R v C HC Rotorua CRI-2010-063-4508

[2010] NZHC 2233

This case has been anonymized

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT OR FAMILY MEMBERS IS PROHIBITED BY

ES 139 CRIMINAL JUSTICE ACT 1985

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-063-4508

THE QUEEN

v

C

Hearing:         13 December 2010

Appearances: Ms N Tahana for Crown

Prisoner in person

Judgment:      13 December 2010

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Rotorua

Mr M J Hine, Families Matter Law Practice, Rotorua

[1]      Mr C  , you appear for sentence today having pleaded guilty at an early stage in the District Court to two charges of blackmail.  Both of those charges, as you know, carry maximum sentences of 14 years imprisonment.

The facts

R V C HC ROT CRI-2010-063-4508  13 December 2010

[2]      The facts that underlie the charges come from a summary of facts that you accept.  The complainant in this case is a 77 year old retired man.  On the 17th July this year, he visited public toilets in New Plymouth.   As he was leaving, you approached him and a conversation took place.  You say that you had had previous contact with the complainant and that you then decided to use information that you had about him for your own gain.  The complainant says that he had never met you

before, and that you pretended to be some kind of official who held information that you could use in a damaging way against him.  The information was to the effect that you and he had engaged in sexual acts together in the past.

[3]      You then got into his car and the two of you drove to a bank, where he used his Visa card to withdraw a sum of money.  You then drove to another bank, where further funds were withdrawn.  He then gave you those funds on the understanding that that would be an end to the matter.  You were not satisfied with this.  Two days later  you telephoned  him.   You had traced  his telephone number by stealing  a document from his vehicle and obtaining his address from that document.  You had then made enquiries to ascertain the telephone number for that address.

[4]      Once  again,  you  exerted  pressure  on  the  complainant  and  threatened  to release information about him.  Once again, he met with you and made two further withdrawals of significant sums of money from an ATM machine.   You took that cash and assured the complainant that this would bring the matter to a state of finality.

[5]      That was not, however, the case.   On two occasions on 30 July 2010, you telephoned the complainant and sought to obtain funds from him.  The complainant again made a further withdrawal against his credit card from an ATM in the central business district and paid that cash to you.

[6]      Some time later that afternoon, the complainant reached the view that he needed to tell his wife what happened.  He told her what you had done and what he had done to accede to your requests.  No doubt at her prompting, the complainant then contacted the police.

[7]      You were found approximately three weeks later in Rotorua.  You accepted that you had made these threats and that you had obtained money from the complainant as a consequence.  You said that at the time of the offending you had been living with people who made you feel financially inadequate.   You said that you used the threats to obtain money in order to prove to them that you were a successful person in your own right.   You also said that you had been severely affected by drugs and alcohol at the time that this occurred.

Representation

[8]      I  had  some  concerns  about  sentencing  you  today  because  you  are  not represented by your counsel.  You have been represented by counsel in the past, and you, the Crown and the Court anticipated that he would be here today.  Enquiries by the Court over the previous 30 minutes have not been able to contact your counsel. Before agreeing to sentence you, I explained to you the sentence that I proposed to impose.   I asked you if you would like me to defer sentencing so that you could arrange for your counsel to be present.  I would have been prepared to transfer the sentencing to Auckland later this week in order to meet any request by you to be sentenced with your counsel present.

[9]      You have confirmed to me, however, that you accept the sentence that I am about to impose.  You have also told me that you want to be sentenced today, and that you do not want to have your sentencing deferred so that your counsel can be present.   That being the case, I propose to accede to your wishes and to impose sentence today.

Sentencing Act 2002

[10]     In sentencing you, I need to have regard to the principles and purposes of sentencing set out in the Sentencing Act 2002.  As you will appreciate, blackmail is a

very serious offence.  It can, in fact, only be dealt with in this Court.  The fact that the maximum sentence is one of 14 years imprisonment also suggests that it is a very serious crime.

[11]     Whenever a person is to be sentenced on a charge of blackmail involving the extortion of significant sums of money, issues of deterrence and denunciation are obviously to the forefront.  Both you, and others like you who might be prepared to involve themselves in similar activities in the future, must know that if they are caught they will receive a significant sentence of imprisonment.   That is the only way, really, that the Court can hope to dissuade you and others from becoming involved in this type of activity.

[12]     Having said that, it is important that I impose a sentence that is broadly consistent with other sentences imposed in broadly similar cases.  That is not an easy thing to do in the circumstances of this type of case, because the factual matrix in which offences of this type arise differ widely.

[13]     I am also required to impose the least restrictive outcome on you.  As I think you realistically accept, that really means imposing the shortest sentence of imprisonment I can having regard to the circumstances of your offending and your personal circumstances.

[14]     It is important, too, that I take into account the devastating effect that this has had on the complainant.  You have deprived him of the bulk of his life savings.  You have brought untold grief and anguish to him and his wife.  You have also placed him in a position of acute embarrassment.  He was in an agony of indecision as to whether to go to the authorities about what you were doing.  Ultimately good sense and the intervention of his wife persuaded him that he should do so.

[15]     He no longer trusts anybody, and that is not surprising.  Not only that, but he is concerned about walking outdoors because he fears that you or your associates might be there and he might encounter them.  It is likely that he will never be able to walk around with the same degree of confidence that he had in the past.  There is also a high likelihood that you may not be able to pay back all of the money that you

effectively stole.  There is no way at his stage of life that the complainant will ever be able to replace it.  In short, you have ruined the complainant’s retirement.

Starting point

[16]     The first thing that I must do is select a starting point for the sentence to be imposed on you.  This means the sentence that would be imposed having regard to the offending itself, but putting to one side aggravating and mitigating factors that are personal to you.

[17]     The Crown has referred me to a number of authorities dealing with charges of blackmail.  Up until relatively recently, a sentence of imprisonment was inevitable when an offender was sentenced on this charge.  In some cases more recently, non- custodial sentences have been imposed, but they have usually had special characteristics.  In your particular case there are a number of features that make the offending particularly serious.

[18]     First, it was carried out on a complainant who was vulnerable given the fact that he was 77 years of age and was married.   Secondly, it was of a particularly insidious nature.  A threat to expose sexual activity is a very serious matter and the fear of it, no doubt, dissuaded the complainant from going to the police at an early stage.

[19]     It also involved persistent attempts by you to obtain money.  You contacted the complainant on several separate occasions and renewed your threats.  On each occasion when he paid you cash he believed that matters were at an end.  It added considerable stress to the situation for the complainant to be confronted on several different occasions with further demands.

[20]     The  sum  that  you  succeeded  in  obtaining  from  him  was  large  by  any standards.  You accept that you extorted approximately $8,000 from him.  He says that  the  true  amount  is closer  to  $13,000.   For  present  purposes  the  difference between the two versions is not material, because I sentence you on the basis that you extorted a very considerable sum of money from the complainant.

[21]     All of those factors mean that a significant term of imprisonment is required. I take the view that an appropriate starting point to adequately reflect all of those factors is one of two years nine months imprisonment.

Aggravating factors

[22]     I now need to consider whether that sentence should be increased to reflect aggravating factors personal to you.  In the present case there are two that I consider need to be recognised.

[23]     The first of these is that this offending occurred whilst you were on bail. That is a very serious matter.   The courts only release people on bail if they are satisfied that it is unlikely that they will commit further offences whilst on bail.  The fact that you have been prepared to do that means that you have breached the trust of the Court that released you on bail.

[24]     Secondly, you have numerous previous convictions for fraudulent offending. It shows that you are a person who will steal from other people readily and that factor means that an uplift is required.

[25]     In addition, you served a sentence of three years imprisonment in Australia on a charge of extorting property with threats.   This means that you must have engaged in somewhat similar offending at some stage in the past.

[26]     I take the view that an uplift of 11 months if required to reflect these factors. The end starting point is therefore a sentence of three years eight months imprisonment.

Mitigating factors

[27]     I now need to take into account factors personal to you that operate to reduce the starting point that I have selected.

[28]     In reality, there is only one, and this is the fact that you have pleaded guilty at a very early stage.   You appeared for the first time on 13 September 2010.   You pleaded guilty on 29 September 2010.

[29]     At  the  time  that  you  entered  your  guilty  pleas  the  leading  authority  on discounts for pleas of guilty was the decision of the Court of Appeal R v Hessell [2009] NZCA 450. That decision confirmed that a reduction of one-third, or 33 per cent, was available to offenders who pleaded guilty at the earliest opportunity. You have confirmed to me that you pleaded guilty on the basis that you would receive that discount.

[30]     After the date that you pleaded guilty, the Supreme Court said that the Court of Appeal in Hessell had been wrong and that a maximum discount of 25 per cent is to be available in the future in relation to pleas of guilty: R v Hessell [2010] NZSC

135.  The Supreme Court has also said that the actual level of discount to be applied needs to be set having regard to a variety of factors, and not just the timing of the pleas.

[31]     One of the factors that the Court is now entitled to take into account is whether the case against the offender was strong.  In your case it has to be said that there was a strong case given your full and frank admissions.  On the other hand, another factor that needs to be taken into account is the fact that your guilty pleas have has saved the complainant the further trauma of having to give evidence at trial. That is a significant factor that needs to be weighed into the equation.

[32]     I take the view that justice will be done in the present case if I give you the discount that you thought that you were going to receive, namely a discount of approximately one-third.  I therefore propose to reduce your sentence by 14 months to reflect your guilty pleas and the fact that this has obviated the need for the complainant to give evidence at trial.

[33]     Mr  C  ,  on  each  charge  I sentence  you  to  two  years  six months imprisonment.  Those sentences are to be served concurrently.

[34]     I also make a  final order suppressing the name and particulars likely to identify the complainant and his family.

[35]     In conclusion, Mr C  , you need to know that you are now at a stage in your criminal career where the Court will begin to view the protection of the community as its primary concern.   On any occasion when a Court imposes a sentence of more than two years imprisonment, it has the power to set the time before which the offender may apply for parole.  The Court may make an order that an offender not be permitted to apply for parole until he or she has served up to two- thirds of the sentence.

[36]     In the present case the Crown has not sought an order requiring you to serve a minimum term of imprisonment.  You need to know that in the future it is likely that the  Crown  will  do  that,  and  that  the  Court  will  consider  the  interests  of  the community at large when it fixes any sentence to be imposed upon you.

Reparation

[37]     You have indicated a willingness to pay reparation in the sum of $8,000. Although that is not the full amount that the victim says he has lost, I propose to order reparation in that sum.   You will obviously not be able to begin making payments in reduction of the amount that I award to be paid for some time, but you have indicated that, once you are released from jail, you will endeavour to pay the reparation by weekly payments of $50.00.

[38]     It goes without saying that I hope that you do not resort to criminal activities to fund the payment of the reparation.

Lang J