Arthur v Police
[2018] NZHC 279
•28 February 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2017-409-000161
[2018] NZHC 279
BETWEEN RUSSELL COLIN ARTHUR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 22 February 2018 Appearances:
A McCormick for the Appellant C Bernhardt for the Respondent
Judgment:
28 February 2018
JUDGMENT OF DUNNINGHAM J
Introduction
[1] On 13 December 2017, Judge Callaghan sentenced the appellant to 21 months’ imprisonment after he pleaded guilty to one charge of blackmail.1
[2]The appellant appeals this sentence on two grounds:
(a)the Judge erred in his assessment of the appellant’s culpability, thus rendering the starting point too high; and
(b)the Judge erred by not sentencing the appellant to home detention in light of his actual culpability and the identified mitigating factors.
1 New Zealand Police v Arthur [2017] NZDC 29542.
ARTHUR v NEW ZEALAND POLICE [2018] NZHC 279 [28 February 2018]
Background
[3] In mid-2015 a business arrangement between the victim and an associate, Mr Le Breton, soured. This resulted in the initiation of civil court action by both parties.
[4] On 28 January 2017, the victim was on his bus at a car show. The appellant boarded the victim’s bus, saying:
I’m the guy who saved your life, you’re fucking with family mate, we are the [referring to the gang] family, we are worldwide, nobody fucks with us… the Le Bretons are our family.
[5] At the same time a number of patched gang members were moving nearby around the car show. The appellant told the victim that unless he answered a phone call the following day at midday, the appellant would disclose confidential documents to numerous political, governmental and media sources. The victim is the owner and director of several construction-related businesses around New Zealand. The disclosures would allege that the victim had been intentionally misrepresenting his building products and was placing the safety of members of the public at risk because of that misrepresentation.
[6] Prior to leaving the bus, the appellant told the victim that unless he answered the phone the next day, “we will destroy you and your company completely”.
[7] The following day at midday, the appellant phoned the victim. The appellant demanded an apology from the victim to Mr Le Breton and his wife, as well as withdrawal of all civil court action by the victim against the Le Bretons. The appellant clearly outlined that a failure to comply would result in disclosure of business information alleging misrepresentation of the building products.
[8] Over the following weeks, the victim received a number of threatening text messages from the same telephone number which the appellant called from. At first these text messages were attributed to the appellant, but the appellant disputed this and the Crown acknowledged it was not able to prove the appellant was responsible for
them. The victim and members of his family also received envelopes with confidential documents related to the building products alleged to be misrepresented.
[9] The victim continued to receive threatening text messages until he left the country with his family in mid-February 2017, fearing violence against them.
[10] On 10 February 2017, the appellant phoned the Auckland-based operations manager for one of the victim’s companies. The appellant attempted to persuade the manager to join a legal action against the victim, saying he had the co-operation of other staff members and had secured immunity from prosecution for them. This was untrue.
District Court decision
[11] At the time the appellant pleaded guilty to the charge he sought a disputed facts hearing as he denied having sent any text messages to the victim, but accepted that he had spoken to the victim in person at the Rangiora car show, had telephoned him, and had telephoned an Auckland-based employee of the victim’s business. The Crown conceded that it could not prove the appellant had sent the offending text messages, nor that he had had any other contact with the victim or members of his family, and the Judge proceeded on the basis of a summary of facts which deleted all allegations except the conduct admitted by the appellant. The Judge noted that despite the appellant being the only person charged so far in relation to this matter, it appeared that others were involved and the appellant’s role was somewhat limited.
[12] The Judge recognised the severity of punishment that blackmail usually attracts, and that imprisonment has traditionally been the only available sentence. He cited cases that recognised that prison was now not inevitable but that still suggested there was a presumption towards a sentence of imprisonment.2
[13] In setting the starting point, Judge Callaghan noted the aggravating features of the offending including the use of gang members to intimidate the victim, and the multiple occasions of blackmail, showing a degree of premeditation. His Honour
2 R v Takao HC Rotorua CRI-2004-087-2227, 29 April 2005 and R v Williams [2012] NZHC 506.
recognised the effect on the victim, as well as the threat involving interference with civil court processes. In mitigation, the Judge accepted that the appellant was acting under a form of duress based on an indebtedness to the gang. His Honour weighed up the fact that the appellant could not be held exclusively responsible for the offending and effect on the victim, but referred to him as “part of the cog of this plan of blackmail” and stated that his “involvement can only be viewed as quite integral overall”.3 His Honour confidently set a starting point of two and a half years, indeed stating that was “the very minimum in respect of offending such as this”.4
[14] Regarding personal mitigating features, the Judge made an allowance for the appellant’s wife’s ill health, and the fact that the appellant’s imprisonment would be a real hardship on her. The Judge also noted the appellant’s chronic back injury, lack of previous convictions in the last 30 years, and commitments to his family business. His Honour therefore reduced the starting point to 27 months’ imprisonment.
[15] Finally, the Judge gave a 20 percent discount for the appellant’s later-stage guilty plea. This brought the final sentence to one of 21 months’ imprisonment.
[16] In considering whether to convert this sentence to one of home detention, the Judge decided that doing so would not meet the accountability and deterrence requirements of the Sentencing Act 2002 and declined to do so.
Principles on appeal
[17] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.5 As the Court of Appeal stated in Tutakangahau v R, “an appellate court will not intervene where the sentence is within the range that can be properly be justified by accepted sentencing principles”.6 It is only appropriate for this court to
3 At [12].
4 At [23].
5 Criminal Procedure Act 2011, ss 250(2) and 250(3).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7
Submissions
Appellant’s submissions
[18] The appellant submits that the Judge erred in his assessment of the appellant’s culpability despite the fact that it had been agreed that his offending related to just the three identified incidents. The particular observation that the appellant takes issue with is the Judge’s comment at [21] of the sentencing notes, that Mr Arthur was “a significant cog in the blackmail strategy and clearly knew what was going on”. This conclusion was relied upon to set a starting point of 30 months’ imprisonment. The appellant submits that this assessment was wrong as there was no evidence to suggest that Mr Arthur knew anything of the extent of the blackmail strategy against the victim.
[19] He then also addresses the features identified in R v Takao,8 as relevant to sentencing for blackmail, and submits that:
(a)no physical harm was threatened;
(b)no particular sum of money was demanded; and
(c)the element of premeditation was not easy to assess given it was accepted that the appellant was a “small cog in a far larger wheel” that was pressuring the victim.
Again he submits these factors should have been reflected in a lower starting point.
[20] In relation to the second ground of appeal, which is the failure to grant home detention, the appellant relies on his submissions as to the Judge’s erroneous
7 Ripia v R [2011] NZCA 101 at [15].
8 R v Takao, above n 2, at [22].
assessment of his culpability. He also asserts that the Judge gave insufficient weight to:
(a)Mr Arthur’s wife’s mental health condition and his own physical limitations as a result of a back condition;
(b)Mr Arthur’s lack of convictions in the past 30 years; and
(c)Mr Arthur’s business interests which have now failed since his imprisonment.9
[21] In particular, counsel notes that at sentencing the Judge did not have detailed information regarding the appellant’s wife’s mental health. Detailed information is now available via a copy of her Canterbury District Health Board file, which the appellant wishes to adduce as fresh evidence. She was diagnosed with a major depressive episode in 2015 and has an alcohol dependency. Her most recent interaction with Psychiatric Services was on 8 January 2018, reporting incidental suicidal ideations. Her file notes that this criminal proceeding and the risk of her husband going to prison has been a significant recent stressor in her life. Counsel submits that had this information been before the Judge, “it would have served to further emphasise the hardship that His Honour did identify as being real”.
[22] Given the clear authority that imprisonment is no longer an inevitable sentence for blackmail10 and in light of this further evidence, the appellant submits a sentence of home detention was available to the Judge and would have been the most appropriate, and least restrictive outcome for the appellant.
Respondent’s submission
[23] In relation to the starting point, the respondent submits that the Judge was correct in adopting a starting point of two and a half years’ imprisonment.
9 However, the paragraph in the Judge’s sentencing notes referred to in support of this proposition do not go so far as to say they have failed, and the information on file suggests simply they are struggling.
10 R v Hulme [2012] NZHC 1766, R v Lal HC Auckland CRI 2009-004-5813, 20 April 2011, and
R v Verma [2012] NZHC 3160.
[24] Using the case of R v Rewi as a comparison, the respondent submits that the starting point adopted of two and a half years was, in fact, relatively lenient.11 In Rewi, the defendant entered the victim’s business and demanded $1500, made threats to the victim’s business and, in later communications, to his home and family. In that case Collins J adopted a starting point of three years’ imprisonment. Here the respondent argues that this case is arguably more serious than Rewi, in that one of the threats required the victim to discontinue a civil case claiming $2 million. In addition, the appellant was involved in a concerted operation rather than being a single offender, and the demand involved an attempt to interfere with the judicial process by requiring the cessation of proceedings through threats, which should be seen as a significantly aggravating feature. The respondent also submits that the Judge’s assessment of the appellant as “a significant cog in the blackmail strategy”, who “clearly knew what was going on”, was available to him on the agreed summary of facts and thus the starting point was within the available range.
[25] In terms of whether the sentence should have been converted to one of home detention, the respondent submits that the Judge was justified in his refusal. While the Courts have moved away from imposing a sentence of imprisonment for any case of blackmail, the respondent nevertheless submits that the appellant would need to show “circumstances out of the ordinary in order for home detention to be considered”, and that was not the case here.
[26] Counsel does, however, recognise that the appellant’s personal circumstances make the choice between imprisonment and home detention a finely balanced one. That said, counsel submits that the weight Judge Callaghan gave a factor at sentencing is not a basis to challenge the exercise of his discretion in deciding between imprisonment and home detention.12 As the Court of Appeal stated in R v D:13
[66] In a case like this, the sentencing Judge is required to form a judgment on whether imprisonment is necessary or home detention can respond adequately to the seriousness of the offending. The closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other. In such cases, the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried
11 R v Rewi [2012] NZHC 1410.
12 McConnel v R [2013] NZCA 303; Doolan v R [2011] NZCA 542.
13 R v D [2008] NZCA 254.
assumes greater weight. He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another. The broader the base of similar offending a particular Judge sees, the more likely it is that the chosen sentencing response will be appropriate.
[27] Accordingly, the respondent submits that the sentence imposed by the Judge was appropriate and the appeal should be dismissed.
Analysis
Was the starting point too high?
[28] The appellant’s first ground of appeal focuses on whether the Judge was entitled to describe the appellant as a “significant cog in the blackmail strategy” and sentence on this basis, given the concessions made by the Crown and the modification of the summary of facts.
[29] I consider he was. When the sentencing notes are read as a whole, it is clear that the Judge’s statement that the appellant “knew what was going on” related to the fact the appellant knew that the people who were putting pressure on him to contact the victim, were endeavouring to put unlawful pressure on the victim and to stop him pursuing the claim against Mr Le Breton. This is captured in the Judge’s statement at
[10] where he says that the appellant “did not become involved in the text messages or anything else but you knew very well what was going on and that the supporters of Mr Le Breton were wanting to take substantial steps to affect the victim’s business. So you knew that this was more than just an idle threat”. This conclusion was clearly available on the amended summary of facts and correctly formed the basis for assessing the appellant’s culpability.
[30] In all other respects, I consider the starting point set was well within range. It fairly reflected the factors considered in Takao, including the repetition of the threats by the appellant, the potentially significant financial consequences for the victim of complying with the demand (being the cessation of civil proceedings claiming a significant sum of money), and the fact it had a serious effect on the victim and his family, such that he would contemplate, and actually did, leave the country.
[31] In cases where money is demanded, and where there have been repeated threats and those threats include violence, the Courts have adopted a starting point of around three years.14 While the present case did not involve threats of violence (at least not by the appellant) the threats were to wreck financial havoc on the appellant and his family, the repetition of which must have indicated to the victim the seriousness of the threat. In all the circumstances, I consider that the starting point of two years six months’ imprisonment for making such threats on three occasions is entirely appropriate.
[32] I therefore reject the first ground of appeal that culpability was wrongly assessed and that the starting point was too high.
Was the Judge wrong to reject a sentence of home detention?
[33] The second ground of appeal relates to the refusal to grant home detention despite that being an available option. However, as the Court of Appeal identified in James v R:15
…an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the Judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong?
[34] In this case, the Judge expressly referred to the purpose and principles of the Sentencing Act when concluding that home detention was not appropriate and that suggests the appeal is simply challenging the merits of that decision. However, it is not clear to me that the Judge exercised his discretion on the understanding that there was no presumption that imprisonment was required to denounce and deter the crime of blackmail. I say this because early in the sentencing exercise, the Judge cited the decision in R v Patterson, which emphasised the seriousness with which the Courts view blackmail and that it generally attracts a sentence of imprisonment,16 and in Takao, where it was said that “only exceptionally is emphasis able to be given also to
14 R v Rewi, above n 11; R v Wilkie HC Wellington CRI-2004-078-506, 17 December 2004 (affirmed by CA 6/05, 27 April 2005); R v Thompson [2012] NZHC 798 and R v Zheng [2012] NZHC 1102.
15 James v R [2010] NZCA 206, (2010) 24 NZTC 24, 271 at [17].
16 R v Patterson CA228/96, 22 August 1996.
a sentence which rehabilitates and reintegrates” but otherwise “nothing less than imprisonment will answer it”.17
[35] Nowhere is reference made to the fact that those views have been expressly departed from in subsequent decisions. For example, in R v Thomas, it was made clear that in light of the Sentencing Act 2002, a presumption in favour of imprisonment for blackmail does not exist.18 Instead, the Court of Appeal in Thomas said that in blackmail cases “it is incumbent on the sentencing judge to consider whether a community-based sentence could achieve the purposes of sentencing” instead of imprisonment.19 That view was reiterated in Sale v New Zealand Police,20 where Ellis J allowed an appeal against a refusal to grant home detention to the appellants when the first instance judge relied on the views articulated in Takao to impose a prison sentence and not home detention. Ellis J held that in light of s 16 of the Sentencing Act, the sentencing Judge must consider whether a community-based sentence would achieve the relevant purposes of sentencing, and any choice between two genuinely available sentencing options must be guided by the requirement to impose the least restrictive outcome.21
[36] In this case, while the Judge referred to the purposes and principles of the Sentencing Act, it is not clear to me whether he had full regard to s 16 when he rejected a sentence of home detention.
[37] However, I do not need to decide that conclusively because I consider the appeal should be allowed on other grounds. Mr McCormick sought to introduce further and updated evidence regarding Mr Arthur’s wife’s mental health. I was provided with her full medical records, which outline significant mental health issues, both prior to and following sentencing. In particular, her psychiatric assessment on 8 January 2018 reports her seeking medical attention having presented at the Emergency Department. It says she is “struggling with her moods since her husband’s imprisonment” and with the fact that their family business is now struggling. It
17 R v Takao, above n 2, at [20].
18 R v Thomas CA 138/05, 6 July 2005.
19 At [9].
20 Sale v New Zealand Police [2014] NZHC 1933.
21 Sale v New Zealand Police, above n 20 at [25].
appears, too, she has relapsed into alcohol dependence as a consequence of the “recent social stressors”. This distinct downturn in her mental health as a consequence of her husband’s imprisonment was also reflected in a letter provided to the Court from her clinical psychologist, Terri Donovan.
[38] I accept the respondent’s submission that the appellant’s wife’s mental health issues were not ignored in sentencing. The Judge was clearly alive to them, and the Canterbury District Health Board records which are now available to confirm the position at the time of sentencing are not strictly “fresh evidence” and are not admitted. However, I do consider the records which update the position since sentencing, and outline the downturn in her mental health since her husband’s imprisonment, constitute fresh evidence which should be allowed on appeal and taken into account in deciding whether home detention is appropriate. I accept this evidence meets the test of being sufficiently fresh and sufficiently credible to be admitted and considered.22
[39] Having identified a concern that the Judge may have approached sentencing on the basis there was a presumption as to imprisonment, but more importantly, accepting the further evidence as to the recent deterioration in Mrs Arthur’s mental health, I consider I must exercise the Court’s discretion afresh, having regard to the ss 7 and 8 purposes and principles of sentencing that are relevant in this case.
[40] In my view, the Judge was correct to place weight on the need to denounce and deter blackmailers. However, while a prison sentence can do that, that can also be achieved through a sentence of home detention.23 Taking into account the fresh evidence as to Mr Arthur’s deteriorating family circumstances, Mr Arthur’s own lack of convictions in the past 30 years and the adverse effects on the family’s income because he is unable to assist his family run business, I consider home detention is the most appropriate sentencing option. I am fortified in this view by the supportive pre-sentence report which assesses Mr Arthur as having the “willingness and the ability to abide by such a sentence”. I also observe that Mr Arthur has now served around two and a half months of his sentence, and has experienced the deterrent effect of spending at least part of his sentence in a prison environment.
22 R v Bain [2004] 1 NZLR 638, (2003) 20 CRNZ 637 (CA).
23 Sale v New Zealand Police, above n 20, at [30].
[41] In the circumstances, I am satisfied that the principles and purposes of the Sentencing Act can be achieved by a sentence of home detention. The appeal is therefore allowed and the sentence of 21 months’ imprisonment imposed by the District Court is quashed. A sentence of eight months’ home detention is substituted to be served at the address and on the terms proposed in the pre-sentence report provided to the Court. The standard and the special release condition imposed by the District Court Judge will continue to apply.
[42] This judgment is not to take effect until Friday, 2 March 2018, as I consider it sensible to afford some time to address any practical considerations which may arise in implementing a sentence of home detention.
Solicitors:
Brandts-Giesen McCormick, Rangiora Raymond Donnelly & Co., Christchurch
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