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 The charge of threatening to kill was withdrawn in response to Mr Andrade’s guilty pleas.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…
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- Andrade v The King [2023] NZHC 75
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- [2023] NZHC 75
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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