Arthur v Police - [2018] NZHC 279

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…

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 Arthur v Police

Details

AGLC: Arthur v Police [2018] NZHC 279
Case: [2018] NZHC 279
Decision Date: 28 February 2018

CaseChat Overview and Summary

Russell Colin Arthur appeals his 21-month imprisonment sentence for blackmail against the New Zealand Police. The appellant argues that the starting point for the sentence was too high, and that home detention was a more appropriate sentence given his mitigating factors. The court must determine whether the starting point was too high and whether home detention was the more appropriate sentence. The court found that the starting point was within the range of acceptable sentences, but that the appellant's deteriorating family circumstances, his lack of convictions in the past 30 years, and the adverse effects on the family's income because he is unable to assist in running their business made home detention a more appropriate sentencing option. The appeal is therefore allowed, and the sentence of 21 months' imprisonment 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. This judgment is not to take effect until Friday, 2 March 2018, as it is sensible to afford some time to address any practical considerations which may arise in implementing a sentence of home detention.

Orders