R v L - [2014] NZHC 1229

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-004-004979 [2014] NZHC 1229

THE QUEEN

v

L

Hearing: 3 June 2014

Counsel:

NMH Whittington for the Crown
J Corby for the Defendant

Date:

3 June 2014

SENTENCING NOTES OF ASHER J

Solicitors/Counsel:
Crown Solicitor, Auckland.
J Corby, Auckland.

R v L [2014] NZHC 1229 [3 June 2014]

[1] Ms L, you appear for sentencing today having been found guilty after a jury trial of one count of making an intimate visual recording, and one count of blackmail. The maximum penalty for making an intimate visual recording is three years’ imprisonment, and for blackmail is 14 years’ imprisonment.

Background

[2] In July 2012 you had previously been in a relationship with the complainant. You had a child together and there was in place an interim parenting agreement. You had the primary care of the child. Following the break-up of your relationship the complainant had married a new partner.

[3] While married to his new partner, the complainant and you had sexual relations on two occasions at your home. On the second occasion on 16 July 2012, you arranged your laptop on the side table so that the sexual activity was filmed. As the complainant was leaving the bed he noticed a light on her laptop and queried afterwards whether you had filmed the sexual activity. At that time you denied having done that.

[4] Some months later on 24 November 2012, you contacted the complainant and met with him to discuss the care of your daughter. You advised the complainant that you wished to move to Wellington with the daughter. The complainant disagreed.

[5] On 30 November 2012 the complainant went to your home to pick up his daughter. At that time you told him you had filmed him having sex with you and that you still had the footage. You threatened to show the footage to his wife if he did not consent to you moving to Wellington with your daughter.

[6] On 4 December 2012 you sent an email to the complainant setting out those arrangements that you wished to have put in place for your daughter’s care, which included the move to Wellington. You advised the complainant that he had until
3 pm on Friday, 7 December to agree with this arrangement or you would put the matter before the Family Court.

[7] On Friday, 7 December 2012 the complainant telephoned you and warned you that what you were doing was blackmail and that he would report the matter to the Police. However, later that day you telephoned the complainant’s wife. You met and disclosed that there had been sexual activity on two occasions between yourself and the complainant. You told the complainant’s wife that you had proof of this that you were willing to show it to her. The complainant’s wife visited your address two days later and you showed her some texts and photographs. You also offered to show her the video, which she declined to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v L

Details

AGLC: R v L [2014] NZHC 1229
Case: [2014] NZHC 1229
Decision Date: 3 June 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Ms L was sentenced for her conviction of making an intimate visual recording and blackmail. The court was tasked with determining an appropriate sentence, considering the nature and circumstances of the offences, as well as the personal characteristics of Ms L. The legal issues before the court included the appropriate starting point for imprisonment, the impact of domestic circumstances on culpability, and the necessity of imposing a sentence that reflected the seriousness of the offences while taking into account Ms L's good character and remorse.

The court considered various sentencing principles, including the hierarchy of sentences and the need to impose the least restrictive outcome that is appropriate. It assessed the seriousness of the offences, the premeditation involved, and the effect on the victim. The court recognised that while the offences warranted a sentence of imprisonment, the domestic and confused nature of Ms L's actions, alongside her good character and genuine remorse, warranted a less restrictive sentence. Therefore, the court opted for a combination of community detention and community work, which it deemed appropriate given Ms L's need to care for her daughter and her minimal risk of reoffending.

Ms L was sentenced to six months of community detention with conditions that she must remain at a specified address between the hours of 8 PM and 7 AM, seven days a week, starting five working days from the date of sentencing. In addition, she was ordered to complete 120 hours of community work. The court deferred the imposition of intensive supervision, considering it unnecessary given Ms L's low risk of reoffending and her positive personal circumstances.

Orders