R v Nightingale - [2013] NZHC 877

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 – inf@almaodouch.co.nz
Adams & Horsley, Tauranga – admin@adamshorsley.co.nz

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Nightingale

Details

AGLC: R v Nightingale [2013] NZHC 877
Case: [2013] NZHC 877
Decision Date: 12 April 2013

CaseChat Overview and Summary

In the matter of The Queen v Bradley Stephen Nightingale, the defendant was charged with one count of blackmail, an offence carrying a maximum penalty of 14 years’ imprisonment. The case was heard in the High Court of New Zealand, Hamilton Registry, with sentencing notes provided by Katz J on 12 April 2013. The defendant had sent six text messages to the complainant, his partner’s employer, demanding $5,000 and a pay rise for his partner, threatening to expose the complainant if his demands were not met. The complainant reported the emotional impact of the defendant's actions, including loss of trust and fear of future harassment. The defendant was already on bail and awaiting sentencing for cultivating cannabis at the time of the blackmail offence.

The legal issues the court had to decide included determining the appropriate starting point for sentencing, taking into account the defendant's premeditation, the pressure exerted on the complainant, and the defendant's prior criminal history. Katz J considered the defendant's belief that the complainant had sexually harassed his partner as a mitigating factor, although acknowledging that the defendant's response was disproportionate. The court also examined relevant precedents to assess the appropriate sentence, balancing the seriousness of the blackmail offence against the defendant's youth, immaturity, and lack of a hardened criminal record.

Katz J concluded that a community-based sentence was appropriate, despite the Crown's initial proposal for a custodial sentence. The court determined that the defendant's actions, though serious, were driven by immaturity and anger rather than cold-blooded financial gain. Katz J imposed a sentence of 338 hours of community work, noting that this would leave the defendant with 300 hours remaining to serve after completing his existing community work sentence. The court also decided against imposing a concurrent sentence of home detention, as it would have no practical effect given the defendant's current sentence of home detention. The identity of the complainant was suppressed under the Criminal Justice Act 1985.

Orders