R v Lal HC Auckland CRI-2009-004-5813

[2011] NZHC 327

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-004-5813

THE QUEEN

v

JESHAL JASVIN LAL

Hearing:         20 April 2011

Appearances: Mr I M Brookie for Crown

Mr C Tregonning and Mr H Retzlaff for Prisoner

Judgment:      20 April 2011

SENTENCING REMARKS OF LANG J

R V LAL HC AK CRI-2009-004-5813 20 April 2011

[1]      You appear for sentence having been found guilty by a jury on a charge of blackmail. The maximum sentence for that offence is 14 years imprisonment.

The facts

[2]      The charge arises out of a relationship that you had with a person who was known to your wider group of acquaintances.  It appears that you met her through your acquaintances at an educational institute.  You then began seeing each other as part  of  the  larger  group.    Eventually  a  closer  relationship  developed,  and  the evidence suggests that you were involved in a very brief sexual relationship with the complainant.

[3]      A short time after that, you and she became involved in an exchange of text messages that led to the charge against you.  The critical messages were sent in the evidence of 16 September 2008 in the early hours, and also the following day.  In short, the complainant told you in these text messages that she wanted to finish the relationship because she felt that you were not committed to it, and that you were interested in other matters.  You responded by saying, or implying, that you had in your possession photographs that you had taken, presumably on your mobile phone, of the complainant involved in sexual activity.

[4]      She immediately responded by saying that you were sick and that she was disgusted by what you were saying.  You then increased the tempo of what you were telling her.  You told her that if she did not resume sexual activity with you, you would disclose the photographs that you held.  The implication to be taken from the text messages is that you said that you would arrange for her parents and friends to see them, and that you would also publish them on a website.  This, too, provoked expressions of outrage from the complainant.

[5]      The first series of messages finished in the early hours of the morning.  You then resumed the text messages the next day.  Had the episode the previous evening been provoked perhaps by alcohol you had consumed the previous evening, one would expect you to have changed  your tone in the morning.   You carried on, however, to continue to press demands on her to engage in sexual activity with you.

Thankfully, she cut the exchange short.  Shortly after that she disclosed exactly what you had done to her parents and subsequently to the police.

Sentencing Act 2002

[6]      In sentencing you I need to have regard to the purposes and principles of sentencing  set  out  in  our  Sentencing Act  2002.    Several  of  these  come  to  the forefront in this kind of offending.  Blackmail has always been seen as a particularly pernicious form of offending because it preys on peoples vulnerabilities.   That is particularly the case where, as here, you threatened to expose to the world at large the private activities of a young person.  The fact that your demands were for sexual activity adds to the gravity of your offending.

[7]      This means that the principles and purposes that need to be to the forefront in the sentence that the Court imposes are those of deterrence and denunciation.  You, and others who might be tempted to engage in this kind of activity have to know that, if you are caught, serious consequences will follow.  You have to understand that you are accountable for what you did to your victim.

[8]      I  do  not  have  information,  as  I  would  normally  have,  from  the  victim indicating whether the offending has had long-lasting effects for her.  She has now left New Zealand and declined to participate in the criminal proceedings that the police brought against you. I take her reaction to be that which she expressed at the time that she received the emails.  She was sickened by what you were doing and she was no doubt extremely concerned that you would make good on your threat.  Any person faced with that threat would have very serious concerns about what was likely to happen.   I therefore proceed on the basis that, although I do not have information from the complainant, it is highly likely that she would  have been traumatised to a large degree by what you did.

[9]      Counsel have referred me to a number of authorities involving blackmail. These are R v Takao[1]; R v Dyson[2]; R v Thomas[3]; R v Lynch[4] and R v Milne[5].  Some of these have some similarities to your case, but of course, every case is very different.

[1] HC Rotorua CRI 2004-087-2227, 29 April 2005

[2] HC Auckland CRI 2008-044-5176, 21 April 2009

[3] CA138/05 6 July 2005

[4] HC Invercargill CRI 2010-025-3014 14 December 2010

[5] HC Nelson CRI 2010-042-1429 22 July 2010

[10]     In Thomas the threats that were made were not entirely dissimilar to the threats that you made.  However, the object of the offender in that case was to obtain a small sum of money from the complainant.  On that basis the seriousness of that case is less than your culpability.   The Court of Appeal in that case quashed a sentence of six months imprisonment following a plea of guilty and imposed in its place a sentence of 200 hours community work.

[11]     Earlier cases demonstrate that sentences of imprisonment were inevitable on charges  of  blackmail.     As  the  authorities  that  counsel  have  referred  to  me demonstrate, that is not now the case.   The introduction of sentences short of imprisonment has seen a wide variety of sentences imposed for that charge.

[12]     As I said, I take your offending to be more serious than that in Thomas.  Both counsel agree that the starting point in your case is somewhere around nine months imprisonment.  I consider that the nature of the threat that you made, coupled with the object that you were seeking to achieve, means that the starting point needs to be a little higher than that.  I do not accept for a moment that you were joking or not serious when you sent the text messages.  Had that been the case, you would surely have desisted and not sent a further series of text messages the next day.  For that

reason I select a starting point of ten months imprisonment in your case.

[13]     You are 24 years of age now and you were 21 years of age at the time of your offending.  You have no previous convictions at all.   For that reason there are no aggravating factors that operate to increase the starting point that I have selected.

Mitigating factors

[14]     I now need to consider whether mitigating factors personal to you should reduce the sentence that I have selected.  I do not propose to give you any credit for remorse.   I do not consider that you are truly remorseful, and I consider that your professed remorse relates largely to your own present predicament.

[15]     I accept, however, that up until now you have been a highly worthwhile member of our community.   You have obtained worthwhile tertiary qualifications. You have provided me with some impressive references.  In all other respects you appear to be a person who has an entirely worthwhile part to play in our community.

[16]     I consider that somebody who appears for the first time with absolutely no previous convictions in the manner that you present is entitled to some small credit for that.  I therefore propose to reduce the starting point that I have selected by one month to reflect that fact.  This means that I am left with an end sentence, should imprisonment be the appropriate form of sentence, of nine months imprisonment.

Home detention

[17]     The real issue, as both counsel have emphasised, is whether I should impose a sentence of home detention.  I am able to do that because your end sentence is one of less than two years imprisonment.

[18]     Some factors point against home detention.   The seriousness of the charge certainly  points  towards  a  sentence  of  imprisonment.     Having  said  that,  the authorities make it clear that the seriousness of a charge is not necessarily a determinative factor.

[19]     In the end I consider that the purposes and principles of sentencing can be met by a sentence short of imprisonment.  I bear in mind the fact that the Sentencing At  2002  requires  me to  impose the least  restrictive outcome appropriate in  the circumstances, and that I must impose a sentence that assists the rehabilitation and reintegration of the offender into the community.

[20]     I bear in mind in this regard your prior good record and the fact that you have many worthwhile attributes that should serve you well in the future.   For those reasons I accept the submissions of your counsel that a sentence of home detention is appropriate.

Sentence

[21]     You are now sentenced  to five months home detention on the following conditions:

(a)      You  are  to  travel  directly  to  139  Barrack  Road,  Mt  Wellington, Auckland and you are to remain there pending the arrival of a probation officer and an officer of the electronic monitoring company.

(b)You are to remain at that address at all times unless specifically authorised to leave by your probation officer.

(c)      You  are  to  abstain  from  the  consumption  of  alcohol  and  non- prescription drugs throughout the term of your sentence.

(d)You  are  to  attend  such  counselling  as  may  be  directed  by  your probation officer.

[22]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Auckland

Public Defence Service, Auckland