R v Dobbs HC Hamilton CRI 2009-085-7829

[2010] NZHC 1255

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2009-085-7829

THE QUEEN

v

DANIELLE LOUISE DOBBS JASON BAXTER

Hearing:         16 July 2010 (At Auckland) Counsel:   J O'Brien for the Crown

V Nisbet for Dobbs
B Nabney for Baxter

Judgment:      16 July 2010

SENTENCE OF POTTER J

Solicitors:           Crown Solicitor, P O Box 13063, Tauranga 3141

Copy to:            V C Nisbet, P O Box 10-909 Wellington 6143

B Nabney, P O Box 13007, Tauranga 3141

R V DOBBS AND ANOR HC HAM CRI-2009-085-7829  16 July 2010

Introduction

[1]      Following trial by jury in the High Court at Hamilton Ms Dobbs was found guilty and convicted on one count of blackmail under s 237(1)(b) of the Crimes Act

1961.  Mr Baxter was found guilty and convicted on one count of blackmail and one count of attempting to pervert the course of justice under s 117(e) of the Crimes Act

1961.

[2]     The offence of blackmail carries a maximum penalty of fourteen years imprisonment and the offence of perverting the course of justice carries a maximum penalty of seven years imprisonment.

Factual background

[3]      Ms  Dobbs  met  Mr  T  on  an  internet  dating  website  in  2007.     They communicated by way of the internet dating website, by text message and by telephone over the next two years.  During the period from March 2008 to June 2009

Mr  T  paid  Ms  Dobbs  approximately  $20,000.    These  payments  were  made  in response  to  Ms  Dobbs  claims  to  require money for  travel,  accommodation  and expenses associated with threats made to her life and safety.  Ms Dobbs arranged to meet Mr T in Tauranga where he lived, and where she had previously lived, on 10

June 2009.  It was Mr T’s evidence that he understood they were to engage in sexual intercourse.

[4]      Ms Dobbs collected Mr T and drove him to the Armitage Hotel.  There she told him to undress and get on to the bed.  She went to the bathroom and emerged undressed from the waist up.  She joined Mr T on the bed.  At that point Mr Baxter entered the room and photographed the two on the bed.   Mr Baxter introduced himself to Mr T as “Ben”.  They had not previously met.  He made demand of Mr T for the sum of $25,000 and threatened to release the photographs he had taken to Mr T’s  wife  and  to  business  connections  of Mr T  if payment  was  not  made.    He produced a file with bank records disclosing payments made by Mr T to Ms Dobbs’

bank account over the preceding years.   He told Mr T that someone was waiting outside the room with a second copy of those statements to be delivered to Mr T’s wife if Mr T failed to co-operate.

[5]      Mr T said he was unable to raise the money to meet the demand of $25,000. He was then told by Mr Baxter to purchase a motorcycle instead.  Mr T was also told to pay the hotel accommodation costs of $360 or “things would happen to him”.

[6]      The three, Mr Baxter, Ms Dobbs and Mr T, visited BayRide Motorcycles in Tauranga.  Mr T paid a deposit of $5,100 cash for a Triumph motorcycle.  He then attempted unsuccessfully to borrow funds to pay the balance of the price of the motorcycle which was about $22,000.  When the applications for finance failed, Mr Baxter and Ms Dobbs demanded the payment to them of the cash deposit paid.  Mr T authorised BayRide Motorcycles to release the deposit to Ms Dobbs.   On 17 June

2009 BayRide Motorcycles issued a cheque to Ms Dobbs who cashed it the same day at the Westpac Bank in Cameron Road, Tauranga.

[7]      From 19 June to 15 September 2009 Mr T received a number of emails from “Ben”.  The emails were threatening and required money to be paid into the account of Ms Dobbs at the National Bank.  Frequent contact with Mr T was also made by text messages to Mr T’s mobile phone.   They demanded money and threatened disclosure of the photographs and the bank account transactions to Mr T’s wife and business contacts.

[8]      Mr T laid a complaint with the Police.   On 15 September 2009 Mr Baxter sent a number of emails to Mr T demanding that the Police investigation be stopped and all charges withdrawn.  Those emails continued to threaten Mr T.  One stated “Everybody gets out of jail a little more angry and hostile”.

[9]      At trial Ms Dobbs gave evidence of an alleged rape of her by Mr T in 2007 after he had allegedly spiked her drink at a venue in Tauranga and taken her to a rural location out of Tauranga where a number of horses belonging to him were held. The defence maintained that the payments of about $20,000 made by Mr T were in the nature of “hush” money in order to prevent Ms Dobbs from making a formal

complaint about the alleged rape, and that in June 2009 Mr T made an offer of

$25,000 to settle the matter once and for all.  Further, that when he could not raise the $25,000 he instead offered to purchase the motorcycle.  The jury clearly did not accept the defence case in finding all charges against the accused were proved to the required standard.

Pre-sentence reports

[10]     I have received pre-sentence reports in respect of Ms Dobbs and Mr Baxter. Ms Dobbs is 25 years old.   She has no previous convictions.   She reports having grown up in a loving but unstable home.   Her parents separated when she was fourteen years old.   She is receiving ongoing counselling for sexual and physical abuse  she  received  from  a  great-uncle  between  the  ages  of  four  and  eight. Psychiatric reports state that she suffers from post traumatic stress disorder and depression.   In October 2006 she attempted suicide by way of an overdose of her anti-depressant medication which necessitated admission to hospital.   The pre- sentence report records that Ms Dobbs disagrees with much of the summary of facts. She claims not to have asked for money and says she is willing to pay reparation. However, no reparation report has been provided and there is no evidence to suggest that Ms Dobbs is in a position to pay reparation, being in receipt of a social welfare benefit.

[11]     The report writer assesses Ms Dobbs at low risk of re-offending given her lack of previous convictions and her responsible attitude towards her four month old baby.  The report notes the ongoing requirement of Ms Dobbs for medical attention because  of  a  serious  back  problem  and  her  need  for  ongoing  counselling.    A reference has been provided by Ms Girdwood, midwife to Ms Dobbs, who describes her as reliable, communicative and motivated to lead a lifestyle conducive to her and her baby’s health.  She describes Ms Dobbs as “a natural mother, calm, confident and conscientious in the care of her newborn baby girl”.  Ms Dobbs says she wants to move forward in her life and provide a happy living environment for her daughter. I would observe that it can only be hoped that Ms Dobbs translates that aspiration into reality.

[12]     Ms  Dobbs  is  enrolled  in  an  on-line  part-time  course  studying towards  a certificate in business and financial literacy through Quantum Learning, which she is reported to be keen to complete.  A sentence of home detention is recommended by the report writer.

[13]     Mr Baxter is 33 years old.  He was raised by his maternal grandparents.  He has a child from a previous relationship and there is a protection order against him which extends to his previous partner and their child. At the time of the pre-sentence report there were three current charges in relation to breaches of the protection order.

[14]    Mr Baxter has a not inconsiderable offending history dating from 1994 including three convictions for non-compliance with Court orders, three convictions for fraud, two convictions for obstructing or hindering Police, two drug related convictions, four driving related convictions, two convictions for burglary or theft and  convictions  for  possessing  an  offensive  weapon,  common  assault,  using insulting language and wilful damage.  Mr Baxter says that most of this offending relates to past gang affiliations which he says ended approximately three years ago. However, the pre-sentence report notes the current charges for breach of protection order and other current charges of dangerous driving and wheel spinning.

[15]     The report notes that Mr Baxter sees himself as the victim in relation to most of this offending and seeks to shift the blame for his offending to others, never appearing to take responsibility for any of his past or current offences.   I note in submissions this morning that Mr Nabney stated that Mr Baxter now does appreciate the seriousness of the offending of which he has been convicted.

[16]     The report notes that Mr Baxter has been supportive of Ms Dobbs and their young child and the report from the midwife confirms this.

[17]     An electronic monitoring report is attached to the pre-sentence report but electronic monitoring is not recommended by the report writer given the seriousness of  Mr  Baxter’s  offending  and  also  his  lack  of  “ownership”  in  relation  to  his offending.  A sentence of imprisonment is recommended.

Aggravating features of the offending

[18]     The Crown identifies the following features which it submits are aggravating features of the offending in accordance with s 9 of the Sentencing Act 2002:

a)       Vulnerability.     The  Crown  submits  that  Mr  T  was  particularly vulnerable because of his health (he had suffered a heart attack in March 2009), marital status and the relationship established with Ms Dobbs for almost two years prior to the offending, which was sympathetic to her.

I accept that in the established relationship there was a degree of trust between the parties which placed Mr T in a vulnerable situation.  This was exploited by Mr Baxter and Ms Dobbs for their financial advantage.   However, Mr T was well aware of his marital situation when he entered upon the relationship.  His recent health difficulties may have contributed to his vulnerability but on his own evidence, he was nevertheless prepared to meet Ms Dobbs at the Armitage Hotel on  10  June  2009  for  the  purpose,  he  said,  of  engaging in  sexual intercourse.

b)The   offending   was   premeditated,   involving   setting   the   scene, gathering the “banking evidence”, taking the photographs as evidence of Mr T’s infidelity, and then pressuring the victim to purchase the motorcycle when cash was not available and to arrange the finance for that purpose.

While premeditation is invariably a feature of blackmail offending the extent of the premeditation is relevant, and here it was considerable and very deliberate.

These events were followed by emails and texts of a demanding and threatening nature using prepaid phones for anonymity and an anonymous hotmail email account which indicates forward planning

to avoid detection in the event that Mr T was to pursue a formal complaint.

c)       The value of the demand made, namely the sum of $25,000 or a motorcycle of approximately equivalent value.

On the basis of the authorities, I accept that the amount of the demand is properly regarded as significant.   It is considerably less than the amount of $700,000 which was demanded in the case of R v Knape.[1]

[1] R v Knape CA284/99 5 October 1999.

But by way of comparison with other cases such as R v Morris[2]

[2] R v Morris HC Tauranga CRI-2006-070-6060, 24 October 2008.

($7,000), R v Takao[3]  ($20,000), R v Jefferys[4]  ($25,000), R v Booth[5] ($5,000), R v Dyson[6]  ($3,000), R v Matekohi[7]  ($3,000), R v Carter[8] ($3,000), R v Price[9] ($25,000), the amount demanded here is properly regarded as a considerable or significant sum.

[3] R v Takao HC Rotorua CRI-2004-087-2227, 29 April 2005.

[4] R v Jefferys HC Rotorua CRI-2009-070-5635, 4 June 2010.

[5] R v Booth HC Hamilton T024112, 4 February 2003.

[6] R v Dyson HC Auckland CRI-2008-044-5176, 21 April 2009.

[7] R v Matekohi HC Hamilton CRI-2007-019-1089, 9 August 2007.

[8] R v Carter HC Palmerston North CRI-2009-054-2693, 21 October 2009.

[9] R v Price HC Rotorua CRI-2006-063-2598, 13 September 2006.

d)Persistence  and  repetition  of  demand.     The  demands  of  Mr  T continued persistently, even doggedly over some four months. Persistence  was  regarded  as  constituting  an  aggravating  factor  in Price, Carter, Booth, Dyson and Matekohi.   This contrasts with a situation such as that in Jefferys where there was a single demand which was not pursued, and in Takao, where there were a number of demands but over only a single day.

e)       The motivation being purely personal gain.   The Crown contrasted cases  such  as  Takao,  where  the  blackmailer  had  an  established personal grievance or was acting to protect third parties.

The  prisoners  refer  to  some  sense  of  entitlement  because  of  the alleged rape of Ms Dobbs by Mr T in 2007 about which she gave evidence at trial, and Mr Baxter’s professed belief in her account of that event.   If Ms Dobbs had been violated by Mr T, or Mr Baxter believed that was the case, the proper course was for this alleged serious offending to be reported to the Police.   It provides no entitlement or justification for the crime of blackmail.

f)        The threat underlying the demand.  While in this case there were no threats of violence or damage to property, which the Courts view seriously, the threats made were of a nature that if carried out would have impacted severely on Mr T’s reputation and his both personal and professional relationships.   Indeed, the threats were executed to the extent that a copy of the photograph taken by Mr Baxter was sent to Mr T’s home address where his wife might well have received it.

g)       The effect of the demands on the victim.   As is evident from the victim impact report, the demands made of Mr T were extremely stressful.   In his victim impact statement he describes the impact of the stress as being something “I cannot put into words”.  He says that if the threats had been carried into effect the damage to his reputation would have been ongoing for many years.  He says that as a whole his family is strong which has enabled his marriage relationship and that with his sons, not to have been compromised by this offending.

Mitigating features of the offending

[19]     There are none.  As I have said, any belief that Ms Dobbs had been violated by Mr T provides no mitigation in respect of the crime of blackmail, or in the case of Mr Baxter, the crime of perverting the course of justice.

Submissions

Mr Baxter

[20]     The Crown submits that a starting point of five to six years is appropriate before aggravating and mitigating factors are taken into account.  This is calculated on the basis of a starting point of three and a half to four and a half years starting point for the blackmail offending and eighteen months to two years for attempting to pervert  the  course  of  justice.    It  is  implicit  in  the  Crown’s  submissions  that cumulative sentences are appropriate.   However, in oral submissions this morning Ms O’Brien accepted that in sentencing for blackmail aggravating factors are usually considered in an overall manner in assessing the seriousness of the offending and the culpability of the offender.

[21]     The Crown refers to the previous convictions of Mr Baxter.   The Crown assesses this as “significant criminal history” which indicates he was well aware of the wrongfulness of his actions.  The Crown submits that the community is entitled to be protected from the actions of Mr Baxter for some time into the future, and seeks a minimum non parole period of sixty percent of the final sentence in order to denounce, deter and protect the community from Mr Baxter and his criminal offending.

[22]     Mr Nabney for Mr Baxter submits a starting point of two and a half to three years for the charge of blackmail, with a modest uplift for the charge of attempting to pervert the course of justice, resulting in a final sentence of three and a half years to reflect the totality of the offending.  In respect of Mr Baxter’s previous convictions, Mr  Nabney  notes  that  he  has  never  been  required  to  serve  a  sentence  of imprisonment although a suspended term of imprisonment was imposed in March

1994.  The most significant sentence has been nine months periodic detention.

[23]     Counsel also refers in written submissions to the support that Mr Baxter has provided to Ms Dobbs  and their new baby, which is confirmed by a reference provided by the midwife.   Also provided is a certificate from the programme co-

ordinator from a “Living without Violence” programme which Mr Baxter attended during the first part of 2010.  The report states that Mr Baxter “... is clear that he has positive  goals  to  achieve  in  his  life;  being  a  good  father  and  partner,  legal employment and a life free from violence and crime”.  In interpolate Mr Baxter that whether you achieve that stated ambition will be entirely up to you.  You will have to  achieve  a  new  director  for  your  life  after  you  complete  your  term  of imprisonment.  You have within you the ability to achieve that.  It is entirely up to you.

[24]     Counsel firmly opposes the imposition of a minimum non parole period, submitting that the term of imprisonment that will be imposed will be sufficient to meet the purposes in s 86(2) of the Sentencing Act.  Counsel further notes that the Crown has not referred to any authorities where a minimum period of imprisonment has been imposed in relation to similar charges to those faced by Mr Baxter.   He submits that a minimum period of imprisonment in this case, where the offending is of a kind within the ordinary range of offending for blackmail and attempting to pervert the course of justice, would be inconsistent with authority.

Ms Dobbs

[25]     The Crown submits that a starting point in the region of two and a half to three years imprisonment is warranted before taking into account aggravating and mitigating factors.  The Crown opposes a sentence of home detention because of the aggravating  features  of  the  offending  and  the  need  for  specific  and  general deterrence and denunciation for this type of offending.  The Crown also refers to the use of internet and mobile phone communications to carry out this offending and notes  that  such  facilities  continue  to  be  available  for  home  based  sentences. However, in oral submissions today Ms O’Brien accepted that when she filed her written submissions she did not have the benefit of the pre-sentence report in relation to Ms Dobbs, nor the psychiatric reports that have been provided.  She also noted that the course upon which Ms Dobbs has embarked is funded by the State and the use of a computer is part and parcel of the requirements which Ms Dobbs expresses herself as keen to complete.

[26]     For Ms Dobbs, Mr Nisbet emphasises that she has no previous convictions and that personal factors such as her health and her new baby are matters that the Court should consider in sentencing.   Counsel submits that a sentence of home detention is appropriate, as recommended by the writer of the pre-sentence report.

Purposes and principles of sentencing

[27]     In  their  written  submissions  counsel  have  helpfully  referred  me  to  the relevant purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act which I take into account.   The main purposes that apply in this case are accountability and responsibility for the harm done and denunciation and deterrence both in general and in particular.  I must seek to achieve consistency in sentencing levels and to impose the least restrictive sentence that is appropriate in the circumstances.

Authorities

[28]     The Court of Appeal said in R v Patterson[10] that blackmail has always been regarded as a particularly serious offence.  This is reflected in the maximum penalty of fourteen years imprisonment.  The offence is regarded by the public, and rightly regarded, with loathing and contempt.

[10] R v Patterson CA228/96, 22 August 1996.

[29]     The factual situations in the cases vary considerably and the culpability and criminality involved in a particular case, need to be individually assessed.

[30]     R v Morris[11]  is helpful.  Mr Morris was convicted of charges of blackmail, attempting to pervert the course of justice, car conversion and dangerous driving. The prisoner had threatened to dispose of the victim’s car and the cremated ashes of a relative of the victim which he had found in the car when he converted it, unless the victim paid him $7,000.  Having realised that the Police could trace Mr Morris’

[11] R v Morris HC Tauranga CRI-2006-070-6060, 24 October 2008.

associate involved in the offending, through his car registration, a false report was made to the Police that the associate’s car was stolen.

Venning J assessed the blackmail offending as serious and persistent and took a starting point of three years imprisonment.   He regarded the charges of blackmail and perverting the course of justice to be connected in as much as they were related, but he said they were different in kind and required cumulative sentences to be imposed.  For the perverting the course of justice charge he took a starting point of eighteen months imprisonment.   An uplift of nine months was applied for the previous convictions of the offender which were serious.

[31]     Standing back and applying the totality principle to the sentence of six years which an accumulation of the starting points indicated (there was nine months on the conversion charge), the Judge considered such a sentence would be manifestly excessive.  He imposed an end sentence of five years imprisonment.

[32]     For the associate, a starting point of between eighteen and twenty two months imprisonment was taken.   The Judge considered that the culpability of Mr Morris was considerably greater requiring a substantially higher starting point.   The associate,  he  said,  was  completely  dominated  by  Mr  Morris  and  acted  at  his direction.

[33]     The amount demanded in the Morris case was considerably less than the

$25,000 demanded here.  Further, in this case $5,000 was actually obtained as the result of the blackmail, and paid to Ms Dobbs.  In cases such as Takao and Jefferys, where sums of $20,000 and $25,000 were demanded, the circumstances of the offending were considerably different from this case.  In Jefferys there was a single unsuccessful demand which was not pursued and there was an immediate guilty plea. In Takao, the demands extended over a single day; there was minimal impact on the victim and again an early guilty plea.

[34]     In relation to the charge of perverting the course of justice the Court of

Appeal in R v Hillman[12] said:[13]

Any attempt to dissuade a witness from giving evidence strikes at the administration  of  justice  and  must  be  met  by  the  Courts  with  a  stern response.

[12] R v Hillman [2005] 2 NZLR 618 (CA).

[13] At [6].

[35]     After referring to three authorities, the Court said that a sentence of three years was taken as the benchmark for what was very serious offending of its kind.

[36]     I observed in R v Dutt:[14]

[14] R v Dutt HC Auckland T025524, 2 April 2004.

A review of the cases indicates that three years imprisonment appears to be reserved for relatively serious cases and a starting point in the range of 18 months to 2 years is suitable for less serious attempts to pervert the course of justice.  Hillman and Clutterbuck are authorities for that, and it is reflected in the other decisions.

Sentencing

[37]     In this case the blackmail offending was serious and persistent and involved considerable premeditation.  The demand for $25,000 was for a significant sum.  The aggravating features of the offending are reflected in the starting points I adopt.

Mr Baxter

[38]     As I have said, Mr Baxter was the leader.  He was the dominant party who orchestrated the blackmail.  I regard a starting point slightly higher than that adopted for the principal offender in Morris to be appropriate because I assess the seriousness of the blackmail offending in this case as greater than that in the case of Morris but less serious than in the case of Knape.  I take a starting point of three and a half years imprisonment.  There are no personal mitigating factors to assist Mr Baxter.

[39]     For the charge of attempting to pervert the course of justice, I take a starting point of twenty months imprisonment.

[40]     The sentence is to be cumulative on the sentence for blackmail.  Section 84 of the Sentencing Act provides that cumulative sentences of imprisonment are generally appropriate if the offences are different in kind, whether or not they are a connected series of offences.  The offending giving rise to the charge of perverting the course of justice was clearly connected with the blackmail offending, but the offences are quite different in kind.   Having orchestrated and participated in the blackmail offending, Mr Baxter moved on to try to prevent the criminal actions in relation to the blackmail from being investigated by the police.   Cumulative sentences are called for.

[41]     Mr Baxter’s previous convictions are an aggravating factor requiring an uplift which I fix at four months imprisonment.

[42]     The end sentence so reached would be five years six months imprisonment. Section 85 of the Sentencing Act provides that the cumulative sentences imposed must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.  Standing back and applying the totality principle, I consider an end sentence of five years six months imprisonment to be out of proportion to the overall gravity of the offending.   I will therefore structure the sentences  to  reduce  the  total  term  by  one  year,  to  four  years  six  months imprisonment.

[43]     The Crown seeks the imposition of a minimum period of imprisonment.  Mr Nabney opposes this on behalf of Mr Baxter.  I accept Mr Nabney’ submissions.  I consider the purposes set out in s 86(2) of the Sentencing Act are sufficiently met in the circumstances of this case, by the sentence to be imposed on Mr Baxter.

Ms Dobbs

[44]     A starting point of two and a half years imprisonment is warranted.  I accept that Ms Dobbs’ role was a supporting one with Mr Baxter being the dominant party. It appears that the established relationship between Ms Dobbs and Mr T changed dramatically in nature with the intervention of Mr Baxter.   However, Ms Dobbs

participated in premeditated and persistent offending and was instrumental in obtaining $5,000 from the victim as the result of the blackmail.

Ms Dobbs is a first offender.  She seems to have some insight into the seriousness of this offending.   She has serious health issues and also needs ongoing counselling because of past sexual and physical abuse which have proved very detrimental for her.  On account of her personal mitigating factors I allow six months resulting in a sentence of two years imprisonment.

[45]     I consider this to be an exceptional case where the primary purposes  of deterrence and denunciation in sentencing for blackmail should give way to the purposes of rehabilitation and reintegration.   I consider it is appropriate to impose home detention.  It is clearly in the interests of the child of the relationship and Ms Dobbs herself that she be available to care for her very young daughter.   Home detention, as Mr Nisbet noted in his written submissions, is not a soft option.  Ms Dobbs will need to be responsible and vigilant in complying meticulously with all the terms and conditions of her sentence of home detention.  Breach of any condition could lead to revocation of the sentence of home detention which would result in the sentence of imprisonment being imposed.

[46]     I impose on Ms Dobbs a sentence of twelve months home detention for the offence of blackmail.

Summary of sentences

[47]     Please stand.

Mr Baxter

[48]     The sentences imposed on you are:

a)        On the charge of blackmail three years imprisonment.

b)On the charge of perverting the course of justice, eighteen months imprisonment.

Those sentences are to be served cumulatively.  The end sentence is thus four years six months imprisonment.

Ms Dobbs

[49]     The sentence imposed upon you is twelve months home detention.   The sentence will take effect from Monday 19 July 2010.  This will enable you to return to your home in Wellington before the sentence comes into effect.  There will be the following conditions with which you must comply:

a)       To return directly to  your address in Wellington at 80C Moxham Avenue, Haitaitai.   (I understand you are on a 6 p.m. flight from Auckland to Wellington tonight.)  You are to remain at that address until representatives from the Department of Corrections attend to put in place electronic monitoring.

b)To attend to the requirements for the care of your child as directed and approved by the probation officer.

c)       To attend counselling as directed by the probation officer including specifically counselling for sexual abuse.

Non publication order

[50]     I confirm the order previously made that there is to be no publication of the name of the victim T or of any details likely to lead to his identification.

[51]     You may stand down.