R v Shepherd HC Hamilton CRI 2010-019-7285
[2011] NZHC 1483
•30 May 2011
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2010-019-7285
THE QUEEN
v
CHRISTIAN SHEPHERD
Hearing: 30 May 2011
Appearances: R Guthrie for Crown
R Boot for Shepherd
Judgment: 30 May 2011
SENTENCING REMARKS OF ALLAN J
Solicitors:
Crown Solicitor Hamilton
R Boot, Hamilton
R V CHRISTIAN SHEPHERD HC HAM CRI 2010-019-7285 30 May 2011
[1] Mr Shepherd, you appear for sentence this morning on charges of blackmail; second there is a count of threatening to cause grievous bodily harm to which you entered a guilty plea at the commencement of the trial. The maximum penalty for that offence is seven years imprisonment.
Factual background
[2] In July 2010, the victim had a brief affair with a female farm employee of his. She had previously been in a long standing relationship with you. The victim is 44 years old, self-employed and resident in the Waikato area. Your relationship with your former partner had extended over some years, and for a period of months you shared the farm cottage in which your partner was living while employed by the victim. But you had gone, several months prior to the commencement of his brief relationship with her.
[3] When you found out about the affair, you told your ex-partner that the victim would pay for what had occurred, and that you would tell the victim’s partner “if he does not play ball”. The following day you contacted the victim. During the course of a long telephone discussion you demanded $1000 in cash as the price for not disclosing the affair to the victim’s partner. You say the victim volunteered to make the payment to you, simply in order to help you out. The jury plainly rejected that contention. I am not surprised. It is nonsense to suggest that he would have made such a large voluntary payment to someone he did not know. In any event, the events of the following 24 hours clearly demonstrated that your purpose was to extract the money by threats. There were numerous text messages which contained further threats of disclosure on your part; you provided your bank account details and demanded that a payment be made forthwith into that account. In one particular message you said:
My time and my patience are wearing thin i no u have the money and from what my contacts r telling me i shouldve gone 4 more so count yourself lucky mate can u put a price on your family?
[4] There was also a specific threat to cause the victim grievous bodily harm by
sending two guys to “break your fucken kneecaps”.
[5] The following day the victim paid $1000 in cash into your bank account and notified you of that by text message. He was given to understand that would be the end of the matter. However, on 31 July 2010 he received a large number of further text messages from you. They were effectively repeated messages, identical to those which had been sent a few days earlier.
[6] The Crown accepts they were not deliberately resent by you, although there is no doubt they came from your telephone. For present purposes their importance is that, upon receipt of them, the victim concluded that these were further threats. Accordingly, he told his partner what had occurred and went to the police.
[7] At your trial you accepted you had sent the text messages, but argued that you were simply endeavouring to obtain payment of the amount which the victim had proffered by way of gift. You also claimed that the reference to putting a price on the victim’s family was to the possibility of disclosure, rather than a threat to the well being of the victim’s family. Quite properly, the jury rejected these explanations.
Victim impact statement
[8] The victim lives with his partner and their 12 month old child, who would have been very young at the time of the offending. It is no wonder therefore that your messages caused him a great deal of stress. He says he was particularly worried for his partner and young baby. He regarded the threat to break his kneecaps as a real threat, and believed you would carry it into effect if he did not make the payment. Having seen you give evidence in the witness box, and having read your text messages to the victim, I am not surprised that he took your threats seriously. When he told his partner about what occurred, she also became greatly upset at the reference to putting a price on the victim’s family.
[9] There are on-going problems. The victim says he is reluctant to work at night on his farm. He continues to worry about you and what you could do to his family.
Pre-sentence report
[10] You are 34 years old, live in Hamilton and were unemployed around the time of the offending. Your early family life seems to have been unsatisfactory, but you have provided little detail of that. Your indication to the probation officer was that you continue to reside with your former partner, who gave birth three days before the trial. It seems that the victim is the father of that child. The probation officer further says however, that your partner has made it clear to you that your relationship with her ended some considerable time ago.
[11] There are problems with alcohol and drug use, and a degree of difficulty with respect to your gambling habits. Some health problems stem from a work injury many years ago when you were hit on the head by a steel frame. That injured your spine and produced panic attacks for a time, but they have now stopped.
[12] You have a long list of previous convictions spanning ten years or more. They include a great many drug related offences, several convictions for assault and dishonesty, numerous excess alcohol and driving offences and a number of convictions for failing to comply with the requirements of the Court and Court sentences.
[13] You indicated to the probation officer that you felt hurt by the affair between the victim and your former partner, and felt that the victim ought to suffer as well. You maintained that he had promised to give you $1000 and subsequently you became angry when he reneged on that agreement. Despite the inevitability of the jury’s verdict, you remain in denial on the blackmail charge. You contend also that there was no threat to the victim’s family, and all you intended to suggest was that they might be hurt by a disclosure of the victim’s infidelity.
[14] I consider that particular message to have been intended as threat to the physical safety of the family, and the victim was entitled to regard it in that light.
[15] You have expressed a degree of regret for the threat to kneecap the victim, but it was in muted terms, and I do not regard it as of significant consequence in the light of your stance on the blackmail conviction.
The approach to sentencing in this case
[16] While taking into account as relevant the various purposes and principles set out in s 7, 8 and 9 of the Sentencing Act 2002, it is necessary that I focus in particular on the approach to sentencing routinely adopted by the Court in blackmail cases. As was said by Randerson J in R v Booth:[1]
[1] R v Booth High Court Hamilton T023112, 4 February 2003 at [25].
The insidious nature of this kind of offending, the ease with which such allegations of this kind can be made, and the seriousness of the consequences for the victim …
all require the Court to adopt a stern attitude to offences like this.
[17] In earlier times, blackmail always attracted a sentence of imprisonment. More recently it has become accepted that these cases vary greatly in culpability and that there is room for a non-custodial sentence at the lower end of the spectrum.[2]
But ordinarily imprisonment will be the only feasible sentence.
Counsels’ submissions
[2] R v Thomas CA/138/05, 6 July 2005 and R v Aperahama and Wall HC Auckland CRI-2009-063-6273, 30 March 2011.
[18] Counsel for the Crown submits that a starting point in the range of two and a half years imprisonment should be adopted, but that there should be an uplift for the charge of threatening to cause grievous bodily harm.
[19] Mr Boot, on the other hand, submits that an appropriate starting point would be of the order of 15 months imprisonment, and that a sentence of home detention
could properly be considered.
Discussion
[20] There is no tariff or guideline case for blackmail sentencing. However, in R v Takao,[3] Keane J helpfully identified a number of factors that will often be relevant to sentence:
The relationship between blackmailer and victim; The threat underlying the demand;
The sum demanded, if any;
How persistently the demand is made; Whether the demand is successful;
The vulnerability of the victim to the demand; The effect on the victim of the demand.
[3] R v Takao HC Rotorua CRI-2004-087-227, 29 April 2005.
[21] In addition to the cases already mentioned I have considered a number of other authorities, details of which will be listed in the footnotes to my sentencing notes.[4] I will mention several for comparison purposes. The first is R v Warne. There the prisoner had gone to a car yard where the complainant worked, and accused him of having had a sexual relationship with a girl aged 15 years. The prisoner said he was a member of the local Black Power gang, and that he knew where the complainant and his parents lived. He demanded two motor cars; if they were not provided then a complaint would be laid with the police; the complainant would go to jail and would there be exposed to the attentions of Black Power members in prison. The threats were later repeated during a call monitored by the police. There was additional intimidation by persons connected with the local Black Power gang. The starting point of two and a half years imprisonment adopted there was upheld by the Court of Appeal.
[4] R v Warne [2007] NZCA 353; R v Wilson HC Auckland CRI-2005-092-10253, 20 July 2006; r v Booth HC Hamilton T/024112; 4 February 2003, R v Dobbs HC Hamilton CRI-2009-085-7829, 16 July 2010; R v Dyson HC Auckland CRI-2008-044,5176, 21 April 2009; R v Carter HC Palmerston North CRI-2009-054-2693, 21 October 2009; R v Price HC Rotorua CRI-2006-036-2958, 13 September 2006; R v Tumohe HC Rotorua CRI-2006-069-1830, 2 November 2006; R v Jeffreys HC Rotorua CRI-2009-070-5635, 4 June 2010; R v Yardley HC New Plymouth CRI-2008-043-3521, 5 March 2009.
[22] In R v Wilson there was a demand for $3,500 in order to prevent a video tape of the victim with a man being disclosed to persons who might demand custody of the victim’s two children. There was a significant degree of premeditation. A starting point of two years
imprisonment was adopted.
[23] In R v Dobbs the male and female prisoners entrapped the victim who was photographed by the male offender in a compromising position with the female offender. There was a demand for payment of $25,000 in order to prevent the release of photographs and bank records disclosing earlier payments by the victim to the female prisoner. Threats continued for a period of three months. A complicating feature there was a threat aimed at getting the victim to bring an end to police investigations. Starting points of three and a half years imprisonment for the male offender, and two and a half years for the female offender were adopted, although for exceptional personal reasons the ultimate sentence on the female prisoner was 12 months home detention.
[24] In R v Price the offender had sent a letter to the victim, threatening to disclose graphic evidence of indiscretions unless a sum of $25,000 was paid. Two subsequent letters threatened violence and the destruction of property by fire. The Court adopted a starting point of two and a half years imprisonment.
Discussion
[25] Underlying all sentencing for blackmail is the need to ensure that the outcome properly reflects the need to denounce and deter the offender and others from similar offending. That need is particularly important where, as here, there was evidence of premeditation. Mr Shepherd, it is plain from what you told your ex- partner on the day prior to your first phone call to the victim, that you had a predetermined plan to extract money from the victim by threatening him with disclosure of his affair to his current partner. In other words, there was a deliberate plan to exploit the situation for your personal gain. In my view, that is a serious aggravating factor, albeit a factor present in most blackmail cases.
[26] Then there is the question of the threats. Here, there was not only the threat of disclosure, but also explicit threats of extreme violence to the victim, and implied threats to the physical wellbeing of his family. That is an important aggravating factor. It is to be noted that threats of violence were not a feature in the cases cited to the Court by Mr Boot this morning.
[27] In that sense this case is similar to Price and also to Warne. Although
Mr Boot distinguishes Warne on the basis that that case involved an element of gang
intimidation. That is correct, but here, you said in one of your text messages that if payment was not forthcoming, there were “2 huge boys that are itching to come n cu and u dont want that cos it will be far worse that (sic) what im asking 4”.
[28] That message suggested to the victim that you had at your disposal large men who were capable of inflicting serious violence and were willing to do so. That was how the threat was interpreted by the victim. In my opinion, there is not much difference between that threat and those made in Warne.
[29] I turn to further aggravating factors. The first is the amount demanded.
$1000 is not insignificant, although not as high as in some other cases. Of greater importance perhaps, is the persistence with which you pursued your demands. All of the action took place over a period of less than two days, but they came at times in rapid succession. Most were couched in threatening, and indeed frightening, terms, but quite inconsistent with your claim that this was a voluntary arrangement with your victim. The number and persistence of your demands amounts to an aggravating factor.
[30] Then there is the consideration that you were successful in your demands, and that you recovered $1000 from your victim by criminal offending. There seems no prospect that you will repay that sum. I am entitled to take that consideration into account on sentence.
[31] Finally, there is the effect of what you did on the victim and his partner. They were left in a state of considerable distress and fear from which the victim in particular, is only slowly recovering.
[32] Drawing all of these threads together, I have concluded that the appropriate starting point in this case is two years imprisonment. While the amount demanded was not particularly high and the blackmail did not persist for an extended period of time, this offending was calculated and specifically planned, in order to exploit the situation for your pecuniary gain. You were successful in obtaining $1000, to which you had absolutely no right. Furthermore, the threats of violence and of group intimidation are significantly aggravating factors.
[33] I propose to impose an uplift of three months imprisonment to take into account your lengthy criminal history. That produces a starting point of two years three months imprisonment, which take into account the totality of your offending, bearing in mind your conviction on the count of grievous bodily harm.
[34] There are no mitigating factors. Your expression of regret in respect of the grievous bodily harm charge dwindles into insignificance given your defence of the blackmail count, and your continued assertion that the payment by the victim was voluntary.
[35] Although you pleaded guilty at the start of the trial to the grievous bodily harm count, that plea was entered at the latest possible time in the face of an overwhelming Crown case. Given that it was very much the less serious of the two counts, there is no room in my opinion for a discount for the guilty plea.
[36] The sentence will accordingly be two years and three months imprisonment.
[37] It is therefore unnecessary to consider home detention, but I should say that even if I had concluded that a sentence of two years imprisonment or less was appropriate, I would not have granted home detention. The nature and scale of this offending, together with your somewhat dismal criminal record, would have put home detention out of the question in any event.
Sentence
[38] On the count of blackmail you are sentenced to two years three months imprisonment. On the count of grievous bodily harm you are sentenced to six months imprisonment. The sentences are to be served concurrently so that the effective sentence is two years three months imprisonment.
C J Allan J
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