R v L HC Timaru Cri-2009-045-471

[2009] NZHC 1980

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2009-045-000471

REGINA

v

L

Appearances: A R McRae for Crown

W I Dean for Prisoner

Judgment:      15 October 2009

SENTENCE OF HON. JUSTICE FRENCH

[1]  L  , you appear for sentence this morning following a plea of guilty to one count of blackmail.

[2]      The victim is your estranged wife.   She served in the British Army, and following  discharge  from  the  army  was  diagnosed  with  post-traumatic  stress disorder.   As a result, she became eligible to receive what is called an “unemployability allowance” from the English Service Personnel and Veterans Agency.  Her allowance commenced in 2005.

[3]      In April 2008, you and your wife separated and negotiations followed in relation to property matters.  You were anxious to keep the matter out of Court and believed you had reached an agreement. However your wife engaged a lawyer and

that resulted in a number of Court proceedings.  It appears this greatly angered you.

R V L HC TIM CRI-2009-045-000471  15 October 2009

[4]      In June 2008, you contacted the Service Personnel and Veterans Agency in order to instigate some sort of inquiry into your wife’s eligibility for the allowance. She  had  been  working  while  receiving  the  allowance  at  the  same  time.    You, wrongly as it turned out, believed she was not entitled to do that.  She was however permitted to both work and receive the allowance, and indeed had, unbeknownst to you, already disclosed her circumstances to the Agency.

[5]      What happened next was that between 11 and 15 November 2008 you sent a number of text messages threatening that you would disclose information to the Agency if your wife did not accept your demands regarding the matrimonial property dispute.

[6]      On 13 November you left a phone message stating you would be sending documents to the Agency.  Then a week later, on 21 November, you drafted an email to the Agency disclosing that your wife had been working and claiming she was acting fraudulently.  This was never sent to the Agency.  Rather, you sent it to your wife and her psychologist with a hand-written note saying your wife should stick with the matrimonial property agreement or else you would forward the email to the Agency.

[7]      On 8 April, when you were spoken to by the police, you admitted making the threats as I have outlined them on those various dates.   You told police your motivation was to persuade your wife to uphold your verbal matrimonial property agreement, and for you to obtain what you considered to be your fair share of the property.

[8]      I have read the victim impact report.

[9]       As you were aware at the time, your wife is suffering from post-traumatic stress disorder.  Your offending has caused her unnecessary additional distress and upset, as well as financial loss (calculated at $5,841).  She had to take time off work and also incurred additional legal costs as a direct result.

[10]     I  have  also  read  the  pre-sentence  report  and  your  counsel’s  written submissions.

[11]     You are 55 years of age, and this is the very first time that you have ever appeared in Court.  To be now facing such a serious charge indeed represents a fall from grace of some significance.

[12]     You were born in Scotland and served for 23 years in the army, reaching the rank of Staff Sergeant.  You were honourably discharged from the British Army in

1992, having approximately six years earlier been awarded a long service and good conduct medal from the army.  Your counsel tells me that you are an experienced horseman, having competed in endurance riding at both national and international level.   You are also currently a member of the New Zealand Endurance Riding squad, and have worked in a variety of sports, as well as being a trained sports injury therapist.  All in all, you appear to have undertaken a life of high achievement and done well.

[13]     Your counsel submits that your offending is out of character, occurring at a time when you were under significant stress due to a financial crisis and the breakdown of your marriage.   In March 2008 your father died, in April 2008 you separated from your wife, and in June of the same year your business was destroyed by fire.  It is submitted that you were naïve and at the time of the offending did not fully appreciate the criminality of your actions, your judgment being affected by the stress you were under.

[14]     Both your counsel and, importantly, the pre-sentence report writer tell me that you are genuinely remorseful, and I accept that.

[15]     The report writer recommends community work as the appropriate sentence.

[16]     The report states:

An   electronically   monitored   sentence   was   canvassed   by   the   writer. However, given the nature of the offending and the fact that Mr L   is not seen as a threat to the community, a sentence of this  nature is  not considered suitable.

No rehabilitative needs were identified at interview, therefore a sentence to address rehabilitative needs is not recommended as it would serve no useful purpose.

Mr L   is unable to obtain a liquor licence with a conviction against his name.  Because of this he believes that his restaurant will almost certainly face financial ruin.  One could surmise that Mr L  ’s extreme financial pressure and emotional stress caused by this and the possibility of losing his stud farm could be adequate punishment in itself.  Given Mr L  ’s self reported financial situation a monetary penalty is not recommended.

In this instance a sentence of a punitive nature is deemed more appropriate. A sentence of Community Work is recommended.

[17]     For its part, the Crown submits home detention would be a more appropriate penalty, rather than community work.

[18]     I turn now to explain the sentencing decisions I have to make today.

[19]      First  and  foremost  I  must  apply  the  principles  and  purposes  of  the

Sentencing Act 2002.

[20]     In the case of blackmail the interests of denunciation and deterrence  are particularly important.  They have conventionally been said to dictate a sentence of imprisonment.  Blackmail has been described by another Judge in another case as an invidious and vicious offence.    It  represents an  attempt  to  undermine  our  legal system, because people apply threats to others to extort what they want rather than allow things to go through proper legal channels.

[21]     As you will have heard the lawyers say today, there is no accepted sentencing tariff for the offence of blackmail.  That is simply because the circumstances are so variable.

[22]     In R v Takao HC Rotorua, CRI-2004-087-002227, 22 April 2005, Keane J helpfully identified a number of factors that are relevant to sentence.  Those factors are:

i)the  relationship,  if  any,  between  the  blackmailer  and  the victim;

ii)       the threat underlying the demand;

iii)      the sum demanded;

iv)      how persistently the demand is made;

v)       whether the demand is successful;

vi)      the vulnerability of the victim to the demand;

vii)     the effect on the victim of the demand.

[23]     In this case there was a degree of persistence in the threats.  There was also an element of premeditation, and your victim was particularly vulnerable because of her post-traumatic stress disorder condition.

[24]     That, however, is tempered by other factors, namely:

i)this was a threat to disclose information rather than the more serious threat of violence;

ii)       it followed a relationship breakdown;

iii)      it was a threat that was known to the victim to be baseless;

iv)      there was no specific sum demanded.

[25]     I accept, having regard to those factors, that your offending is at the lower end of the blackmail spectrum.   In my view an appropriate starting point, before looking at mitigating factors relating to you personally, would be a short term of imprisonment, probably less than a year.

[26]     As regards mitigating factors relating to you personally, there is your good record  and  the  fact  that  your  guilty  plea  was  made  at  the  earliest  possible opportunity.

[27]     I also accept the way in which your counsel has characterised the offending in terms of your naiveté and being under stress.

[28]     Taking  all  matters  into  account  I  am  satisfied  that  as  in  R  v  Thomas CA138/05, 29 June 2005, this is one of those very exceptional cases where the purposes of sentencing can be achieved by a sentence of community work.

[29]     The Court of Appeal requires me, as a result of R v Hessell [2009] NZCA

450, to take the guilty plea into account in determining the length of a community- based sentence.

[30]     Because blackmail is a serious offence, I would have been inclined to impose the maximum of 400 hours’ community work.  On account of the guilty plea I am, however, prepared to discount that to 260 hours.   There will also be a reparation order that you pay your wife the sum of $5841.  Payment is to be made out of your share of the relationship property proceeds.

[31]     Alexander  Paton  Gibson  L  ,  you  are  convicted  of  the  charge  of blackmail.  You are sentenced to 260 hours’ community work and you are ordered to pay reparation in the sum of $5841 to the victim, that payment to be made out of your share of the relationship property proceeds.

Solicitors:

Crown Solicitor, Timaru

Dean & Associates, Oamaru