R v Menzies HC Hamilton CRI 2008-019-8012

[2010] NZHC 519

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE HIGH COURT OF NEW ZEALAND

HAMILTON REGISTRY

CRI-2008-019-8012

THE QUEEN

v

SHANE WALTER BLAIR MENZIES

Charges:Sexual violation by rape; Blackmail

Plea:               Guilty

Appearances:  Philip Crayton for Crown

Patrick O'Sullivan for Prisoner

Sentenced:     22 April 2010

Rape - 3 years 8 months imprisonment
Blackmail - 6 months imprisonment (terms concurrent)

SENTENCING NOTES OF HARRISON J

SOLICITORS

Almao Douch (Hamilton) for Crown

Patrick O'Sullivan (Taupiri) for Prisoner

R V MENZIES HC HAM CRI-2008-019-8012  22 April 2010

Introduction

[1]      Mr Menzies, you appear for sentence today following your pleas of guilty in this Court on 19 November 2009 to one charge of rape and one charge of blackmail. The rape conviction carries an eligibility to a maximum of 20 years imprisonment. The blackmail conviction makes you eligible for a total of 14 years imprisonment.

[2]      Just prior to sentencing earlier this month you instructed Mr O'Sullivan.  You engaged him to apply for an order granting leave to vacate your plea of guilty to the rape charge but not the blackmail charge.  I heard and dismissed that application this morning.   These  sentencing notes  are  to  be  read  where  appropriate  in  conjunction with that judgment.

[3]      Before attending to the formal parts of the sentencing process, I acknowledge the presence in Court today of your partner.   It is most important that you have her ongoing support and love.

[4]      I also acknowledge the quality of the oral argument that I have heard today both from Mr O'Sullivan and Mr Crayton.   As you heard me say to Mr O'Sullivan,

his submissions will make a difference to the end sentence.   The sentence which I

impose will be less than the one I might have fixed before coming into this Court as

a  result  of  what  he  has  said. But  I  want  to  emphasise  one  thing. You  will  be sentenced  to  a  term  of  imprisonment. Anything  less,  Mr Menzies,  would  be regarded  by  the  Crown  and,  I  suspect,  by  the  Court  of  Appeal  as  manifestly inadequate.

Facts

[5]      I will deal first with the facts.  Your offending is the result of your friendship with  Mr David  Malone. You  started  living  with  him  in  a  house  in  Hamilton  in March  2008.   You  knew  him  beforehand.   You  also  learned  that  Mr Malone  was involved   in   serious   criminal   offending. His   modus   operandi   was   to   target individuals  whom  he  would  then  threaten  or  intimidate  by  raising  the  prospect  of gang involvement.

[6]      In late May 2006 a vehicle owned by A was vandalised.  Mr Malone sent him

a  series  of  threatening  text  messages. He  pretended  to  be  a  member  of  a  gang demanding  payment  of  a  $2,000  debt.   The  messages  identified  Mr Malone  as  an intermediary; somebody through whom contact and payment could be made.   You became  involved  because  you  knew  monies  were  being  paid  by  A.   To  keep  you silent,  Mr Malone  made  you  payments  of  $150  and  $200. By  this  time  A  had separately paid $2,000 to Mr Malone.

[7]      On 30 June 2008, as part of this plan to intimidate A, Mr Malone asked you

to dress up in gang attire.  He asked you to give A a hiding.  You agreed.  A meeting was  arranged  between  you  and  A. You  were  wearing  blue  clothing  including  a bandana  and  a  hoodie.   As  A  approached  you,  he  was  protesting  in  words  to  the effect that there was no trouble.   He then started to retreat from you.   You walked faster towards him and yelled some slogan about the Black Power gang.   A beat a retreat.  Those are the circumstances giving rise to the blackmail charge.

[8]      In the meantime, on 20 June 2008 Mr Malone sent some text messages to the female  complainant.               He  had  obtained  her  number  from  the  phone  memory  of  a cellphone  held  by  A. Mr Malone  sent  the  female  complainant  a  series  of  text messages.   Their  effect  was  that  A  was  being  held  captive  by  the  Mongrel  Mob. Mr Malone instructed the female complainant that she was to have sexual intercourse with  him  if  she  wanted  to  ensure  A's  freedom.   As  outlined  to  you  in  Court  this morning, the female complainant travelled along with a companion to Hamilton on 25 June.

[9]      Mr Menzies, you were aware of what Mr Malone had been doing.  You knew how he operated through the medium of using texts to pretend a gang was involved. You  knew,  in  particular,  that  Mr Malone  had  used  that  sort  of  pretext  to  obtain sexual relations with other females.

[10]     When the particular complainant arrived at your address that night on 25 June you spoke with her.  You heard her describing the threatening texts, both to her and

A.   You heard her refer to the demand placed upon her to have sexual intercourse with Mr Malone if she was to save A's life.  She asked you whether they were true.

You answered affirmatively.   You left her in no doubt that her safety and security, and more importantly that of her friend, A, were at risk.  Your purpose was to make sure  the  complainant  took  Mr Malone's  threats  seriously. Afterwards  the  female complainant complied.  She had sexual intercourse with Mr Malone.  He has pleaded guilty to that charge of rape, among others.

Starting Point

[11]     Against that background, Mr Menzies, I must fix the starting point for your sentence.  The starting point is the term of imprisonment appropriate to reflect your blameworthiness.  It is limited to the circumstances of the offending.  In this case the starting point will be derived from the lead or serious offence, that of rape.  As you have heard both counsel say, the blackmailing offending will be taken into account subsequently  in  an  adjustment  to  the  starting  point  to  reflect  the  totality  of  the offending.   But  you  must  know  that  the  sentences  that  will  ultimately be  imposed will  be  concurrent;  that  is,  side  by  side,  not  additional  to  each  other. Once  the starting point is fixed it is appropriate to take into account personal circumstances, where good or bad.

[12]     Identification of the starting point in this case, as you heard me point out to

Mr O'Sullivan, presents some difficulties.   Normally it would be fixed by reference

to the starting point adopted when Mr Malone was sentenced. However, as you know, he pleaded guilty to a number of offences including four of rape, three of threatening to  kill,  six  of  blackmail,  two  of  arson,  and  one  of  aggravated  robbery. Potter J adopted a final adjusted starting point of 21 years imprisonment.[1]    The lead

[1] R v Malone, HC Hamilton, CRI-2007-019-9642, 30 October 2009.

or index offence was one of the rape  charges,  not  the  one  in  which  you  were

involved. On that charge the Judge, in accordance with the guidelines as they then stood, applied the base starting point of eight years.  She uplifted it by three years to take account of aggravating features including prolonged detention, frightening and degrading circumstances, and actual violence. Mr Malone was an  unattractive

individual.  On that basis she reached an  adjusted  starting  point  of  11 years.  She

then adjusted the starting point upwards to 14 years to take account of each of the three other rapes including the one to which you pleaded guilty as a party.

[13]     Mr Menzies, I accept that you are in a totally different league from Mr Malone.  I will not be adopting the same approach as Potter J when she sentenced him.   Quite understandably, Potter J did not fix a discrete or separate starting point

for  the  offence  for  which  you  have  pleaded  guilty.   It  was  one  of  the  lesser  rape charges which served to increase the starting point by a year.   So, as you heard me say to Mr O'Sullivan, I must start afresh.

[14]     The approach I will adopt is as if I was sentencing Mr Malone for the offence

of rape to which you have pleaded guilty.   I am able to use the Judge's sentencing notes and adopt her description of the relevant circumstances:

[46]     As in the case of the victim N, the prisoner obtained the telephone number for F from the victim H’s telephone.  The prisoner was unknown to

F. Initially the  prisoner  sent  F  a  series  of  text  messages  implying  that  he

would like to have a relationship with her.   She responded that she was not interested.  Between 20 June and 26 June 2008 the prisoner sent F a series of text  messages  portraying  himself  as  a  member  of  the  Black  Power  gang. These messages were sent from a telephone number unknown to the victim. The text messages represented to F that her friend, the victim H, was being held captive against his will by the Mongrel Mob gang.  They advised F that she  had to  have  sexual  intercourse  with the  prisoner to  obtain information that would help her release H from captivity.  The messages threatened that if she failed to comply with the instructions both she and H would be killed. She  believed  that  the  lives  of  herself  and  H  were in danger  if  she  did  not comply with the instructions or if she went to the Police.

[47]     She  agreed  to  travel  from  Tauranga  to  Hamilton  with  a  friend  to meet up with the prisoner to have sexual intercourse with him.  She met him and some associates outside his parents’ address.  He took her to a garage at his parents’ home which was used as a bedroom.  He told her that he would protect  her  and  could  help  her  and  H  get  out  of  trouble.    F  advised  the prisoner that she did not want to have sex and she was only doing it because she had to.  The prisoner proceeded to have sexual intercourse with her.

[48]     When spoken to by the Police in August 2008, the prisoner admitted sending the messages to F and having sexual intercourse with her.   He said that  he  and  his  associates  had  planned to  video  the  sexual intercourse  and had intended to use it for commercial purposes.

[15]     If  I was sentencing Mr Malone as the primary offender on that rape charge alone I would adopt a starting point  within  what  is  called  band  one  of  the  new

guidelines that came into effect on 31 March 2010.[2]    That band is between six and eight years. I accept that what was present here was an element of premeditation and threat. But those factors are inherent in the offending itself. Also particular account must be taken of the effect or impact on the victim. You have attempted, when speaking with the probation officer and others, to diminish that feature. I have read

the complainant's victim impact statement with some care.  It leaves me in no doubt that   she   has   suffered   severe   emotional   trauma   as   a   result   of   Mr Malone's manipulation and treatment of her.  She refers to experiencing suicidal consequences some months afterwards.

[2] R v AM (CA27/2009) [2010] NZCA 114 at [93]-[97].

[16]     On that basis, Mr Menzies, I am satisfied that the appropriate starting point

for Mr Malone's primary offending would be eight years, which is very close to that accepted by both counsel. I must then consider your role. Mr Crayton accepts that you are entitled to a substantial discount because you were a secondary party. In my judgment you were at the lower end of the spectrum of culpability or blameworthiness. But  your  role  was  important  because, with knowledge of what Mr Malone was doing, you made the complainant take his threats seriously. As you heard Mr Crayton say, it was within your  hands  to  clarify  the  situation  and to confirm to her that Mr Malone's texts were an artifice or a rouse. You had the power

to save her from an unfortunate combination of Mr Malone's threatening behaviour and her remarkable gullibility.  You did not.  Instead you turned on the switch.

[17]     On that basis I cannot accept Mr O'Sullivan's submission that it is impossible

to envisage a rape case where the offender's culpability could be less.  Mr Crayton is right.   Words  can  have  the  same  effect  as  physical  actions.   You  now  know  what effect  they  had  on  this  complainant.  Your  culpability,  while  much  less  than Mr Malone, is nevertheless serious.

[18]     Mr Crayton submits that the maximum  discount  to  be  allowed  for  your secondary participation is 30%; that is, a discount against Mr Malone's starting point

of  eight  years.  I  have  thought  carefully  about  that  submission. Ultimately, Mr Menzies, I conclude it would be appropriate to give you a discount of 50%.   In

the result the  starting point  I adopt  for  you  on the rape  charge is four years. The

Court of Appeal in its recent guideline judgment acknowledged that a Judge may go outside, that is below, the minimum sentencing band of six to eight years for a particular offender.[3]  I am taking that course in your case. I repeat, the starting point

is reduced to four years.  The Court of Appeal directed a Judge when taking that step

to give reasons.   I have attempted to do so.   You are aware that this is an unusual course.  In normal circumstances you would be at much greater risk.

[3] R v AM (CA27/2009), above n 2, at [83].

[19]     In additional to that four year base starting point, the totality of the sentence must  reflect  the  blackmail  offending. Mr Crayton  is  right. It  was  serious.    It involved a course of conduct in which you were complicit. Very fairly, though, he accepts  that  the  uplift  might  be  less  than  12 months. I  agree  with  Mr O'Sullivan. The  comparative  is  the  sentence  imposed  on  Mr Malone. Potter J  increased  the starting point by 12 months for four separate acts of blackmail.   In my judgment an appropriate uplift for you is six months.

[20]     The finally adjusted starting point is four-and-a-half years imprisonment.

Personal circumstances

[21]     I now come to personal circumstances.   In its recent guideline judgment, the Court of Appeal emphasised that Judges when sentencing in this area must still take into account personal mitigating factors.[4]

[4] Ibid, at [84].

[22]     You  are  23  years  of  age.   You  are  in  a  stable  relationship.   You  and  your partner have an infant son.  You have employment as a plasterer.  You are very well regarded by your employer.   I have been impressed by the reference he has written on your behalf.

[23]     There is one other unusual feature of this case.   It was properly emphasised

by Mr O'Sullivan and accepted by Mr Crayton.  The complainant made no complaint

to the police about your participation in her rape that evening by Mr Malone.  Instead you incriminated yourself by an honest and open statement to the police officers.  It

is a reflection of your naïveté, as Mr O'Sullivan said.  Whatever is the case, you are entitled to a particular credit for that factor as well.

[24]     In my judgment  your personal circumstances warrant a  reduction from that starting point of four-and-a-half years down to four years imprisonment.

[25]     Finally,  there  are  your  pleas  of  guilty. They normally reflect two things. First  and  foremost  is  the  saving  to  the  state  and  the  complainant  from  having  to conduct and appear at a criminal trial. That is particularly burdensome in a sexual offence.  Second, pleas of guilty also reflect remorse and contrition.

[26]     The  complicating  feature  is  your  unsuccessful  attempt  to  have  this  Court vacate  your  pleas  of  guilty. What  it  means  is  this. The  first  factor  I  referred  to remains.  The state is spared the cost and the resources of a trial; the complainant is spared the trauma of giving evidence.   However, the application for change of plea removes or eliminates the second element of your contrition or remorse, and that is consistent,  Mr Menzies,  with  the  careful  report  provided  by  the  probation  officer. The officer says  you have little, if any, insight into your offending.   You diminish what you did.  You tend to pass all the blame to Mr Malone and to the complainant.

[27]     You will be entitled to a discount for your  guilty  pleas  but  it  will  be significantly less than it would have been if you had not applied to change your plea. Those words are not spoken as a means of punishment but to recognise the reality.

In the circumstances you are entitled to a further reduction of four months for your plea of guilty.  The final sentence is one of three years, eight months on the charge of rape, and six months on the charge of blackmail.   Both sentences are to be served concurrently.

[28]     Before you stand down, Mr Menzies, I can  say  that  this  sentencing  has caused me a great deal of thought and  anxiety. You should  never be before this Court on charges of such severity.  You are here because of your gullibility and the ease with which you were influenced by Mr Malone.   You must learn a lesson and pay a high price for that folly.  But you are still a young man.  If you use your time

in prison well, as I am confident that you are capable of doing, you have the potential

to resume life as a responsible and law abiding member of the community.   If you

take that opportunity, I wish you well.  Please stand down.

Rhys Harrison J