Andrade v The King - [2023] NZHC 75

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 The charge of threatening to kill was withdrawn in response to Mr Andrade’s guilty pleas.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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Andrade v The King

Details

AGLC: Andrade v The King [2023] NZHC 75
Case: [2023] NZHC 75
Decision Date: 2 February 2023

CaseChat Overview and Summary

In Andrade v The King, Davi De Aguiar Andrade, the appellant, contested his conviction and sentence for two counts of blackmail. The Wellington District Court found the appellant guilty and sentenced him to eight months' home detention. The appellant's grounds for appeal included the District Court's perceived overemphasis on the gravity of the offending while understating the consequences of a conviction on his life. Specifically, he argued that the court failed to adequately consider the potential immigration consequences of his conviction, including the risk of deportation and difficulties entering Canada to visit family. The respondent submitted that the District Court correctly applied the three-step test for discharge without conviction applications and that the appellant's personal circumstances did not mitigate his offending.

The High Court found that the District Court Judge had appropriately weighed all relevant considerations under each of the three steps of the test. The court concluded that the appellant's blackmail offending was of "moderate" severity, and the sentence of eight months' home detention was not a disproportionate sentence to the offending. The court also found that the risk of deportation arose from the conduct involved, not the conviction per se, and that 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. The court dismissed the appellant's appeal against his conviction and sentence.

Orders