Green (aka Goldberg) v Police

[2012] NZHC 3228

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-192 [2012] NZHC 3228

BETWEEN  GLENN GREEN (AKA GOLDBERG) Appellant

ANDTHE POLICE Respondent

Hearing:         20 November 2012

Appearances: A D Couchman for appellant

M Hodge for respondent

Judgment:      3 December 2012

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of  pm on Monday 3 December 2012

Solicitors:

A D Couchman, Auckland  [email protected]
Crown Solicitor Auckland  [email protected]

GREEN (AKA GOLDBERG) V POLICE HC AK CRI 2012-404-192 [3 December 2012]

Introduction

[1]      The appellant pleaded guilty on 12 April 2012 to two charges of criminal harassment, contrary to s 8(1)(b) of the Harassment Act 1997.

[2]      On 15 June 2012, Her Honour Judge Sinclair  sentenced the appellant to

15 months imprisonment on each charge, to be served cumulatively;  so the effective sentence was two and a half years imprisonment.[1]     He now appeals against that sentence on the ground that it was manifestly excessive.

Factual background

[1] Police v Green DC North Shore CRI-2012-044-2233, 15 June 2012.

[3]      There were two victims of the appellant’s offending.   They are completely

unconnected with each other.

Victim A

[4]      The first victim (Victim A) was a 19 year old female who lived in Auckland. The appellant used an alias to contact her, claiming that he knew her ex-boyfriend, who had committed suicide approximately three years earlier.  That incident aroused much media interest, the names of victim A and her ex-boyfriend having been widely published.  The appellant said that he had some knowledge about the ex-boyfriend which Victim A would be interested in.  He claimed also to have met her at a party, although it is now common ground that that was untrue.

[5]      The  appellant  convinced  the  victim  to  give  him  her  cell  phone  number, promising to send photographs of himself so that she would recognise him.  Initially Victim A thought she did recognise him, but on closer examination realised she did not.  The appellant then began sending numerous text messages to her.  She did not reply because by then she realised she had no connection with him.   Not having

received any replies, the appellant tried to contact her by phone at her home.  On

25 November  2011,  Victim  A’s  mother  received  a  letter  in  the  mail  from  the

appellant which contained photographs of him.

[6]      The flood of text messages from the appellant continued.   They became abusive.   The victim blocked the appellant’s number on her cell phone but her mother continued to receive calls from him, necessitating a change in the landline number.  Then the appellant contacted the appellant’s elderly grandfather, convincing him that he was a genuine friend and persuading him to provide a fresh phone number for the victim.

[7]      Over a period of little more than a week, the appellant sent scores of text messages  which  became  more  and  more  abusive  in  their  tone.    Some  were demeaning, others were simply rude.  The constant harassment caused Victim A and her family anxiety, distress and concern for her physical safety.  She discontinued her course of study, changed her phone number, and ultimately moved to another town to escape the appellant’s attentions.  When he was arrested, photos of Victim A were found on his phone.

Victim B

[8]      The second victim was a 27 year old female who lived in Christchurch.  She had never met the appellant, nor had she had  any contact with him before the harassment commenced.   Between 1 and 6 December 2011 (a period almost co- extensive with the offending period affecting Victim A), the appellant sent Victim B more than 250 text messages, mostly under the fictitious identity of “Amy Isabella”.

[9]      The appellant, pretending to be Amy, told Victim B that they had attended school together.  The text messages were sinister, abusive and threatening.  Not all of the text messages purported to be from Amy.   Some, sent in the appellant’s own name, claimed that he had an association with the Hell’s Angels Motorcycle gang, and that he was the president of the Aryan Brotherhood gang.   Some messages contained threats to have the victim assaulted by that latter gang.

[10]     On  2  December  2011,  Victim  B  received  a  letter  addressed  to  her grandmother’s address.  The letter from the appellant claimed that he had met Victim B earlier that year and that they had kissed.  He enclosed a photograph of himself.

[11]     On  10  December  2011  the  Victim  received  another  letter  which  made reference to text message conversations with Amy and reaffirmed his affiliation with the Aryan Brotherhood gang.

[12]     Victim B was terrified and distressed, and feared for her own safety and that of her family, including her elderly grandmother who had received one of the letters. She was obliged to change her cell phone number.

Sentencing in the District Court

[13]     Having reviewed the facts at some length, Judge Sinclair read aloud the victim   impact   statements   which   she   accurately   characterised   as   providing “distressing and chilling reading”.  She went on to consider the appellant’s previous convictions.  His list can only be characterised as remarkable.  He had a total of 201 previous convictions.  Of these, there were 35 for breaching protection orders;  four for misuse of a telephone, five for earlier criminal harassment, and six for perverting the course of justice.   The Judge noted that the probation report assessed the appellant’s likelihood of re-offending as high.   That assessment was based on his extensive criminal history and the short time lapse (only a few weeks) between his release from prison and the commencement of the current offending.   The Judge identified accountability, deterrence, and the protection of the community as factors requiring to be reflected in the sentence imposed.

[14]     In  determining  the  appropriate  starting  point,  the  Judge  considered  the offending in respect of both charges to be of similar gravity.   She noted that each involved premeditation, and focused upon a victim of whom the appellant must have had prior knowledge.  It is obvious that a degree of research had been required.  She considered that a starting point of 17 months imprisonment on each charge was appropriate.   Moreover, she concluded, cumulative sentences ought to be imposed because  the  offending  occurred  on  separate  dates,  at  different  times  and  under

different circumstances.   The Judge then imposed an uplift of one month for the appellant’s previous convictions, noting that a number were for virtually identical offending.

[15]     The appellant had written a letter of apology to the Court and had indicated his willingness to engage in restorative justice initiatives.  But the Judge considered that the letter was driven more by the personal difficulty in which the appellant found himself, rather than any genuine remorse for the suffering of his victims.  That emerged, she thought, from the focus in the letter to the Court on the appellant’s personal difficulties while serving a previous sentence of imprisonment.   His willingness to engage in restorative justice activities was, she considered, a “… pervasive and underhand way of obtaining the ultimate goal, which was to meet and have contact with the victims”.

[16]     The Judge allowed a discount of 25% for the appellant’s early guilty pleas, and so reached a sentence of 15 months imprisonment on each charge, to be served cumulatively, and therefore resulting in an end sentence of two and a half years imprisonment.  She considered the sentence appropriately reflected the gravity of the offending in respect of two quite separate young victims, against a backdrop of significant  and  relevant  previous  offending.     The  appellant’s  criminal  history included a sentence of 20 months imprisonment for the same charge of criminal harassment imposed in 2007.   The Judge noted that imprisonment appeared to be having little impact on the appellant, who had embarked on very similar criminal behaviour within weeks of his release from prison.

Submissions for the appellant

[17]     Mr Couchman submits that the starting point selected by the Judge was too high.  He says that the offending against Victim A was more serious, in that she was younger and more vulnerable than Victim B.   Moreover, Victim B understood for some of the period of the offending, that the text messages were coming from two friends  and  not  the appellant,  so  the impact  of the messages  on Victim  B was softened  somewhat.     Mr  Couchman  accepts  that  cumulative  sentences  were available,  but  submits  that  the  overall  end  sentence  had  properly to  reflect  the

appellant’s culpability.  He also accepts that the Judge was entitled to have regard to the need here for individual deterrence, given the appellant’s appalling history of similar past offending.  But he submits that care is needed in allowing for personal deterrence.    In  that  respect  he  cites  R  v Ward,  where  McCarthy P,  writing  the judgment of the Court of Appeal, noted that the protection of the public against those likely  to  offend  repeatedly  can  all  too  easily  be  used  as  a  basis  for  imposing

additional punishment for past offences.[2]   So there must be a reasonable relationship

between an allowance for personal deterrence and the penalty justified by the gravity of the offence.

[2] R v Ward [1976] 1 NZLR 588 (CA) at 591.

[18]     In the light of limited previous authority discussed below, Mr Couchman submits that the end sentence ought to have been of the order of 20 months imprisonment, rather than 30 months.  That could be achieved, he says, by adopting a starting point of 10 months imprisonment for each victim, adding six months for the appellant’s previous record, and then deducting six months for the guilty plea.

Submissions for the respondent

[19]     Mr Hodge submits that the sentencing Judge was well entitled to impose a sentence of 30 months imprisonment.  This was a bad case of predatory targeting of young women who did not know the offender.   Some of his earlier offending was committed in the context of soured personal relationships.  But because there was no connection at all here between the appellant and his victims, the offending is rather more sinister.  Moreover, Mr Hodge submits, there was a need for both a significant uplift to reflect the appellant’s very bad criminal history, and a separate need to have regard to personal deterrence considerations for this particular offender.

Discussion

[20]     Mr Couchman’s acceptance of the use of cumulative sentences here is both

responsible and soundly based.  As was pointed out by Ronald Young J in Smaill v

Police, victims of offending such as this are entitled to discrete recognition, by the

imposition of separate cumulative penalties to reflect the separate offending against each victim.[3]    There is only limited relevant sentencing authority for cases of this type.  In Smaill there were three separate sets of victims.  Each had been harassed not only by way of phone call and message, but also by the delivery of intimidating packages containing such items as live ammunition, parts of clocks, used condoms, and excrement on one occasion.

[3] Smaill v Police HC Dunedin AP17/99, 25 June 1999 at 10.

[21]     A dispute had arisen in the context of allegations made (seemingly by the appellant) of pupil abuse by the principal of a local school.  He was not a victim, but he appears to have been supported by at least some of those who were victims.  The second background issue concerned the proposed sale of the appellant’s land to the local Council with a view to the land being used as a cemetery. That was opposed by two married couples, who were victims, and whose land  lay near the proposed cemetery.

[22]     So  there  was  a  connection  between  the  offending  on  the  one  hand  and disputed issues on the other.

[23]     Ronald Young J upheld a sentence of 18 months imprisonment which was the product of three cumulative sentences of six months imprisonment for each set of victims.

[24]     A more recent case is R v Cleven.[4] There, the prisoner appeared for sentence in the High Court on one charge of criminal harassment which again arose in the context of an existing relationship.  The prisoner had been paid by one party to a commercial dispute to recover an alleged debt from the victim.   He engaged in various intimidatory tactics, including an implied threat to the life of the principal victim’s daughter.  The intimidation included tactics such as arriving unannounced on the victim’s doorstep and showing him explicit photographs of dead animals which  had  been  mutilated.    The  Judge  adopted  a  starting  point  of  15  months

imprisonment.

[4] R v Cleven HC Auckland CRI-2008-004-17744, 17 December 2009.

[25]     Those cases can provide only general guidance.  The facts of the present case are  quite  different  from  each  of  them.    There  is  a  significant  aggravating  and worrying feature here, namely the choice of victims who were completely unknown to the appellant, and the pursuit of each of those victims in an unrelenting and frightening fashion over some days.

[26]     A factor of primary importance is the nature and extent of the appellant’s previous criminal offending.  It includes a number of offences that bear a distinctive similarity to these cases. As long ago as 2001, he was sentenced in the District Court to two years three months imprisonment in respect of a number of charges to which he had pleaded guilty.  They included four charges of criminal harassment.  These charges arose from a soured personal relationship.   The appellant and his former partner had lived together for about nine months in 2000.  In December 2000, she moved out of their shared flat and stayed with her parents.  Over a period of some weeks the appellant telephoned her more than 130 times, sent her numerous unwelcome letters, telephoned her employer making untrue allegations about her, and harassed in various ways her parents, her best friend, and  her best friend’s husband.  For example he told the victim’s father that when he was able to get his former partner away, her father would never see her again.  He sent a letter to the victim’s parents containing threats that the gangs had a contract out on her, and that her entire family were under continual surveillance.

[27]     On another occasion he telephoned the address of a friend and said “Beware of the brotherhood, bitch”. Then he telephoned the police, saying:

Someone’s got her in their sight now.  She is in the cross hairs as we speak. She is on the deck with her family as we speak.  Get someone round to that address.

[28]     An appeal against sentence was dismissed by Salmon J.[5]    The Judge noted that Mr Goldberg had previously been sentenced in the High Court on two occasions on charges relating to his obsession with the complainants.  On each occasion, the ultimate sentence was 18 months imprisonment.   Salmon J said Mr Goldberg had

failed to learn from those penalties and so a significantly greater penalty would be

justified on that ground alone.   He considered the starting point of 15 months imprisonment adopted in respect of the criminal harassment charges was justified in view of the need for a deterrent sentence and to ensure that victims were protected.

[5] Goldberg v Police HC Auckland A/149/01, 8 November 2001.

[29]     The present offending appears to represent an escalation from the earlier offences, in that the appellant is now targeting vulnerable young women who have no previous relationship with or knowledge of him at all.  His behaviour is invasive, persistent and predatory.   In the case of Victim A, the appellant sought to take advantage of a young woman, who was no doubt still emotionally affected by the loss of her boyfriend by suicide.

[30]     I accept Mr Hodge’s submission that a condign sentence was appropriate here, because there is no indication that the appellant has learnt anything at all from the penalties imposed for his past offending.  The public is entitled to be protected from him, and he himself must learn from the imposition of ever-increasing penalties that his behaviour will not be tolerated.

[31]     I am satisfied that the sentence imposed by Judge Sinclair was reached after a careful analysis of the relevant factors, was within the available range, and ought not to be disturbed.

Result

[32]     For the foregoing reasons, the appeal against sentence is dismissed.

C J Allan J