R v Darbyshire

[2013] NZHC 2804

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2013-085-4818 [2013] NZHC 2804

THE QUEEN

v

JADE ROBERT DARBYSHIRE

Hearing:                   24 October 2013

Counsel:                  P K Feltham for Crown

V C Nisbet for Accused

Sentence:                 24 October 2013

SENTENCE OF RONALD YOUNG J

[1]      Mr Darbyshire you having pleaded guilty to a charge of blackmail and you are now for sentence.  The sentence arises when you pleaded guilty after a sentence indication.

[2]      The facts are as follows.  After a relationship ended between yourself and another woman you continued to seek sexual relations from her.   She refused.   In April 2013 she received a number of text messages from you saying that you would distribute explicit photos of her throughout the Wellington area including her place of work if she did not have sex with you.  You sent her approximately 40 messages threatening this action and saying that you had the photos and you were ready to

distribute them. The complainant complained to the police and you were arrested.

R v DARBYSHIRE [2013] NZHC 2804 [24 October 2013]

[3]      The pre-sentence report notes that you are 34 years of age and live with your partner and daughter and step son in the Wellington area.   You are currently in employment.  You have been previously convicted of common assault relating to the same victim.  The report notes that home detention would not be possible because of your employment but community detention would be possible but there may be ongoing problems with your current partner but I will refer and deal with those in a moment.

[4]      The Crown in their submissions both previously at the sentence indication and today stress that:

(a)      the fact that you were in a relationship with the complainant and threatened blackmail was a breach of trust of an intimacy;

(b)secondly, a threat involved the distribution of explicit photos to the complainant’s work place such a threat would have been particularly troubling to the complainant.  You made persistent demands with over

40 texts and the complainant was particularly vulnerable given the control that you had over her life because of the possession of the photographs.

[5]      I take into account the written submissions that your counsel made at the sentence indication hearing.   He stressed  that there were no threats of physical violence nor did the threats involve any demands of money and in the end stresses that the threats were not carried out and that that confirmed your intention not to ever carry out the threats.

[6]      I  am  satisfied  that  the  Crown  have  fairly  identified  the  appropriate aggravating features in this case.  Your blackmail had the potential to cause extreme embarrassment to the victim.  The attempt to blackmail was to force the victim to have sexual relations against her will.  And finally, the blackmail was based on a serious breach of trust arising from your previous relationship.  But I acknowledge on the other hand that the photographs were not distributed.

[7]      I think an appropriate starting sentence is one of 13 months’ imprisonment. From that I agree there should be a deduction for a guilty plea.   In those circumstances, the sentence does fall well within the range where home detention or community detention is available.   There is nothing, in my view, which would demand a sentence of imprisonment in this case.

[8]      The sentence indication was one of four to six months home detention but I said at the time I would not rule out community detention depending on the circumstances.

[9]      As I have noted the pre-sentence report recommended community detention rather than home detention and that was because a sentence of home detention would in your particular circumstances have meant the loss of your employment.  In those circumstances I am prepared to impose a sentence of community detention.

[10]     But I want to record in my sentencing notes this.  Over the past weekend the police were called to your address and the address of your partner.   It seems that there was some aggressive and unwise behaviour by you and as a result while there are no charges arising from last weekend, there is now some concern expressed about the suitability of the address for community detention.  There is concern about the  stability  of  the  relationship  with  your  current  partner  and  there  is  concern because of this incident and past incidents of violence that the house may be a potentially unsafe place for the two children.  The Crown now emphasise that there is serious concern about whether detention at that residence is appropriate because of your conduct.

[11]     I have had the chance to read letters from you and two letters from your partner.   She explains the circumstances that  gave rise to the incident  over the weekend and expresses confidence about you and your ability to learn from these events and make a good life for yourself and your partner and your family.

[12]     To  act  in  this  way,  Mr Darbyshire,  while  awaiting  sentence  is  frankly incredibly stupid.   My first thought was to cancel the sentence indication and in doing that your freedom would have been in serious danger.  I have decided by a thin

margin to stick with community detention as the proper sentence.  But you need to be clear that if there are any further such incidents I would expect Corrections to apply to cancel the sentence and that can be done.  And then the only alternative might be a sentence of prison.  So it’s time Mr Darbyshire that you grew up.  You have children and a family responsibility.  There is simply no room for this kind of behaviour any longer.

[13]     I, therefore, sentence you to five months’ community detention:

(a)       the address will be 38 Koro Koro Road, Lower Hutt;

(b)the curfew hours 7.30 p.m. to 7.30 a.m. Monday to Sunday with the hours extended to 9.30 p.m. on Tuesdays;

(c)       it is to commence on 31 October 2013.

[14]     Suppression  of  your  name  is  now  cancelled.     I  suppress,  however, permanently from publication the contents of the pre-sentence report.   The information contained in that report and the contents of the report are suppressed

permanently.

Ronald Young J

Solicitors:

Luke Cunningham & Clere, Wellington

V C Nisbet, Barrister & Solicitor, Wellington