R v Darrell

[2013] NZHC 1860

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-012-003168 [2013] NZHC 1860

REGINA

v

JAMIE NEIL DARRELL

Hearing:                   25 July 2013

Appearances:           P A Currie for Crown

PHB Hall QC for Mr Darrell

Judgment:                25 July 2013

SENTENCING REMARKS OF PANCKHURST J

[1]      You are for sentence this morning upon charges of blackmail and a composite charge of publishing objectionable images contrary to the Films, Video and Publications Classification Act 1993. The offending occurred on 28 May 2012.

[2]      The background was that in 2007 you met the complainant when you were 15 and she was only 14 years of age.   A friendship developed which had an online dimension.   In 2008, the complainant supplied to you via the internet explicit photographs of herself.  Some four years later, and at a time when the friendship was no longer active, you somewhat out of the blue sent her an email and also a skype message on 28 May 2012, to which you attached examples of the naked images you had received some years earlier.  You also said to the complainant that she had 20 minutes within which to upload more, and up to date, images.  If she did not do so you threatened to place the existing images on the internet together with links which

would enable her school friends and others to access them.

REGINA v DARRELL [2013] NZHC 1860 [25 July 2013]

[3]      It is of course that threat, that she provide further images or else you would expose the old ones, which is the basis of the blackmail charge.   There was no response from the complainant. You proceeded to implement the threat by uploading the existing nine naked images with the necessary links for others to access them. You sent a second skype message effectively telling her that hundreds of her friends would be in a position to access the images and you added “enjoy your life and remember how much simpler this could have been”.

[4]      In the meantime, the complainant had reported the threat to her father.  He went to the police and an investigation was underway.  He sent you a message to the effect that the police were involved and he also supplied the police investigation number.   Fortunately, at about 1.00 am on 29 May you cancelled the profile page which you had created, thereby of course removing the images from circulation.

[5]      When spoken to by the police, you had no comment to make.

[6]      On 11 June, Mr Hall sought on your behalf a sentence indication.  I indicated to you that a sentence of imprisonment was unlikely, that on account of your age and some other factors that I anticipated the imposition of a community based sentence, but its exact shape and form would depend upon the information available today.

[7]      You are 19 years of age, you turn 20 in November.  You were 18 in May of last year, at the time of the relevant events.  This offending for which you are for sentence today preceded a spate of other offending that occurred between July 2012 and  February  2013.     Over  that  period  you  incurred  convictions,  your  first convictions, for shoplifting, unlawful taking, unlawfully being in a building and breaches  of  bail,  community  work  and  supervision.    But  of  course,  you  had committed the present offences just prior to the period I have identified.

[8]      It is evident Mr Darrell that you were off the rails at that stage.  You were estranged from your parents.  You were taking drugs and generally, the indications are, you were leading a wasteful lifestyle.

[9]      The pre-sentence report, however, paints a somewhat different picture.  You are now living in Dunedin where it seems you have a settled friendship with a female student.   You are no longer estranged from your parents, and indeed they have consented to your living at home in the event that a sentence were imposed which required as much.  You are also engaged in some unpaid work in relation to which a pre-sentence report writer has commented “although this is unpaid workplace experience, it will result in a NZQA level three certificate which in turn will enable Mr Darrell to attend university next year”.   This is work in plant propagation and apparently your intention is to study horticulture and botany.  The report writer also considers that you have grown up in recent times, that you are now motivated, and that the risk of further offending is low.  As a result the report recommends that you be sentenced to community work and supervision as the least restrictive and appropriately structured sentence.

[10]     It is just as well you have earned a positive report.  It looks to me that six months ago you were on the brink, you were committing offences and looking down the barrel of an extensive sentence, probably of imprisonment, had you carried on in the manner you were.   You should be under no illusion that these offences are serious.   Blackmail carries a maximum penalty,  in the worst cases of  14  years imprisonment.

[11]     As you have acknowledged in the letter that I have perused this morning, a letter of apology to the complainant, these were nasty offences because the complainant was vulnerable as a result of her immaturity when as a young girl, underage, she supplied naked images to you.  But it was you who took advantage of her vulnerability and threatened her in the manner that I have outlined.   It was unsophisticated offending where you effectively invited detection as a result of your communications and also because it must have been possible to establish where the offending images had come from.

[12]     You have indicated through your counsel, a preparedness to participate in a restorative justice meeting if the complainant, and her family consider that appropriate.   Mr Darrell, I consider that your immaturity and the turnaround you seemed to have achieved in recent times warrants giving you another chance.  I have

recorded the facts of your offending for two reasons; both to explain the sentence, but also to provide an account for the future.  Because sentencing remarks such as these can be referred to again, if you are silly enough to offend again, and it will be recorded that you have been given this chance which I hope you are going to grasp with both hands.

[13]     As I have already indicated, I agree with the pre-sentence report writer’s approach and I propose to adopt her recommendation.   You are sentenced to 240 hours of community work.  You are also sentenced to supervision for a period of 12 months upon the standard conditions and the special condition that you are to attend and complete such alcohol and drug counselling, or treatment as is identified to address behaviour that may have contributed to  your offending, and  you are to complete  any  such  course  to  the  satisfaction  of  your  probation  officer  and programme provider.

[14]     The second special condition is that you are to attend and complete any counselling or other treatment as directed by your probation officer to address other identified offending behaviour issues, and again the obligation upon you is to complete any such course to the satisfaction of the probation service.

[15]     I make an order for destruction of the indecent images. You may stand down.

Solicitors:

P A Currie, Raymond Donnelly, Christchurch

PHB Hall QC, Barrister, Christchurch