R v A HC Hamilton CRI 2005-070-1550

[2005] NZHC 360

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2005-070-1550

THE QUEEN

v

J    A  
AND D M

Hearing:         2 December 2005

Appearances: Mr G Hollister-Jones  for the Crown

Mr P G Mabey QC for the accused, A 
Mr C G Tuck for the accused, M   

Judgment:      8 December 2005 at 11.30am

SENTENCE OF NICHOLSON J

Solicitors:

Crown Solicitor, PO Box 190173, Hamilton, for the Crown

P G Mabey QC, PO Box 13199, Tauranga, for the accused A 

C G Tuck, Barrister, PO Box 13110, Tauranga, for the accused M   

R V A  AND AND ANOR HC HAM CRI 2005-070-1550  8 December 2005

M  offence

[1]      D  M    , a jury found you guilty of the offence that on 21 January

2005 at Tauranga you threatened to accuse a person, Mr H , of rape with intent to extort from him.   You have been convicted accordingly and are now to be sentenced for that offence.  The maximum penalty for that offence is 14 years imprisonment.

A   offences

[2]      Ms A  , a jury found you guilty of the offence that on or about the 2

November 2004, you obtained by deception an engagement ring valued at approximately $1396.   It also found you guilty that on or about 5 December last year, you obtained by deception possession of a bank cheque payable in the sum of

$22,500.  You have been convicted of both of those offences and are to be sentenced for them.  The maximum penalty for each is 7 years imprisonment.

Facts

[3]      The basic facts of the overall offending of you both are that in January 2004, Mr H      engaged the services of you, Ms A  , as a prostitute.  At the time he had a farm in Matamata.   Thereafter, he wanted your full-time services and you agreed to that on the basis that he would have to pay appropriately.  He became very fond of you, to say the least, and indeed fell in love with you.  You, however, maintained an emotional and physical distance from him.

[4]      On 25 September last year, you married Mr M    . You did not tell Mr H      about that and the following month you agreed to marry him, he believing that you were genuine and you knowing that you couldn’t marry him and didn’t intend to marry him. He bought you an engagement ring for $1396.

[5]      You then told him that your parents were separating and your mother wanted to pay your father out of their family home but did not have sufficient funds.  Mr H      offered to lend your mother $22,500 so that she could do so, he believing

that your mother was going to become his mother-in-law.  After some thought, you accepted that offer and Mr H      gave you a bank cheque payable to your mother for $22,500.  I accept that that money was paid to your mother and not used by you.

[6]      Your relationship with Mr H      continued and in the early hours of 15

January this year there was an incident in which there was intercourse between you and he. You were upset and left the house.  You later saw him, having been to counselling and complained of rape to the counsellor.   You were told that if the matter was reported to the police it would be a matter of your word against his and you thought in those circumstances it would be appropriate to meet with him, record what he said, and if he admitted rape then you would have some tangible evidence to offer to the police.  It was in that context you met with him. There was a discussion. Mr H      apparently did say he was sorry a number of times but at the trial he strongly denied that he raped you.  He said that there had been a situation of some awkwardness, you were clearly upset, and that because of your fragile condition he endeavoured to appease you by saying sorry but that he was not confessing to rape, which he still continues to deny.  The tape of the conversation was not produced and the Court is not aware of what was said and recorded on it.

[7]      You told Mr M     about what you said Mr H      had done to you.

[8]      You, Mr M     got in touch with Mr H      and arranged to meet him. You said it was in his interests to do so because you had a tape.  You met him and threatened him with disclosure of rape saying that you would have in jail by 3:00 pm and that when he went in his arsehole would be the size of a ten cent bit but when he came out it would be the size of a fifty cent bit.  You then asked what it was worth for him to stay out of jail and suggested that he pay $100,000.  He said he couldn’t. He offered an initial $30,000. You parted on that basis. He got a bank cheque for

$30,000, gave it to you, and promised to pay another $50,000.  He did this on the basis that he wanted the matter finished.   That bank cheque was banked with a special answer that afternoon.

[9]      Mr H      reflected on what was happening and decided to get legal advice. After getting legal advice the matter was reported to the police.  The police liaised

with Mr H      and arranged that when he next met you he had a tape recorder on him, which recorded what was said.  What was recorded then was consistent with Mr H     ’s version of he being blackmailed, contrary to your version of him simply offering some form of hush money.  The bank cheque was not stopped because it was cleared so quickly.

[10]     Those are the base factual circumstances.

M     - pre-sentence report

[11]     I deal first with you in particular, Mr M    .   The pre-sentence report reports your age of 33 years.  It tells of a very difficult and unfortunate childhood with you not making contact with your birth father until just some few years ago. How you were raised in a dysfunctional situation which included two alcoholic and violent stepfathers who regularly beat you.  You went into a family business venture shortly after leaving school.  It collapsed and you were made bankrupt at the age of

19.

[12]     Then the years that followed in which you became an alcoholic and a drug addict.  You did, however, graduate from Waikato Polytechnic with a certificate in social services and a diploma in social work.   I have read the report provided by Kylie Chambers, social worker, who said that you had worked with her when you were a Crippled Children’s Society social worker for special needs children;  how you were a caring, patient and devoted person and you had real skills and attitudes in helping disadvantaged people.   That perhaps can be traced to your unfortunate childhood and a wish to help others in a similar situation to that which you had.  You were on a methadone programme and while in prison you have been participating in a voluntary Countdown regime.  You have previous convictions.  Between 1990 and

1996 you were before the court convicted on 18 offences, mainly dishonesty and driving offences.  The most recent conviction was in 1996 for assault with a weapon and shoplifting, but it must not have been serious because you were sentenced to three months periodic detention and not imprisonment.   You have never been sentenced to imprisonment for any of the offending and there has been a seven and a half year gap since your last offending.  The probation officer assesses you as at a

medium to high risk of re-offending and acknowledges that you have some real difficulties to overcome in rehabilitation.

M     - reparation report

[13]     A  reparation  report  has  been  provided.    You  have  offered  to  pay  full reparation by having the motor cycle which you purchased for $17,000 out of the

$30,000 that you received, sold and the proceeds paid to Mr H     , plus $3000 of the proceeds of that $30,000 frozen in a bank account by the police you agree should be returned to Mr H     .  You have offered to pay the balance by $20 a week once you are earning.  I consider that to be an offer of amends within the meaning of the Sentencing Act but clearly it is unrealistic in light of your lack of assets and the difficulties that you will have in rehabilitation once you are discharged from prison. Ordering such reparation instalments would probably be setting you up to fail.

M     – Victim Impact Statement

[14]     The victim impact statement from Mr H      tells of his paying the $30,000 and then spending a considerable amount in legal fees obtaining advice in relation to the blackmail and what he should do.  He points out that he is not a wealthy person as such, having worked hard since leaving school sharemilking and taking the risk of purchasing a farm with his now deceased father.  He said he worked extremely hard to be in the position he was last year when he sold the farm, obviously for a substantial amount.  He is not only financially hurt by what happened but also very emotionally hurt and talks about how the blackmail has caused him a large amount of heartache and changed his life forever, he becoming a pack of nerves.

M     – aggravating and mitigating factors

[15]     The aggravating factors relating to the offending are the loss by Mr H      of $30,000.  Also the factor that your offending was pre-meditated in the sense that you  went  to  the  meeting  with  Mr  H       with  a  tape  recording  and  with  the intention of blackmailing him.

[16]     There are no mitigating factors relating to the offence.

[17]     The aggravating factors relating to you are your previous convictions, but I regard those as not very significant.   None of them were serious enough to bring imprisonment and there was a gap of some seven years after the last offence was committed.

[18]     So far as the mitigating factors relating to you are concerned, there is your unfortunate background of a dysfunctional upbringing and your drug addiction.  In that context I have read your letter which is very insightful into your situation.  In your letter, written last month to me, you state that you are more than willing to repay the entire sum of money to Mr H      and you would like to accept responsibility for any reparation due to Mr H      from Ms A  .  However, you still maintain that you did not act with any criminal intent and you conclude your letter by saying:

I still maintain my innocence yet I accept the court ruling.  I am a qualified social worker and I know that no system is perfect.  Although I maintain my innocence I am very sorry, regretful and remorseful for accepting the money from Mr H     .  I am quite willing to pay him the money back albeit it over a period of time.  I want to repay it as quickly as outstanding within reason.  I have already mentioned how J  has been impacted by this.

[19]     You say you have deepest remorse and sincerity.  As I have said, the report from Kylie Chambers shows a very positive good aspect of your character.

M     - submissions

[20]   The Crown submit that there should be a starting point of three years imprisonment and there should be a sentence in the range of three years.  Your lawyer, Mr Tuck, said that you made a formal offer pursuant to the Sentencing Act of amends, namely that the motor bike be sold and the proceeds paid to Mr H     . He submitted that you are a man of intelligence and potential with tenacity and a will to succeed.  You have, however, in his words “been battling your own demons”.

[21]     Mr Tuck realistically accepted that there should be a starting point of three years imprisonment.  He emphasises your remorse and your wish to conquer your demons.

M     - sentence

[22]     I  take  into  account  the  relevant  purposes  and  principles  of  sentencing. However, the offence of extortion as such is regarded as a very serious category of offence.  As stated by Tompkins J in delivering the judgment of the Court of Appeal in R v Patterson (CA 228/96),

Extortion, or blackmail as it is more commonly known, has always been regarded as a serious offence.  In R v Wilson  CA 31/81, 5 June 1981, this court adopted a comment in the 2nd edition of D A Thomas, Principles of Sentencing, that cases of demanding money under a threat to expose or accuse  the  victim are  almost  invariably  treated  seriously  and  will  often attract  a  sentence  of  three  years  imprisonment,  even  where  there  is substantial mitigation.

[23]     Having regard to the serious nature of the offence and your high culpability I consider that with aggravating factors an appropriate starting point is three years imprisonment.  I consider that a sentence of reparation is not appropriate in that it is unrealistic to order that you pay a stated sum of money in reparation.    However effect should be given to your offer of amends and so I order that the motor cycle purchased  with  part  of  the  $30,000,  that  motor  cycle  presently  being  in  the possession of the police, be forfeited to the Crown, that it be sold, and the net proceeds paid to Mr H     .   It is likely that that will be of the order of some

$13,000.  I also order that the $3,000 which the police have frozen be forfeited to the Crown and paid to Mr H     .  In view of your offer of amends and the mitigating factors  that  I  have  mentioned,  I  consider  it  appropriate  to  make  a  substantial reduction from the three years imprisonment and I reduce that term accordingly by six months.  I therefore in result sentence you to an effective term of imprisonment of two years six months.

A   – pre-sentence report

[24]     Ms A  , the pre-sentence report describes your age of 31 years and how you have a nine year old son to whom you are a good and caring mother.  It reports how you have completed two years of a three year undergraduate degree and that you wish to complete that and train as a teacher.  It reports how you suffer from epilepsy but manage that with medication.   You have no relevant convictions, the only one being a driving conviction.  In the probation officer’s opinion the likelihood of you appearing before the court on similar charges is minimal and you are assessed as a low risk of re-offending.  The probation officer describes you as a strong willed woman, articulate, intelligent and a responsible mother.  He reports that you are able to access support in the community if needed and recommends a sentence of community work and reparation.

A   – reparation report

[25]     The reparation report advises that you accept that you should pay reparation to Mr H      of the $22,500 and have the ring returned to him.  You have no savings.  You do not wish to get the $22,500 back from your mother and you are prepared to pay that amount yourself at the rate of $200 a week.   The probation officer recommends that you be ordered to pay reparation totalling $22,500 by instalments of $200 a week.

A   – Victim Impact Statement

[26]     Mr H     , in his victim impact report, talks not only of the financial loss involved but more particularly of the emotional loss to him, he accepting that his love was blind and he was bruised accordingly.

A   – aggravating and mitigating factors

[27]    I consider that there are no significant aggravating factors relating to the offending.  It was not a breach of trust in the usual sense of a fiduciary relationship of employer employee, or a professional relationship as such.  It was a breach of perceived love.

[28]     The mitigating factors are your previous good record and history, your offer that the ring be returned and your willingness to make restitution although that will involve you in considerable difficulty.

Submissions

[29]     The Crown submits that the appropriate sentence is imprisonment in the range of one to two years.  Your counsel, Mr Mabey, in his written submissions, has very carefully analysed the relevant factors relating to your offending and has submitted that your culpability was low.  That is also my view.  It was dishonesty offending quite different from the calculated fraud which the court frequently finds for deception offending.  It was rather a consequence of the situation which had been created which Mr H      completely misunderstood.    Clearly you deceived him when you allowed him to believe that you would marry him and that you and he were engaged.

A   - sentence

[30]     I take into account, of course, the purposes and principles of sentencing as they apply to you.  However, as stated, I consider that your offending was low on the scale of blameworthiness. I take into account your offer to make amends by way of paying  reparation.  I  also  take  into  account  that  you  will  be  able  to  perform community work, you having an obvious ability with children and wish to become a teacher.  This, in my view, is a case in which there are appropriate sentencing alternatives other than imprisonment.   The appropriate sentence in my view is community work, plus a sentence of reparation.   I accordingly sentence you to community work for 100 hours.  I order that the engagement ring be forfeited to the Crown and that it be dealt with either by sale and the payment of the net proceeds to Mr H     , or by returning the ring direct to him, whichever he wishes.  I sentence you to reparation and order that you pay reparation of $22,500 and by instalments of

$200 a week.

[31]     I order that the $3,000 in your bank account which is part of the proceeds of the $30,000 be forfeited to the Crown and that the Crown then pay that amount to the

victim, Mr H     .

Nicholson  J