R v Lynch HC Invercargill CRI 2010-025-3014

[2010] NZHC 2321

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2010-025-3014

QUEEN

v

PHILLIP EVAN LYNCH

Hearing:         14 December 2010

Counsel:         S McKenzie for Crown

B Kilkelly for Prisoner

Sentencing:     14 December 2010

SENTENCING NOTES OF MILLER J

[1]      Mr Lynch you appear for sentence today on one charge of blackmail.

[2]      The facts are that on 17 August you texted your victim demanding that he pay you $10,000 and threatening to disclose private information to his family if the money was not paid.  Four texts were sent on that day.  He complained to the police, and on 20 August, using a cellphone, they posed as him and exchanged texts with you.  You continued to demand money;   you wanted $1,000 as an initial payment with a further $2,000 by the end of the month.

[3]      You arranged for the victim to put $1,000 into a letterbox on Ness Street, and at about 3.20pm on 20 August you did place an envelope into the mailbox as you had

requested.

R V PHILLIP EVAN LYNCH HC INV CRI 2010-025-3014  14 December 2010

[4]      A short time later your associate drove his vehicle to a nearby spot and dropped you off.  You cleared the letterbox and took the envelope and rejoined your associate.   You were then arrested.   You admitted sending the text messages but denied doing it for the money.

[5]      On the file are two recent pre-sentence reports.  The first records that you are aged 20 and live with your mother.  She clearly has done her best to give you a good upbringing  and  she  reports  that  she  has  never  witnessed  any  disrespectful  or antisocial behaviour on your part.   You retain her support.   I accept that, but of course what matters for present purposes is that that has not stopped your offending in the past.  You left school at 16 and you appear to have had an erratic employment history, partly because you have previously been imprisoned.  On 20 September this year you told the probation officer that you were attending a Certificate in Carpentry programme at the Southern Institute of Technology, and that was confirmed by your tutor.  That pre-sentence report which was prepared for some District Court charges, recommended home detention having regard to that course that you had begun. However, you are no longer on that course and that was the main reason for the home detention recommendation, which has now been withdrawn.

[6]      The second and supplementary report has been prepared for the blackmail charge.  It records that you express extreme remorse, but the police say there were co-offenders and you have refused to name them.  You claim however that you will not reoffend because you intend to change your associates.

[7]      You have a long conviction history for one so young, although there are no convictions for similar offending.   Your offences relate to disorderly behaviour, alcohol and driving, for the most part, although there are dishonesty offences for burglary.  You have a dismal record of compliance with community-based sentences.

[8]      The probation officer says you have limited insight, and it appeared to the probation officer that you were expressing remorse mostly in an attempt to get home detention.  My own reading of you is that that is a fair assessment.  Your reoffending risk is assessed as high.

[9]      As blackmail goes, this is a relatively minor offence.  There was planning and persistence over several days and you did go through with it, but it does not appear the victim was in any way vulnerable to the demand.  In his victim impact statement he makes it quite clear that you had your facts wrong.   He did not wait but immediately told his family and the police about the allegations.   A substantial amount of money was demanded, but none was paid.  You were not in any kind of position of trust with the victim;  he did not know you at all.

[10]     In the circumstances, I am going to adopt a starting point of nine months imprisonment having regard to a number of cases which I have considered and which I will reference in my sentencing notes.[1]   I note that it is less than the starting point sought by the Crown, indeed is less than Mr Kilkelly accepted was appropriate on your behalf.   But the cases cited by counsel are characterised by aggravating features, such as breach of trust, intimidation or harm to the victim, that are not

present here.   It is good luck on your part, but nonetheless it does dictate that the starting point should be low.

[1] R v Reij HC Christchurch CRI-2009-009-7335, 29 October 2009, R v Strange HC Christchurch

[11]     Your previous convictions are not of a similar kind, so I will not increase the starting point on account of them.  They do however, preclude any sentence short of imprisonment, when considered in conjunction with the nature of the offence and your record of non-compliance with previous sentences.

[12]     In mitigation, all you can point to is your guilty plea.  That was entered on 22

October.  I accept that was the earliest reasonable opportunity and you will get credit of 30 per cent for that.

[13]     Your sentence is six months imprisonment.

[14]     Stand down.

Miller J

Solicitors:

Preston Russell Law, Invercargill for Crown

McKenzie Gray, Invercargill for Prisoner

CRI-2009-069-671, 17 September 2009, R v Dyson HC Auckland CRI-2008-044-5176, 21 April
2009, R v Yardley HC New Plymouth CRI-2008-043-3521, 5 March 2009, R v Lala HC Auckland
CRI-2006-092-16442, 8 March 2007, R v Wilson HC Auckland CRI-2005-092-10253, 20 July

2006, R v Thomas CA138/05, 6 July 2005, R v Takao HC Rotorua CRI-2004-087-2227, 29 April

2005, R v Stehlin HC Gisborne CIV 2003-16-5474, 11 June 2004, R v Patterson CA228/96, 22
August 1996.