R v Boyd

[2013] NZHC 875

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-009-13391 [2013] NZHC 875

THE QUEEN

v

DIANE LOUISE BOYD

Hearing:         24 April 2013

Appearances: C Boshier for the Crown

S Bailey for the Prisoner

Judgment:      24 April 2013

SENTENCING REMARKS OF FOGARTY J

[1]      Ms  Boyd,  you  appear  for  sentence  today,  having  pleaded  guilty  to  122 charges.  There will be a schedule attached to this decision.  But briefly, obtaining money by deception in under $500 nine times, under $1,000 three times, over $1,000 fifteen times, attempting once, causing loss by deception under $500 four times, causing loss by deception over $500 once, using a document dishonestly eighty-one times, five of which are representative, meaning they are just indicative of the numerous times you have done that, theft by a person in a special relationship twice, five other thefts, and one charge of blackmail.

[2]      Just reciting this list does not however do justice to the grief that you have caused to the victims.   I have read their victim impact statements.  You have essentially taken advantage of men, who thought they were entering into a romantic

and trusting relationship with you.  Then, within that relationship, you have stolen

R V BOYD HC CHCH CRI-2012-009-13391 [24 April 2013]

from them in all sorts of ways; using their credit cards, forging their signatures, and so on.  The greatest loss has been suffered by Mr E, whose whole life has been significantly destroyed by you.  He, before the relationship, had his own business, his own car.  The end result, he is bankrupt.  You were able to take particular advantage of him because you were blackmailing him.  You were blackmailing him over very personal matters.  As a result of which he was completely vulnerable to you and your schemes.  He has lost his business.  He has suffered a huge loss of self esteem.  He now has to pick himself up and start again, as though he was a young man, which he is not.   The losses to the other victims are of a lower order, but include long term effects.  I just mention one of the other victims, M.  You have cost him about $48,000, and severely affected his credit rating, which caused him to have to borrow money, and has dramatically affected the way he lives in the community, and his ability to trust people in relationships.

[3]      Both  counsel  have  agreed  that  the  most  serious  charge  is  the  blackmail charge, and the associated offending, taking advantage of that blackmail against Mr E.  Both the Crown and defence counsel have gone through the authorities, and they are not very far apart in their analysis.  The Crown recommends a starting point in the vicinity of five to five and a half years for the blackmail offending, which includes and uplift to apply for the offending against the other victims.   This all being part of a pattern of conduct.  Ms Boshier further submits that that range should be uplifted by another six months, to take into account your prior convictions and your offending while subject to a home detention sentence.

[4]      Ms Boshier says that no discount should be given at all for your mental health issues.  There has been a report by a forensic psychologist.  He reports that you have received assistance from Mental Health Services on numerous occasions, as I read it, particularly over the last four years.  But you are considered to have a highly vulnerable personality structure, and meet criteria for a borderline personality disorder.  Complicating these issues is that you have a significant propensity to mislead others and to fabricate your circumstances to suit yourself.   The psychologist’s opinion is that you do not suffer from a mental illness, as I have had occasion to discuss with counsel.  Against this diagnosis, there is no easy way to acknowledge your vulnerable personality structure in the sentencing, and I am not

going to do so in this case.  I think it would make very little, if any, difference to the end sentence.

[5]      Ms Bailey says that the offending while subject to a home detention sentence was during the period at the end of the detention period, when you were subject to supervision orders.

[6]      Overall, my conclusion is that the appropriate starting point is five and a half years, to which you are entitle to a 25% discount for your early guilty pleas.  This results in an end sentence of four years and two months.  Accordingly, on the blackmail charge you are sentenced to four years and two months.

[7]      I have arranged with defence and Crown counsel that you will be sentenced concurrently on  the  remaining 121  charges.    In  order that  this  is  done without missing any out, and appropriately, counsel have worked together to agree on appropriate concurrent sentences, in order to meet those.

[8]      If I may speak to the other victims, who reading this will see that I have focussed on the offending against Mr E.  The reason the charges against you are sentenced concurrently, that is not adding to the sentence, is that it is the policy of Parliament, not of Judges, I should say, although I am not disagreeing with it, to come  to  an  end  sentence  which  reflects  overall  the  appropriate  period  for  the offender to  be sentenced.   As  Ms  Bailey has  acknowledged  in  your  case,  it  is unlikely that you will be paroled at the earliest possible date.

[9]      Ms Boyd, you are in your 40s.  You have potentially a long life ahead of you. At present, you are at serious risk of continuing this offending on release.  The psychiatric report that I have read, treats you as you are.  You are a person; you are not suffering from a distinct mental illness.  You are, therefore, responsible for what you do and you are capable of change.  The forensic psychologist says that you are likely to benefit from treatment, particularly for your gambling problem.   I would suggest to you that you should take every opportunity to get some control over your behaviour, so that you do not cause this kind of harm to other men in the future.

[10]     The Crown have asked for reparation in two sums of $98,204.50, and a further sum of $6,881.70.  The Crown have not been able to advance any prospect that any of this sum would be paid, except by way of deductions from a beneficiary payment that you would almost certainly go on to upon release.  Ms Bailey has pointed out that, given the number of victims, this payment of a few dollars each week  divided  amongst  the  victims  is  tokenism.    The  Crown  have  submitted, however, it gives some sense of recognition of loss to the victims.  It can also give, however,  a  completely  false  hope  to  the  victims  that  they  will  ever  be  repaid. Ms Bailey advises from the bar that you do not have any prospects of inheriting money.   That is not clear to me from the records.   Ms Bailey is relying on your advice to her, which I saw you give to her in Court today.  I am going to adjourn the application for reparation.  I am not inclined to grant it.  But I am going to give the Crown an opportunity, if they want, to examine your circumstances.  But I am of the view that applying for reparation orders, when there is absolutely no prospect of any significant reparation in fact being made to the victims, is creating a false sense of the reality of the situation.  I think as far as possible, the law should keep in touch of reality.

[11]    That completes my sentencing so far, and I will adjourn this proceeding formally.

Solicitors:

Raymond Donnelly & Co, Christchurch

Serina Bailey, Barrister, Christchurch

Charge	Section(s)	Maximum Penalty	Counsel Agreed Penalty
Obtains by deception Under $500 (x9)	240(1)(a) and 241 Crimes Act	3 months imprisonment	1 month imprisonment
Obtains by deception Under $1,000 (x3)	240(1)(a) and 241 Crimes Act	12 months imprisonment	6 months imprisonment
Obtains by deception Over $1,000 (x15)	240(1)(a) and 241 Crimes Act	7 years imprisonment	2 ½ years imprisonment
Attempted to obtain by deception (x1)	240(1)(a) and 241 Crimes Act	3.5 years imprisonment	1 year imprisonment
Causes loss by deception Under $500 (x4)	240(1)(d) and 241 Crimes Act	3 months imprisonment	1 month imprisonment
Causes loss by deception Over $500 (x1)	240(1)(d) and 241 Crimes Act	12 months imprisonment	6 months imprisonment
Uses a document (x81) x5 representative	228 Crimes Act	7 years imprisonment	2 ½ years imprisonment
Theft by person in special relationship (x2)	220 and 223 Crimes Act	7 years imprisonment	2 ½ years imprisonment
Theft (x5)	219(1)(b) and 223 Crimes Act	7 years imprisonment	2 ½ years imprisonment
Blackmail	237 Crimes Act	14 Years imprisonment