R v Hunter HC Auckland CRI 2008-092-11429
[2010] NZHC 1170
•25 June 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2008-092-011429
THE QUEEN
v
LAWRENCE EDEN HUNTER NIEN-ROU WU
Appearances: C M Ryan for Crown
M N Pecotic for Prisoner (Hunter) R J Hooker for Prisoner (Wu)
Judgment: 25 June 2010 at 9:00 am
SENTENCING NOTES OF COURTNEY J
Solicitors: Meredith Connell, P O Box 2213, Auckland
Fax: (09) 336-7629 – C M Ryan
Vallant Hooker & Partners, P O Box 47088, Ponsonby, Auckland 1144
Fax: (09) 360-9291 – R Hooker
Counsel: M N Pecotic, P O Box 6379 Wellesley Street, Auckland
Fax: (09) 522-7344
R V HUNTER & ANOR HC AK CRI-2008-092-011429 25 June 2010
[1] Lawrence Hunter and Rosie Wu, you each appear for sentence today on charges of blackmail and kidnapping. Each of those offences carries a maximum penalty of 14 years imprisonment, although as you have heard me to say to counsel, it is my intention today to impose sentences of home detention on you. Nevertheless I need to talk about the nature of your offending and also to talk about the term of imprisonment that would theoretically have been imposed had I not indicated a home detention sentence instead.
[2] Mr Hunter, you pleaded guilty to one charge of blackmail in respect of an incident that occurred in May 2008. You also pleaded guilty to a charge of kidnapping and of blackmail together with Rosie Wu in respect of events that occurred in July 2008.
[3] Ms Wu, you were found guilty after a defended hearing in respect of the kidnapping and blackmail charges relating to July 2008.
[4] As is apparent from the maximum penalties, the offences of blackmail and kidnapping are serious offences. Our community particularly regards blackmail with abhorrence. It has previously been described as an insidious kind of offending, easily committed with the effect of intimidating victims often too afraid to go to the police and frequently for financial gain. In sentencing on these kinds of charges my primary objective is denouncement and deterrence.[1] Although non-custodial sentences are not out of the question, and indeed is what will occur in this case, the typical response by the courts to these kinds of offences is imprisonment. And I can
say now, if either of you were ever tempted to repeat this kind of offending this is what would happen.
[1] S 7 Sentencing Act 2002
[5] In finding an appropriate sentence I must follow the sentencing principles laid down in the Sentencing Act 2002. Of particular relevance in this case is the need to take into account the gravity of the offending, the seriousness of the type of offence, the desirability of consistency in sentencing and the effect on the victim. Against those general comments I turn then to consider the nature of your offending.
[6] All the offences involved the same complainant, a young student, Mr Chow. Mr Chow was a school pupil at the time of the first offence in May 2008. The offending by you Mr Hunter, involved completely opportunistic behaviour using heavy-handed tactics to extract money from Mr Chow on a pretext, namely the inconvenience of a friend of yours in getting into an organised fight that never even took place and with which Mr Chow had absolutely no connection. You had no basis for demanding money from him and yet obtained $1600.
[7] It seems to have been your performance in relation to that first instance of offending that gave Ms Wu the idea that led to the subsequent offending in July
2008. You were an associate of Ms Wu who had previously been in a relationship with Mr Chow. When that relationship broke up you, Ms Wu, decided that you would exact some revenge. You lured Mr Chow to a café. You got Mr Hunter to wait inside. You waited in a car in the carpark with another friend. When Mr Chow arrived, you invited him to get into the back seat and texted Mr Hunter. Mr Hunter, you and an associate emerged from the café and got into the car on either side of Mr Chow who knew immediately that he had been set up.
[8] The car drove off and when it stopped a little while later, you threatened Mr Chow, Mr Hunter, with violence. You demanded cash and when he said he could not produce the sum you were demanding you suggested electronic equipment in return. Ms Wu, your contribution was to get out a piece of paper and make a list of the things that Mr Chow could be expected to come up with based on what you knew he had. Fortunately, Mr Chow did go to the police after that occasion and when he came to the video parlour as the appointed place to hand over the bag of electronic equipment the police had you both under surveillance and you were arrested.
[9] Mr Chow was understandably intimidated. Mr Hunter you are considerably bigger than Mr Chow and clearly used that to your advantage when you made threats of violence to him. Ms Wu, you schemed to get Mr Chow to come to the cafe, knowing what Mr Hunter had done to Mr Chow the previous time. On that second occasion not only was Mr Chow confronted with Mr Hunter again, but it was in a situation in which he was outnumbered and could not escape. Mr Chow’s victim
impact statement shows how terrified he was and the feelings that he has had as a result of that offending since then; restless nights, difficulty trusting new friends.
[10] I begin my consideration of what the theoretical imprisonment term would have been with your offending Mr Hunter. The lead offence is treated by the Crown as the May 2008 blackmail, which resulted in you obtaining $1600 which I note has not been repaid, although your counsel tells me that you are prepared to consent to a reparation order. In terms of a starting point, I have had regard to a number of cases that counsel have referred me to. At one end of the spectrum is the decision in R v Thomas, in which the 18-year-old offender threatened to post intimate pictures of his girlfriend on the net. A term of six months imprisonment was quashed in that case and substituted with 200 hours of community work. Most cases of blackmail are, however, dealt with through terms of imprisonment, as I have said, in recognition of the seriousness of the offence. Starting points vary between about nine months and
two-and-a-half years.[2]
[2] R v Booth HC Hamilton T024112 4 February 2003; R v Witoko HC Rotorua CRI-2007-063-001355 5 February 2008; R v Tumohe HC Rotorua CRI-2006-069-001830 2 November 2006
[11] In finding a suitable starting point for the May 2008 offending, however, I need to also reflect the totality of the offending so it needs to reflect both that offending and the July offending. In similar cases involving instances of both kidnapping and blackmail I have had regard to the decisions in R v Banfield [3] and R v Duffy[4] in which starting points of two-and-a-half years and three years were taken. Taking the cases into account and the nature of the offending I consider that a
starting point of two-and-a-half years uplifted by a year to reflect the totality of the offending would have been appropriate. This would make a starting point of three- and-a-half years and in respect of each of the blackmail and kidnapping charges on the July 2008 offending I would have imposed terms each of two years. However, as I have said, I intend to impose a term of home detention on you in this case.
[3] CA22/05 27 July 2005
[4] HC Christchurch 15 April 2010
[12] So I look now at your personal circumstances Mr Hunter. You are now 21 years old. You were aged 19 and 20 at the time of the offending. You say you had a pretty normal upbringing though your parents separated when you were young and
this was traumatic for you, and I also note reference in the pre-sentence report to part of your motivation for your behaviour in this case going back to being so disturbed at seeing your mother physically abused by family members and this has led you to make misguided choices in dealing with associates and becoming involved in matters that you did not need to become involved in.
[13] Your lawyer has submitted that there are mitigating features that I should take into account and the Crown counsel agrees with this. These are that you were a first offender as at May 2008, your youth, co-operation with the police, remorse and guilty pleas. I accept that you are entitled to a discount to reflect your guilty plea and to reflect your co-operation with the police. However, any reduction you would have been entitled to as a result of the first offence as a result of your previous clean record is, unfortunately, offset by the subsequent offending and adjusting the starting point on that basis would not reflect the totality of the offending. Nor do I consider your age at 19 or 20 to be justification for reducing the sentence. Whatever the motivation, that is old enough to know right from wrong. Further, although I accept that your remorse is genuine, it is clear from the Court of Appeal’s decision in
Hessell, that a discount for a guilty plea encompasses the aspect of remorse.[5] I
therefore decline to make any reductions from the starting point for those factors.
[5] [2006] NZSC 40
[14] However, I do accept that co-operation with the police justifies a reasonable discount. In R v Stark[6] and Hadfield[7] discounts of 50% and 45% were given. There is no doubt that your evidence did contribute substantially to the Crown case and I would say that my observations of you while you gave your evidence was that you were truthful and I accept Ms Ryan’s submission that you did understate some aspects of the evidence. A discount of 50% would reduce my notional starting point
to 21 months. From that you would be entitled to a further discount of 10% to reflect your guilty plea because it came at a late stage shortly before trial and on the basis of Hessell would attract only 10%. This would, however, bring the sentence to
19 months and render you eligible for home detention.
[6] CA104/06 31 July 2006
[7] CA 337/06 14 December 2006
[15] You are assessed as being at low risk of re-offending. I accept that you are genuinely remorseful. I accept that you have greater insight now into the effect of this kind of offending on the complainant, and I accept that it is very unlikely that you will offend in this way again. I therefore impose a term of home detention on you of nine months. I also make an order for reparation for $1600. I note that you are unemployed and that repayments will be suspended in terms of reparation until you have got employment. Mr Hunter you are a fortunate person to have family support and indeed to have Crown counsel so strongly support the good aspects about your character and your behaviour. So you have a lot of support from all quarters and I am confident that you will not behave like this again and that you will go on to fulfil your potential.
[16] I turn then to consider your position Ms Wu. You face charges only in relation to the July 2008 incidents. However, as I have already described, this was a serious incident involving, as it did, a plan to lure Mr Chow to the café, trap him in the car with Mr Hunter, who you knew was much larger and had previously intimidated him into handing over money. Your motivation in instigating this offending was sour grapes at being dumped by Mr Chow. As you appreciate now, I hope, that is utterly unacceptable and through immaturity and astonishingly bad judgment you instigated some very serious offending.
[17] An appropriate starting point for this offending would have been two years on the blackmail charge. I note your counsel’s submission that you did not really know what was likely to happen and had not actual plan. I find those submissions disingenuous and do not accept them. You chose Mr Hunter because you knew what he was capable of and there is no doubt in my mind, having listened to the evidence, that you intended that Mr Hunter would on your behalf extract money from Mr Chow under threat in the same way he had done previously. As I have indicated, I agree with Ms Ryan’s description of your conduct as absolutely disgraceful and very worrying for a girl your age. Our community does not accept this kind of behaviour and although I have indicated a term of home detention will be imposed, you can be sure that if you behave this way again it will be prison.
[18] I turn then to your personal circumstances. Aged only 17 at the time of the offending you were in fact still at high school and living with your mother. You appear to have lacked maturity and direction. You seem to have spent quite a lot of time at the video parlour where you met Mr Hunter. You lack the maturity to have any perspective on the break-up of your relationship with Mr Chow and lack the insight to understand the effect of the offending on him. I accept that you do now have a better understanding, having reflected on what has happened, and it seems you have a much better sense of direction and purpose in your life. I am very heartened to hear that you have been accepted for a journalism course. That is a worthwhile career to embark on and if you put your mind to it I am sure that you can complete that course and make a good contribution to this society.
[19] Given your youth I would have adjusted the starting point downwards to 18 months and I impose a sentence of home detention on you of six months. I realise this is longer than what your counsel is advocating for but this offending is serious and must be recognised.
[20] I therefore make orders in respect of the home detention sentences in respect of Mr Hunter. You are to travel directly to Mays Road, Onehunga, await the arrival of the probation order and a security officer. You are to reside at 12 Mays Road, Onehunga for the duration of your home detention sentence and not move from that address without the prior approval of your Probation Officer. You are not to consume, purchase or be in possession of alcohol or illicit drugs for the duration of your home detention sentence. You are to undertake and complete any such counselling, treatment or programme directed by your Probation Officer.
[21] Ms Wu, you are to travel directly to 32/11D Eden Crescent and await the arrival of the Probation Officer and security officer. You are to reside at 32/11D Eden Crescent and not leave the address without the prior written approval of your Probation Officer. You are to abstain from the consumption of alcohol and illicit drugs for the duration of your home detention. You are to notify your Probation Officer prior to starting, terminating or changing your position or place of employment and I add to that your educational requirements.
[22] I just add a similar condition to Mr Hunter’s conditions to notify your Probation Officer prior to starting, terminating or changing your position or place of employment or commencing employment.
[23] That is all I have to say. I urge you both again, make the most of the leniency the Court has shown you today and think carefully about the way you behave
yourselves in the future. Stand down.
P Courtney J
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