered the motorcycle under a fictious name. These facts gave rise to the specific charge of money laundering.

3 According to the summary of facts on which Mr Williams pleaded guilty, Mr Williams worked closely with Alan McQuade. The police say that Mr McQuade was the central figure involved in the criminal enterprise. Mr Williams, by his plea, has accepted this.

Sentencing decision

4 The Judge recorded the Crown's acknowledgement that a sentence of home detention might be appropriate and noted that Mr Williams's then counsel had made the same recommendation. He nevertheless observed that he was not bound by their views and that he had to come to his own decision.

5 After considering relevant materials and discussing the approach he was taking to the sentencing, the Judge addressed the starting point for Mr Williams's offending. He referred to the applicable purposes and principles of sentencing and observed that there is no tariff decision for the offence of money laundering. He referred to two decisions of this Court. In one, the Court upheld a starting point sentence of three and a half to four years' imprisonment and an end sentence of two years and three months' imprisonment imposed on an offender involved in laundering profits from a large-scale methamphetamine-related criminal enterprise. 3 In the other, this Court upheld a starting point sentence of five years and six months' imprisonment for laundering approximately $700,000 derived from methamphetamine-related offending over an 18 month period. 4

6 The Judge considered that Mr Williams had taken a “facilitative role” in the methamphetamine-related offending in issue and that this was “… a significant role in the overall operation”. 5 He considered that Mr Williams:

The Judge acknowledged that there was nothing to indicate how much money was laundered by Mr Williams. He was however satisfied, from the sums Mr Williams had received and disbursed and from the steps that Mr Williams had taken to conceal his activities, that Mr Williams's offending was not insignificant. He placed Mr Williams's offending in band 2 identified by this Court in Zhang v R, requiring a starting point sentence of two to nine years' imprisonment. 6 The Judge observed that this was consistent with other serious drug related money laundering sentences in the High Court. 7 He considered that Mr Williams' offending was aggravated by personal gain and by the premeditation involved in making the cryptocurrency arrangements and that both were connected to the very serious principal offending. He did not consider that Mr Williams's offending had any mitigating features. He considered that a starting point in the range of three to four years' imprisonment was available and he adopted a starting point of three years and three months' imprisonment.

• (a) had performed an operational function;

• (b) had directed others;

• (c) was motivated only by financial considerations;

• (d) obtained a commercial profit; and

• (e) had some awareness and understanding of the scale of the operation.

7 The Judge then turned to consider factors personal to Mr Williams. He did not consider that any uplift to the starting point sentence was required. He acknowledged that Mr Williams had expressed remorse. He did not consider that any discount was available for previous good character, but that a discount was available for personal and cultural factors that appeared to have led to Mr Williams's offending. He also noted that Mr Williams had been on electronically monitored (EM) bail without incident for a little over 10 months, and that he had entered guilty pleas. The Judge allowed Mr Williams a 20 per cent discount for his pleas and a five per cent discount

to recognise the role his traumatised childhood may have played in his subsequent life choices. He also allowed a discount of four months for the time that Mr Williams had spent on EM bail. He then rounded the resulting calculation down to reach the end sentence of two years and one month's imprisonment

The appeal

8 The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011. This Court must allow the appeal if it is satisfied that, for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should be imposed. 8 In any other case, the appeal must be dismissed.

9 This Court does not start afresh, nor simply substitute its own opinion for that of the original sentencer. Rather, there is an obligation on Mr Williams as the appellant to show that there was a material error made by the sentencing Judge. 9 This Court will not intervene where the sentence imposed was within a range that can be properly justified by accepted sentencing principles. 10

Submissions

10 Mr Ewen, appearing for Mr Williams, argued that the...