R v Nightingale
[2013] NZHC 877
•12 April 2013
PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT
1985
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2012-079-434 [2013] NZHC 877
THE QUEEN
v
BRADLEY STEPHEN NIGHTINGALE
Hearing: 12 April 2013
Counsel: J N Foster for Crown
C Horsley for Accused
Judgment: 12 April 2013
SENTENCING NOTES OF KATZ J
`
Solicitors: Crown Solicitor, Hamilton – [email protected]
Adams & Horsley, Tauranga – [email protected]
R V NIGHTINGALE HC HAM CRI-2012-079-434 [12 April 2013]
Introduction
[1] Mr Nightingale, you appear before me today for sentencing on one charge of blackmail,1 which carries a maximum penalty of 14 years’ imprisonment.2 On
7 February 2013, I gave you a sentence indication following which you pleaded guilty. Since then I have received and considered your pre-sentence report. Nothing new has come to light which has caused me to alter my view that a community-based sentence is appropriate in your case. However, it is necessary for me this morning to repeat some of what I said to you at the time of the sentence indication, as to how I have reached my final view as to an appropriate sentence.
Facts
[2] Between 14 May 2012 and 23 May 2012, you sent six text messages to the complainant’s cellphone. The complainant was the employer of your partner. The background to your messages was that you were upset about alleged inappropriate text messages sent by the complainant to your partner.
[3] The overall tenor of your text messages was that if the complainant did not pay you $5,000 and give your partner “a good pay rise,” you would disclose the alleged harassment and/or the content of the complainant’s text messages to his wife, employer and work colleagues.
[4] The complainant has provided the Court with a statement as to the impact of your offending on him. He details the emotional impact of your offending which he says means that he no longer trusts anyone. He fears that people associated with you will come over to his house and threaten him and his wife.
[5] At the time you sent the text messages you were on bail and awaiting sentencing for a charge of cultivating cannabis. Subsequently, on
27 September 2012, you were sentenced to 12 months’ home detention and
1 Crimes Act 1961, s 237(1).
2 Ibid, s 238.
300 hours of community service in relation to the cannabis offending.3 Your remaining convictions are for relatively minor matters.
[6] You are now just over halfway through your current home detention sentence and I was informed this morning that you have served all but 38 hours of the sentence of community work previously imposed on you.
Starting Point
[7] The Crown originally, at the time of the sentence indication, proposed a starting point in the vicinity of 15-18 months’ imprisonment. Your lawyer suggested a community-based sentence.
[8] There is no tariff case for blackmail, but Keane J usefully summarised the factors to be taken into account when determining the relevant sentence for blackmail in a case called R v Takao.4
[9] Taking into account those factors and the submissions previously made by counsel, the key aggravating elements of your offending are the degree of premeditation and repetition involved, the high degree of pressure you put on the complainant by threatening both the complainant’s marriage and livelihood, the sum of money demanded and the associated demand for a pay rise for your partner. Further, your offending occurred while you were already on bail.
[10] I accept that you were fuelled by the anger of believing that the complainant was sexually harassing your partner. That warrants some mitigation, although your response was clearly disproportionate to the situation you were confronted with.
[11] In R v Patterson5 the Court of Appeal observed that extortion or blackmail has always been regarded as a particularly serious offence and that:
The ... cases of demanding money under a threat to expose or accuse the victim almost invariably are treated seriously and will often attract a
3 Imposed by Venning J in R v Nightingale [2012] NZHC 2515.
4 R v Takao HC Rotorua CRI-2004-087-2227, 29 April 2005 at [22].
5 R v Patterson CA228/96, 22 August 1996.
sentence of three years’ imprisonment even where there is substantial mitigation.
[12] The Crown also referred me at the time of the sentence indication to the decision of R v Jefferys.6 In that case the Judge took a two year starting point. With a four-month guilty plea discount, the offender was sentenced to home detention.
[13] In Jefferys the amount demanded was significantly more than in your case, however. There is also some element of mitigation in your offending as I have discussed. However, the Jefferys case lacked the persistence of your offending.
[14] Your lawyer referred me to several cases previously in his written submissions where community-based sentences were imposed. I have read those cases. The two cases which appear to be closest to your case are R v Thomas7 and R v Nichols.8
[15] In R v Thomas the appellant was sentenced to six months’ imprisonment for threatening to post intimate photos and video of his former girlfriend on the internet unless she agreed to pay half his traffic fines in accordance with a previous agreement between them. The Court of Appeal found that the appellant was a “young” 18 year old who did not necessarily realise his actions constituted blackmail. He was of previously good character. A sentence of 200 hours community work was substituted for a six month prison term.
[16] In R v Nicholls, the 18 year old accused threatened to release nude photos of the complainant, who he had befriended on a social networking site, if she did not have sex with him. A sentence of 12 months’ supervision was imposed with a special condition that the accused undertake assessment by a psychologist. In addition 200 hours of community work was imposed.
[17] As you aware, my initial view was that a suitable penalty in this case could well be a sentence of home detention. However, I was faced with the difficulty that
you are already serving a sentence of 12 months’ home detention, of which you had
6 R v Jefferys HC Rotorua CRI-2009-070-5635, 4 June 2010 per Potter J.
7 R v Thomas CA 138/05, 6 July 2005.
8 R v Nicholls [2012] NZHC 1334, 13 June 2013.
served a little over four months at the time of the sentence indication. You have now served just over six months. I cannot impose a further term of home detention on you as you are already serving the maximum period allowed by statute. A concurrent term is possible, but on its own that would not reflect the gravity of your offending. That leaves me with the options of either sentencing you to imprisonment or a community-based sentence.
[18] Your offending is serious. Blackmail is not an offence that the Court can or should take lightly. Society rightly looks on such offending with contempt. It is important that I denounce your conduct and deter others who might be tempted to engage in the same type of behaviour. On the other hand, you are relatively young (at
22) and your offending indicates a lack of impulse control and maturity. It was prompted by anger at what you perceived as sexual harassment of your girlfriend by her employer. Although there were a number of threatening messages only one of them involved an express demand for money. You are very far from a hardened criminal. Sending you to prison would expose you to undesirable influences and would likely undermine the prospects of your rehabilitation.
[19] The unfortunate reality is that with modern forms of communication such as texting it is now much easier for people to make threats and demands without really thinking through the serious consequences of such conduct. The very ease of communication through texting and social media and its prevalence in our society has sparked a rise in cyber bullying and similar types of offending. Your offending is a much more serious form of this type of behaviour.
[20] In my view it is highly unlikely that you would have written a letter demanding money from the complainant and posted it to him or left it in his letterbox. Even taking into account your immaturity I think you would have appreciated the seriousness of such actions and resisted the urge to follow such a course. However, you were unable to exercise the same restraint in relation to sending text messages. At the time of sending the texts you simply failed to appreciate how serious your behaviour was, although you are obviously well aware of that now.
[21] Your pre-sentence report notes that you regret your actions and that they were simply done in the heat of the moment. Your probation officer confirms that it simply never occurred to you that your actions could constitute blackmail.
[22] I accept, therefore, that this is not a case of cold-blooded and calculated extortion primarily driven by financial gain. Rather, your actions were stupid, immature and ill-considered, driven in large part by your loyalty to your partner and your belief that the complainant had behaved inappropriately towards her. However, nothing the complainant did can justify your response. Any grievance you had should have been pursued through proper channels.
[23] Taking all of these factors into account I have decided to give you the benefit of the doubt and sentence you to a community-based sentence.
Community Work
[24] As previously indicated, I am going to impose a sentence of community work upon you. It is necessary to give some brief details as to the mechanics of how I have approached that sentence, given that you are already serving a term of community work.
[25] Section 57(2A) of the Sentencing Act 2002 provides that:
If a court directs that sentences of community work be served cumulatively (whether or not the sentences are imposed at the same time), the total term of the sentences must not be more than 400 hours.
[26] The prohibition under s 57(2A) relates to cumulative sentences only (not concurrent sentences). The policy of the section appears to be that Parliament did not want offenders facing the prospect of having more than 400 hours of community work ahead of them at any given time.
[27] In relation to concurrent sentences, section 58(3) of the Sentencing Act provides:
(3) Any work done by an offender under a sentence of community work must be treated as having been done under that sentence and under any and each other concurrent sentence of community work that the offender was subject to at the time that the work was done.
[28] Therefore, imposing a concurrent sentence of community work upon you would meant that each hour of community work you complete going forwards will count towards both your existing sentence of community work and your new sentence. However, upon the completion of your existing sentence of community work you will still have to serve the remaining hours of the new sentence.
[29] In other words, my reading of s 58(3) is that when serving subsequently imposed concurrent sentences of community work, you will only be given prospective credit – that is looking forwards – for the completion of hours of community work, not retrospective credit – that is looking backwards. In the present case you have completed 262 hours of your original sentence of 300 hours of community work, leaving you with 38 hours still to complete. If I were to impose a concurrent sentence of 338 hours, then under s 58(3) you would not get credit for the full 262 hours you have already served. You would not get credit in your second sentence for the time you have already served as you were not “subject to” the second sentence when that work was done. Rather, only the 38 hours you have left to serve would count towards both of your current sentences, following which you would still have 300 hours left to complete in respect of the second sentence.
Result
[30] Mr Nightingale please stand. I sentence you to a term of 338 hours’ community work. As I have outlined, that will leave you with an effective end sentence of 300 hours remaining to be served once your existing sentence of community work has been completed.
[31] Although the Crown originally, at the time of the sentence indication, urged me to also impose a concurrent sentence of home detention, I have decided not to do so as it would have no practical effect. The Crown expressed some concern at that time that a sentence of 300 hours community work might set too lenient a precedent for future cases. However, it will be apparent to any court which may refer to these sentencing notes in the future, that if a sentence of home detention had been available to me I would likely have imposed it. On the particular facts of your case that was not possible.
[32] Finally, I suppress the name and any identifying details of the complainant in
this matter. You may stand down.
Katz J
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