R v R HC Auckland CRI 2005-44-2240

[2006] NZHC 498

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-44-2240

THE QUEEN

v

R

Hearing:         12 May 2006

Counsel:        MA Corlett for the Crown

PJ Kaye for the Prisoner

Judgment:      12 May 2006

SENTENCING NOTES OF RODNEY HANSEN J

Solicitors:       Meredith Connell, P O Box 2213, Auckland for the Crown

Mr PJ Kaye, P O Box 941, Auckland for the Prisoner

R V R HC AK CRI 2005-44-2240  12 May 2006

[1]      Mr R  , you appear for sentence, having been found guilty by a jury on charges of kidnapping and aggravated assault.   You were acquitted on a charge of blackmail.   Before I say anything more, Mr R  , let me indicate to you at the outset that I do not intend to impose a sentence of imprisonment.

The facts

[2]      The facts underlying these charges, as I deduced them from the evidence, are as follows.  The complainant, Stuart Chilman, was in a business partnership with a friend of yours, Ross Smith.  The partnership did not last long.  The partners fell out after a matter of weeks.  Mr Smith claimed he was owed his investment of $80,000 and an interest-free loan of $70,000.  He obtained judgment for the loan.

[3]      Mr Smith, who gave evidence on your behalf and who I notice here in Court today, said he was frustrated and exhausted pursuing Mr Chilman for redress.   He asked you to assist.  He said he paid you an up-front fee of $5,000 and agreed to pay a further 5% of any money recovered.

[4]      You and two associates went to Mr Chilman’s business premises on 5 April

2005.  You asked to speak to Mr Chilman in private and went with him into a room at  the  back  of the  premises  which  was  used  as  a  lunchroom.    After  an  initial discussion, Mr Chilman rang his lawyer who told him that you and your associates were, to  use his words, “just thugs” and had  no  right  to  be there.   He  advised Mr Chilman to call the police.   According to Mr Chilman, whose evidence in this respect  the  jury obviously  accepted,  when  he  attempted to  call the  police,  you grabbed the cellphone and threw it to the floor.  You then took him in some sort of headlock, pushed his head down onto the table and administered a backhanded blow to his right cheek with sufficient force to cause him to fall off his chair and onto the floor. Shortly afterwards the door was closed either by you or one of your associates who had come to the door when the altercation occurred.

[5]      You told Mr Chilman that you wanted vehicles and cash.  According to him, you also made some reference to knowing his home address.   He said that  you conveyed to him very clearly that he could not leave the room until you agreed. Eventually he agreed to  meet  you the following day.    As soon as you  left,  he contacted the police who arrested you when you met him the following day.

[6]      The jury’s verdict makes it plain that jurors were not convinced that you had threatened  to  harm Mr  Chilman’s wife and  children  but  that  you  had,  by  your violence and threats of violence, detained him against his will and assaulted him in order to achieve that.

Victim impact report

[7]      In  the  victim  impact  report  Mr  Chilman  says  he  sustained  only  minor swelling and redness to his cheek as a result of the assault.   That confirmed the evidence he gave in Court.  But he says in the report that fear of further approaches frightened him into abandoning his business and moving overseas four days afterwards.  He says he is too fearful to return.  He claims to have lost $700,000 as a result and says that the stress brought on a heart attack.

[8]      I agree with Mr Kaye that much of what he says seems to stem from fears arising from the alleged threats to harm his family which were not found proved by the jury.  I also note Mr Corlett’s submission that this aspect of the report should be approached with caution.  I accept that other factors seem likely to have influenced Mr Chilman’s decision to leave New Zealand.  I certainly do not attribute to you, for the purpose of sentencing, the consequences that are set out in the victim impact report.

Sentencing purposes

[9]      I  am obliged  to  make  just  some brief comments,  Mr  R  ,  as to  the purposes of sentencing  in a case such as this and the principles which underlie sentencing.   There is agreement between counsel that the principal purposes are:

holding  you accountable  for what  you have done; promoting  in  you  a  sense  of responsibility for what you have done and acknowledging your actions; recognising the interests of the victim; and deterring you and others from committing similar offending.

[10]     The major or important principles underlying sentence are: the seriousness of the offence; the impact on the victim; and there is always present in these cases the desirability of achieving some reasonable consistency in sentencing for offending of a similar nature and gravity.

Aggravating factors

[11]     The Crown has identified as particular aggravating factors of the offending: the level of violence; the harm done to Mr Chilman; and the level of premeditation. I have already commented on the harm done to the victim.  The other factors, as I think Mr Corlett accepts, are necessary incidents of offending of this kind and do not really take it, in my view, into a more serious category.

Mitigating factors

[12]     As Mr Kaye accepted, there are no real mitigating factors.   But the pre- sentence  report  conveys  some  very  positive  messages  about  you  personally, messages that have been strongly and eloquently reinforced for me this morning in the address I heard from your brother-in-law, Mr Charles Hohia.

Personal circumstances

[13]     You are a 49-year-old  man.   You have been  living  in  a  stable domestic relationship for the last 11 years.  Your partner is present in Court this morning and, I am told, is totally supportive of you.  You have two adult children from a former relationship, one of whom works for you as I understand it.  You are a self-employed businessman working in the light construction industry and doing civil engineering

work as well.   You have provided to the probation officer, and I have read, some high complimentary references from your business associates.

[14]     You have acknowledged that you were, for 20 odd years, a member of the Hells Angles Motorcycle Club but you resigned some six months ago.  As a young man you were involved in some moderately serious offending which attracted some relatively short custodial sentences but in the last 30 years you have been before the Court mainly for driving offences and, since 1988, not at all.

[15]     You  are  assessed  at  low  risk  of  offending.    You  have  attributed  your offending to an inability to control your anger.   You have, on your own initiative, approached a local anger management group for an assessment and that has been confirmed in the letter handed up to me by Mr Kaye this morning.

[16]     I have, as I have said, heard an eloquent, heartfelt and fulsome tribute from your brother-in-law this morning.   It is very clear to me that you play a full and important role in your extended family - your whanau - and, in particular, you play a full part in caring for your disabled brother.

Sentencing principles

[17]     Both counsel have acknowledged that the charge of kidnapping, which is the most serious of the two offences of which you were convicted and therefore what we call the lead charge for sentencing purposes, is a charge in which the circumstances can vary widely and, for that reason, there is no established tariff for sentencing purposes.  Everything depends on the circumstances of the particular case.

[18]     In cases where the period of detention is relatively short and the associated violence minimal, the cases suggest that a short period of imprisonment or a community-based sentence is appropriate.  I will just mention quickly some of the cases  that  have  been  mentioned  to  me  for  reference  purposes:  R  v  Greaves (CA101/88,  1  June  1988);  R  v  McIntosh  (CA449/93,  3  November  1993);  R  v Newlove  (1993)  11  CRNZ  560;  R  v  Rawiri  (High  Court,  Auckland,  S18/94,

15 March 1994, Hammond J); and another case which my own researches  have

recovered, R v Takao (CA379/03, 15 November 2004) where a sentence of 150 hours  community  work  was  imposed  for  a  relatively  low  level  offence  of kidnapping.

[19]     As I have indicated, these cases confirm my own thinking.  Although the use of stand-over tactics such as you engaged in is to be deplored and is deserving of a stern response by the Courts, I  am satisfied that  the offending  in this case can appropriately be met by a community-based sentence.  I agree with Mr Kaye that a prison sentence, even a short prison sentence, would be disruptive, would not in any way assist your rehabilitation and, in the broader sense, would not, in my view, accord with the public interest.

[20]     Any doubts that I might have had on that score are really resolved in your favour by the good record that you have had over the last 20 years or more, your work record, and what Mr Hohia has said to me this morning.  So I consider a term of community work is the appropriate response.

[21]     Mr Kaye has invited me to consider, in addition, a period of supervision, mainly, as I understand it, so I could attach a condition which would require you to undergo a course of counselling, including anger management counselling.   I have decided against that course for two reasons.  First, because it adds in what I consider to be an unwarranted way to the severity of your sentence.  And, secondly, because you have, it seems to me, yourself recognised on your own initiative that you require some assistance and you have already taken the steps to obtain that assistance.  I am strongly of the view that counselling will be much more beneficial for those who undertake it voluntarily than those who do it as a result of being required to.   I would, however, urge you, Mr R   to see it through and I am sure that your loved ones and whanau will assist you to achieve that.

Sentence

[22]     I have determined that the term of community work that I should impose on each charge is one of 250 hours, those sentences to be concurrent, that is, that you will be required in total to undertake community work for 250 hours.