Andrade v The King
[2023] NZHC 75
•2 February 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2022-485-73
[2023] NZHC 75
BETWEEN DAVI DE AGUIAR ANDRADE
Appellant
AND
THE KING
Respondent
Hearing: 2 February 2023 Counsel:
J Owers and H M C Ginty for the Appellant H S Cunningham for the Respondent
Judgment:
2 February 2023
JUDGMENT OF GWYN J
Introduction
[1] The appellant, Davi De Aguiar Andrade appeals his conviction and sentence for two counts of blackmail.1
[2] On 31 January 2022 the New Zealand Police charged Mr Andrade with one count of threatening to kill2 and two charges of blackmail.3
[3] Mr Andrade committed both counts of blackmail against the same victim. The victim employed Mr Andrade’s wife. The victim and Mr Andrade’s wife had a sexual relationship between early 2019 and approximately September 2020. Mr Andrade admitted that his emotional response to the affair led him to seek “revenge” against the victim.
1 Crimes Act 1961, s 237(1).
2 Section 306. The maximum sentence is seven years’ imprisonment.
3 Section 237(1). Blackmail carries a maximum penalty of 14 years’ imprisonment: see s 238.
DE AGUIAR ANDRADE v R [2023] NZHC 75 [2 February 2023]
[4] The first charge of blackmail arose between 1 November 2020 and 8 November 2020 when Mr Andrade threatened to shoot the victim unless he deposited $50,000 into a New Zealand bank account.
[5] The second charge of blackmail arose on 12 September 2021 when Mr Andrade sent a photo of the victim’s house to the victim accompanied by a threatening message, including a threat to defame the victim unless he deposited $30,000 into a Brazilian bank account.
[6] In the Wellington District Court, Mr Andrade pleaded guilty to two charges of blackmail. The charge of threatening to kill was withdrawn in response to Mr Andrade’s guilty pleas.
[7] On 15 November 2022 Judge Kelly sentenced Mr Andrade to eight months’ home detention.4
[8] Mr Andrade now appeals his conviction and sentence.5 Mr Andrade seeks to rely upon four grounds of appeal. First, the District Court Judge failed to give sufficient weight to the mitigating factors of the offending including its gravity. Second, the Judge placed too much weight on the sentencing indication that Mr Andrade declined. Third, the Judge understated the consequences that flow from conviction. Finally, the Judge failed to give defence counsel a proper opportunity to make oral submissions about the Crown’s submissions and the probation report.
[9] At the District Court hearing, time constraints were imposed on the Judge in response to court staff taking industrial action. The appellant’s ground for appeal argument narrowed to the Judge overstating the gravity of his offending while understating the consequences the offending would have upon his life.
[10]Mr Andrade has no previous convictions.
4 R v Andrade [2022] NZDC 23785 at [64].
5 Pursuant to the Criminal Procedure Act, ss 229(1) and 250.
Procedural history
[11] On 4 May 2022, Judge I G Mill issued a sentencing indication.6 Judge Mill considered previous case law, the repetition of the offending and the seriousness of the threats, to arrive at a starting point of two years and nine months’ imprisonment.7
[12] The Judge considered that a 25 per cent deduction for guilty pleas and a 10 per cent deduction for good character and the offending being Mr Andrade’s first offence would be appropriate.8
[13] After deductions, Judge Mill indicated that Mr Andrade could receive 22 months’ imprisonment, although the Judge said he would enter a sentence of home detention if the probation report indicated this outcome was suitable.9
[14] On 12 May 2022 Mr Andrade declined the sentence indication.10 He subsequently pleaded guilty to both counts of blackmail.11
[15] At the sentencing hearing Mr Andrade applied for discharge without conviction.12 The Crown opposed his application.13 Judge J M Kelly applied the three-step test from Z v R14 in deciding the discharge without conviction application.15 This test examines the gravity of the offence; the consequences of conviction; and the proportionality of the consequences to the gravity of the offence.
[16] On 15 November 2022 Judge Kelly rejected the application for discharge without conviction.16 Judge Kelly agreed with Judge Mill’s assessment of the starting point. The aggravating factors were the threats accompanying Mr Andrade’s demands, the $80,000 sum demanded, the repeated demands, the demands were not successful
6 New Zealand Police v Andrade DC Wellington CRI-2022-085-000175, 4 May 2022.
7 At [9].
8 At [8]–[9].
9 At [9].
10 R v Andrade, above n 4, at [6].
11 At [7].
12 Pursuant to Sentencing Act 2002, s 106. R v Andrade, above n 4, at [2].
13 R v Andrade, above n 4, at [3].
14 Sentencing Act, s 107; and Z v R [2012] NZCA 599, [2013] NZAR 142 at [8].
15 R v Andrade, above n 4, at [27]–[53].
16 At [53].
and the impact of the offending on the victim.17 The mitigating factors were Mr Andrade’s absence of previous convictions, participation in a restorative justice conference, attendance at counselling and completion of voluntary work for 173 hours.18 Judge Kelly sentenced Mr Andrade to eight months’ home detention.19
[17] On 5 December 2022 Mr Andrade filed a notice of general appeal against conviction in respect of Judge Kelly’s decision to decline to discharge the appellant without conviction.
Submissions
For the appellant
[18] Mr Owers, for the appellant, submits that the Court should allow the appeal. The appellant asks the Court to set aside his conviction and sentence and discharge him without conviction.
[19] The appellant submits the District Court Judge did not have sufficient regard to the appellant’s circumstances as a new immigrant, anxious to establish a life here in New Zealand and vulnerable to exploitation. The District Court Judge also understated the immigration consequences risked by conviction. The immigration risk relates to potential liability to deportation and issues entering Canada to visit family members who reside there. The appellant’s daughter was born in New Zealand. Disrupting the family would risk separating the appellant from his family and financial problems.
[20] The appellant has built a life in New Zealand. The appellant is an active member of the local community. He has contributed 173 hours to the local branch of a charity and participates in his church.
[21] The appellant submits that despite the serious nature of his convictions, case law demonstrates examples of defendants who have also faced serious charges being
17 At [38]–[39].
18 At [40].
19 At [64].
discharged without conviction.20 Mr Owers says that is particularly so where the potential consequences of a conviction will impact, not just on the individual, but also on his or her family members, as here.
[22] The appellant demonstrates remorse for the threats he made against the victim. He participated in a restorative justice conference and offered the victim financial reparation as compensation for the harm, although the victim declined this offer. He has also completed a significant period of community service.
[23] The appellant notes that he is a first-time offender and has made full admissions to his offending.
For the respondent
[24] Mr Cunningham, for the respondent, submits that the Court should dismiss the appeal.
[25] Mr Cunningham submits the District Court correctly applied the three-step test for discharge without convictions applications.
[26] With respect to the gravity of the offence, the respondent referred the Court to R v Warne which adopted a description of blackmail as an “insidious and abhorrent” crime.21 The appellant made repeated threats, with approximately one year in between the threats which led to the blackmail charges, and demanded $80,000 in total. The respondent submits that the appellant’s personal circumstances are not mitigating circumstances, although they may provide an explanation for the appellant’s behaviour. The District Court Judge correctly disregarded these personal factors.
[27] The respondent submits the Judge correctly weighed the consequences of the conviction. The Judge found that Immigration New Zealand was likely to review the status of the appellant’s visa in light of the offending. No finding beyond this was necessary. Mr Cunningham also noted that it is the offending itself, not the conviction,
20 The appellant cited R v Taulapapa [2018] NZCA 414; R v Durrant [2020] NZHC 1019; R v I
[2022] NZHC 2288; R v T [2021] NZHC 64; and R v X [2015] NZHC 1244.
21 R v Warne [2007] NZCA 353 at [10].
that gives rise to the possible immigration consequences, although he acknowledges that the conviction may increase that risk.
[28] On the matter of proportionality, the respondent submits the Judge was correct to find the potential consequences of the appellant’s offending, including the risk of deportation, were not out of proportion to the gravity of the blackmail offences.
[29] Accordingly the respondent submits the Judge was correct to find that there was no risk of a miscarriage of justice.
Relevant law
[30]There is no tariff case for blackmail sentencing.
[31] The appeal is against the District Court Judge’s exercise of her judicial discretion.
[32] The Court is limited to allowing appeals against conviction when the decision involves a substantial miscarriage of justice. Section 232 of the Criminal Procedure Act 2011 provides that the first appeal court must allow the appeal if satisfied that, in any case, a miscarriage of justice has occurred for any reason.
[33] A miscarriage of justice will be evident where an error, irregularity, or occurrence in relation to or affecting the trial has created a real risk that the outcome of the trial was affected.22 Justice Katz considered the meaning of a “real risk” in Nishant v Police:23
A “real risk” that the outcome of the trial was affected will arise if there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong. Irregularities which “plainly could not, either singly or collectively, have affected the result of the trial” are not miscarriages of justice and the appellate court must disregard them. However, a finding that there has been an unfair trial in terms of s 232(4)(b) means that it is unnecessary to consider whether this may have affected the outcome of the trial because s 232(4)(b) assumes that if an accused person has not received a fair trial then any resulting conviction must be set aside.
22 Criminal Procedure Act, s 232(4).
23 Nishant v Police [2019] NZHC 18 at [15] (footnotes omitted).
[34] The Supreme Court in Sena v Police confirmed the onus is on the appellant to show an error has been made.24 Further, the appellate court is to bear in mind any advantages a trial judge may have had, particularly that they were able to hear and assess evidence in person. The Court also noted, regarding appellate assessment of judges’ reasons:25
… imperfection of expression is practically unavoidable, particularly in oral judgments. Accordingly, appellate courts should assess reasons contextually, in light of the evidence given and allowing for the burden for judges of balancing the need for prompt determination of criminal cases with other workload requirements. The adequacy (or not) of reasons must be assessed in light of the type of case (including seriousness) and the issues involved. What is required are reasons which address the substance of the case advanced by the losing party. Depending on the circumstances, this can be achieved without necessarily referring in detail (or sometimes at all) to every issue or argument which that party has advanced.
[35] The alleged error made by the District Court Judge concerns application of ss 106 and 107 of the Sentencing Act 2002. Section 106 provides:
106 Discharge without conviction
(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2)A discharge under this section is deemed to be an acquittal.
(3)A court discharging an offender under this section may—
(a)make an order for payment of costs or the restitution of any property; or
(b)make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—
(i)loss of, or damage to, property; or
(ii)emotional harm; or
(iii)loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:
24 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].
25 At [37].
(c)make any order that the court is required to make on conviction.
(3A)Sections 32 to 38A apply, with any necessary modifications, to an order under subsection (3)(b) as they apply to a sentence of reparation.
(4)[Repealed]
(5)Despite subsection (3)(b), the court must not order the payment of compensation in respect of any consequential loss or damage described in subsection (3)(b)(iii) for which compensation has been, or is to be, paid under the Accident Compensation Act 2001.
[36] Under s 106, the Court can discharge a defendant who has been found guilty, or who has pleaded guilty, without entering a conviction. The Court will discharge a defendant without conviction when it finds appropriate having applied the three-step test that considers the gravity of the offending, the consequences of entering a conviction, and the proportionality of those consequences to the gravity of the offending.26
[37] In Z (CA447/2102) v R, the Court of Appeal clarified that in applying the three- step test, the Court “should consider all of the aggravating and mitigating factors relating to the offending and the offender” at the first step, when assessing the gravity of the offending.27
[38]Section 107 provides:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[39] Section 107 is generally a prerequisite condition to orders made under s 106.28 The Court is only able to discharge offenders without conviction when the offending is of a disproportionately lower gravity than the consequences that entering a conviction would have. In Blythe v R, the Court of Appeal said “it will be a rare case where an offender has passed through the s 107 ‘gateway’, but is then not discharged
26 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16].
27 Z v R [2012] NZCA 599, [2013] NZAR 142.
28 See Blythe v R [2011] 2 NZLR 620.
under s 106(1). Nevertheless, there is a discretion in those rare cases in light of the statutory wording.”29
Analysis
[40] The appellant has not explicitly submitted that a miscarriage of justice occurred when the District Court Judge convicted the appellant of the two counts of blackmail and sentenced him to eight months’ home detention.
[41] The appellant’s argument in substance amounts to an allegation that there was a miscarriage of justice given he alleges the District Court Judge made an error in applying the test for the appellant’s application for discharge without conviction.
[42] I am not persuaded by the appellant’s argument that the Judge erred in her application of the s 106 test. It is clear that the Judge did have regard to the gravity of the offending (including the relevant mitigating and aggravating factors, as required by Z v R), the consequences of the conviction and the proportionality of those consequences. The Judge found that the appellant being deported was not an inevitable consequence of the Court entering a conviction, and, in any event, it may be more appropriate for the consequences of a conviction to be resolved by Immigration New Zealand, rather than the Court. The Judge found the appellant had no tangible plans to travel to Canada to visit his family there, and, if he made such plans, he would be able to enter the country if he satisfied the immigration criteria given convictions do not bar entry into Canada. The Judge concluded that these consequences were in proportion to the gravity of the appellant’s offending.
[43] The appellant made serious threats against the victim, including the statement “You will be killed by one of our representatives. We are going to send one of our killers, and if you leave the city we will know.” The appellant repeated his threatening conduct one year later, accompanying both threats with a demand to pay $50,000 and
$30,000 respectively. His conduct caused the victim significant emotional distress and fear.
29 At [13].
[44] The appellant has since reflected on his conduct and attempted to make amends, particularly through the restorative justice conference in which the victim also participated, as well as extensive community work. I acknowledge that Mr Andrade’s commitment to making amends is sincere and he has acted on that commitment in tangible ways.
[45] Although the offending will have consequences for the appellant, it is not the Court’s role to rule upon whether or not deportation is inevitable.30 The risk of deportation arises from the conduct involved, not the conviction per se, although I acknowledge that a conviction increases that risk.31
[46] Blackmail is an offence with a maximum penalty of 14 years’ imprisonment. The Judge found the appellant’s blackmail offending to be of “moderate” severity.32 For his two convictions of moderate severity, the sentence of eight months’ home detention is not disproportionate sentence to the offending.
[47] The Judge appropriately and carefully weighed all relevant considerations under each of the three steps of the test. Her Honour was correct in her decision to dismiss the appellant’s application for discharge without conviction.
[48] The appellant has not discharged the significant burden of showing that a miscarriage of justice occurred, as would be necessary to allow this appeal against conviction and sentence. Having said that, I wish to record that Mr Andrade has plainly moved on from what was a difficult time in his life. He has fully acknowledged his offending, taking all practical steps to make amends to the victim – I do not underestimate the significance of his participation in the restorative justice process. Mr Andrade has undertaken extensive voluntary community work. He has rebuilt the relationship with his wife and daughter and the evidence before me is that he and his wife are both in employment and they have settled accommodation. They are committed to building a family life together in New Zealand. While ultimately
30 Sok v R [2021] NZCA 252, (2021) 29 CRNZ 962 at [50].
31 At [51].
32 R v Andrade, above n 4, at [41].
Mr Andrade’s immigration status will be a matter for Immigration New Zealand, those are factors that it will no doubt weigh in its assessment.
Conclusion
[49] Mr Andrade’s appeal against his conviction on two counts of blackmail and sentence of eight months’ home detention is dismissed. The home detention conditions remain the same.
Gwyn J
Solicitors:
Public Defence Service, Wellington Crown Law, Wellington