R v Jacobs

[2014] NZHC 655

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2013-019-003436 [2014] NZHC 655

THE QUEEN

v

ANDREW COLIN GEORGE JACOBS

Hearing:	3 April 2014
Appearances:	J E Tarrant for the Crown R Boot for the Defendant
Judgment:	3 April 2014

SENTENCING NOTES OF GILBERT J

R v JACOBS [2014] NZHC 655 [3 April 2014]

Introduction

[1]      Mr Jacobs, you appear for sentence having pleaded guilty to one charge of blackmail and three charges of obtaining property by deception.   The maximum penalty for the blackmail charge is 14 years’ imprisonment, while the maximum penalty for obtaining by deception is 12 months’ imprisonment on each charge.

Facts

[2]      You befriended the victim on Facebook in June 2012 when she was 17. After communicating over a period of some months you learned from her that her father had passed away and she was receiving weekly payments from ACC.  You falsely claimed that your father had also died and that you were receiving similar payments.

[3]      In January 2013 you told the victim that you had cancer and needed an operation or you would die.  This was a complete fabrication.  You said that you had no money and nor did your mother.   You asked the victim for the money for the operation and promised that you would pay it back.   After four or five days of receiving text messages from you requesting the money, the victim paid $1,000 into your bank account. This is the basis of the first obtaining by deception charge.

[4]      After the money was deposited, you sent a text to the victim claiming that you  had  not  received the money and  asking for $2,000  for the operation.    On

14 January 2013, the victim made two $1,000 payments into your bank account in response to this request.   These two payments  form the basis of the other two obtaining by deception charges.

[5]      The day after these deposits were made, you sent the victim further texts saying that you had not received the payments.  When the victim protested that she had transferred the money you accused her of lying and said that you were going to the Police and that she would be hearing from them in the next couple of days.  You later told the victim that you had been to the bank and the Police would be arranging for a summons requiring her to attend Court.  You persisted in making these threats for approximately four days.

[6]      On 20 February 2013 you told the victim that she owed you $520.  You did not say what this was for but you threatened the victim with more Court action if she did not pay this sum.  The victim then transferred $520 into your bank account in response to this threat. This is the basis of the blackmail charge.

[7]      Your offending came to light when the victim’s mother saw the payments on the victim’s bank statements and asked what they related to.  You have not repaid any of the money which you spent on a barbeque, takeaway food, flowers for your current partner and to help pay for a holiday for your family in Taupo.

Victim impact statement

[8]      I have read the victim impact statement.  She describes feeling frightened by the messages you sent to her.   She naturally feels exploited and cheated.   She is particularly upset that you have taken the money that she was entitled to following the death of her father.

Pre-sentence report

[9]      I have read the pre-sentence report.  Despite being only 20, you already have

36 prior convictions for offending dating back to September 2010.  Thirty of these convictions are for offences involving dishonesty, causing loss by deception, obtaining by deception, forgery, unlawful taking of a motor vehicle, burglary, theft and using a document for pecuniary advantage.  The other convictions are for breaching home detention conditions (2), failing to answer District Court bail, failing to answer Police bail, obstructing Police and careless use of a motor vehicle.

[10]    The probation officer assesses you as having a medium to high risk of reoffending in a similar way given your almost continuous involvement in such crimes over the past two years. The probation officer is therefore concerned that you will cause further emotional and psychological harm to other victims.  The probation officer recommends that your current offending, which is more serious than your previous offending, should be met with a term of imprisonment.

Purposes and principles of sentencing

[11]     In sentencing you today I must have regard to the purposes and principles of sentencing set out in the Sentencing Act 2002.   In a case such as this involving blackmail, the purposes of deterrence and denunciation are particularly important. Blackmail is a very serious offence as is evident from the fact that the maximum penalty for it is 14 years imprisonment and it only be dealt with in this Court.  The sentence I impose on you must deter you and others from offending in this way and reflect society’s contempt for such offending.

Starting point

[12]     The lead offence is blackmail.  While this is by no means one of the more serious cases of its kind, I consider that your offending nevertheless involved the following aggravating features:

(a)       It was premeditated.

(b)It involved deceit which was carefully calculated by you to exploit the victim.

(c)       The victim was comparatively young and vulnerable.

(d)Your  offending  did  not  involve  an  isolated  threat;  your  threats persisted over a period of four days.

(e)       Your threats were sufficiently serious that the victim yielded to them and paid the money.

[13]     Taking these matters into account and having regard to the sentences imposed in  other blackmail  cases  referred  to  by counsel,  I consider  that  the  appropriate starting point in this case   is 10 months imprisonment for the blackmail charge.1

This  starting  point  must  then  be  increased  to  account  of  the  totality  of  your

offending.  While this offending formed a single series of events, the seriousness of

1

it is increased by your deceit in the fact that you succeeded in obtaining other payments  from  this  offending.     I  consider  that  an  uplift  of  three  months  is appropriate for the obtaining by deception charges.   This gives a revised starting point of 13 months’ imprisonment.

Personal factors

[14]     I turn to the factors personal to you which must affect the final sentence.  As noted,  you  have a lengthy history of committing offences  involving dishonesty. Further, the current offending was committed while you were serving a sentence of home detention for previous offending.  I consider that an uplift of three months is required for these factors.

[15]     I do not consider that you have shown genuine remorse, although I have read the letter that you have written.  I am not prepared to allow any separate discount for this.

[16]     Taking into account these adjustments, the effective sentence is 16 months’

imprisonment before considering your guilty plea.

Guilty plea

[17]     You were first charged with obtaining by deception in June 2013.  The charge of blackmail was added in September and you were committed on 17 December

2013.  You pleaded guilty on 18 February 2014 in the face of a strong prosecution case.    I allow a discount of three months for your guilty plea which is equivalent to an 18.75 per cent discount.  This results in an effective end sentence of 13 months’ imprisonment.

Home detention

[18]     Because your sentence is less than two years imprisonment, a sentence of home detention can be considered.  However, this is not an available option in your case for three reasons.  First, there is no suitable address available where you could serve such a sentence.   Second, your previous convictions for breaching home detention conditions indicate that you would have difficulty complying with the

terms of such a sentence.  Third, I consider that the gravity of your current offending must be met with a term of imprisonment, particularly taking into account your lengthy history of previous dishonesty offending.

Result

[19]     Mr Jacobs, please stand.   On the charge of blackmail I sentence you to

13 months’ imprisonment.   On each  of the charges of obtaining by deception  I sentence you to two months’ imprisonment.   These sentences are all to be served concurrently.  I order you to pay reparation to the victim in the sum of $3,520.00.

[20]     Special conditions, in addition to the standard conditions, will be those set out in the probation officer’s report and will expire six months from the sentence expiry date.

[21]     You may stand down.

M A Gilbert J