R v Stewart

[2013] NZHC 3152

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S

203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-032-000370 [2013] NZHC 3152

THE QUEEN

v

BRANDYN ALAN STEWART

Counsel:                  S C Carter for Crown

S J Gill for Defendant

Sentence:                 29 November 2013

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]      Mr Stewart, on 17 October 2013  you pleaded  guilty to three charges  of blackmail1 and two charges of doing an indecent act on a young person.2

[2]      You pleaded guilty after I had given you a sentence indication of 23 months’ imprisonment and after I had also indicated that I would consider imposing home detention.

[3]      I do intend to impose a sentence of home detention on you today.

1      Crimes Act 1961, s 237, maximum sentence 14 years’ imprisonment.

2      Section 134(3), maximum penalty seven years’ imprisonment.

R v STEWART [2013] NZHC 3152 [29 November 2013]

[4]      In sentencing you, I shall briefly: (1)    summarise your offending;

(2)       explain your personal circumstances;

(3)explain the starting point to your sentence by reference to: (a)           guiding principles;  and

(b)     comparable cases.

(4)     explain the adjustments I am making to the starting point; (5)   explain the conditions of home detention;  and

(6)     explain your end sentence.

Your offending

[5]      Your offending arises from you assuming fake identities on Facebook, in which you said you were 16 when in fact you were about four years older than that. You used the fake Facebook identities to befriend young girls.

[6]      The three complainants were aged 16, 14 and 11.  I accept that at the time you thought the 11 year old was 14.

[7]      After you befriended each of the complainants you persuaded them to send you compromising photographs of themselves in which they were either naked or dressed only in underwear.

[8]      You continued to groom the complainants and threatened each of them with disclosing their photographs online unless they complied with your demands.  Those demands were:

(1)in relation to the 16 year old complainant, you told her she should meet with you and have sex with you;

(2)in relation to the 14 year old, you demanded she send you more photographs of herself naked;  and

(3)in relation to the 11 year old, you wanted to keep in contact with her and instructed her to do so.

[9]      The charges of doing an indecent act relate to you inducing the 11 and 14 year olds to take naked or partially naked photographs of themselves and then send those photographs to you.

Your personal circumstances

[10]     The pre-sentence report is very troubling.   It records that you are likely to have Attention Deficit Disorder (ADD). You were prescribed Ritalin from the age of eight and you have a history of escalating offending and use of drugs.

[11]     The most troubling feature of the pre-sentence report has been your minimal motivation to date to address the causes of your previous offending.

[12]     However, as I noted when I gave you your sentence indication, a clinical psychologist has provided some insight into your psychological status and the circumstances that caused your offending.  Mr Barron has explained that ADD has significantly affected your behaviour and contributed to your impulsiveness and your disregard to the consequences of your conduct.

[13]     On the positive side, Mr De Veth, a counsellor, has advised that you have attended sessions with him to help you understand the causes of your offending.

[14]     Also, I noted when  you entered  your plea of guilty that your father had travelled from Australia to be with you and I understand  your mother has now returned from Australia or is soon to return from Australia with the intention of living in the same house as you if you are sentenced to home detention.   I derive

considerable reassurance from the level of support you have received from both your parents.

Starting point

[15]     I take as the lead offence the charge of blackmail in relation to your conduct in relation to the 16 year old.  I regard this as being the most serious of the offending because you attempted to blackmail her into having sex with you.  Your offending involved premeditation and calculated behaviour that involved a high level of culpability.  Having said that, I note from the psychologist’s report that you suffer a disorder which explains that you can act impulsively and without regard to the consequences.

Principles

[16]     Although there is no tariff for blackmail sentences, Courts have continuously referred to the insidious and destructive nature of this type of offending.3

[17]     I have had regard to the following principles when determining your sentence: (1)        Your relationship with the victims

You targeted young girls on social network sites.  You had previously no connection with these girls. You targeted each of them in order to groom them for your sexual gratification.

(2)       The threats underlying your demands

The  threats  underlying  your  demands  were  that  you  would  disclose naked photographs of the victims on the internet.   This undoubtedly caused considerable anxiety for the victims.   On one occasion you did send one of the photographs of the youngest complainant to one of her friends, which made her in turn think that you would follow through with

your threats.

3      R v Booth CA109/05, 18 July 2005.

(3)       The sums involved

Although you did not demand cash which is normal in blackmail cases, you did demand in the case of the 16 year old that she meet with you and have sex with you and in relation to the 14 year old, that she send you more photographs of her naked and in relation to the 11 year old, that she maintain contact with you.

(4)       Persistence

The messages  and  communications you  initiated were  persistent  and conveyed over Facebook and through text messages.

(5)       Whether your demands were successful

Thankfully, in no case were your demands ultimately successful. (6)     Impact on the victims

I  have  read  the  victim  impact  statements.     Given  the  age  and vulnerability of the victims it is understandable why they have been so upset by your actions.

Comparable cases

[18]     I have considered a number of cases in which threats have been made to publish compromising photographs of complainants on the internet.  The sentences imposed  have  ranged  from  four  years’ one  month  imprisonment4  to  200  hours’

community work.5

[19]     This  disparity  in  sentences  reflects  the  widely  varying  circumstances  in which offending of this type occurs.   The case which resulted in four years’ one month  imprisonment  also  involved  cases  of  the  defendant  actually  meeting  the

victim and offering them money in exchange for sexual acts.  In that case the Court

4      R v Hore [2012] NZHC 1575.

5      R v Thomas CA138/05, 6 July 2005.

adopted a starting point of five years’ imprisonment on the charges relating to sexual exploitation and applied a one year uplift for two blackmail charges.  Your offending is much less serious than the offending in that case and closer to the cases in which ultimately sentences less than imprisonment were imposed.6

[20]     In my assessment, the appropriate starting point for your offending in relation to the blackmail charge involving the 16 year old complainant is two years’ imprisonment.  To this I add a further six months’ imprisonment to reflect the totality of your offending and the fact that you have previously been convicted of offences that were factually similar in nature to these offences.  I then make adjustments to the starting point.

Adjustment to the starting point

[21]     The Crown accepted at the time of your sentence indication that you would be entitled to a significant discount if  you pleaded guilty because the amended indictment had only recently been filed.

[22]     At the time you pleaded guilty I indicated I would be willing to give you a seven month discount to reflect your guilty pleas.  That is the discount which I will give you.

Home detention

[23]     When  I  gave  you  your  sentence  indication  I  indicated  a  willingness  to consider imposing a sentence of home detention.  The pre-sentence report records that home detention is a viable option.  I will therefore adhere to what I said when I gave you the sentence indication and sentence you to home detention.

[24]     The conditions to you being sentenced to home detention are:

(1)You are to travel directly to the named address and await the arrival of a probation officer and security officer.

6      See for example R v Lal HC Auckland CRI-2009-004-5813, 20 April 2011 and R v Nicholls

[2012] NZHC 1334.

(2)You are to reside at that  named address for the duration of  your sentence.

(3)You are to report to a probation officer as directed by the probation service.

(4)You are not to purchase, possess or consume alcohol or any illicit drugs for the duration of your sentence of home detention.

(5)You are to attend and complete an appropriate drug and alcohol intervention programme as may be directed and to the satisfaction of the probation service and the programme provider.   Details of the appropriate programme are to be determined by the probation service.

(6)You are to undertake a psychological assessment and complete such psychological counselling and treatment as is recommended to the satisfaction of the probation service and the service provider.

(7)You are to attend and complete such counselling programmes and treatment to address your identified offending behaviour as may be directed by the probation service and to the satisfaction of the probation service and the programme provider.

(8)You are not to possess, use or have access to any electronic device capable of accessing the internet unless directly supervised by an adult approved in writing by the probation service.

(9)You are to make available to any probation officer and/or their agent any electronic device in your possession or control for the purpose of checking its capability to access the internet.

(10)     You are not to associate with, or contact any person under the age of

16 years except in the presence of and under the supervision of an adult who has been informed about your relevant offending and who

has  been  approved  in  writing  by  the  probation  service  as  being suitable to undertake a supervisory role.

(11)     You are not to associate with, or contact your victims directly or indirectly without the prior written approval of the probation service.

[25]     Your sentence of home detention will commence at mid-day on Monday

2 December 2013.

Conclusion

[26]     Mr Stewart, can you now please stand.

[27]     On the charge relating to the 16 year old complainant I am sentencing you to a period of 11 months’ home detention.  On all other charges I sentence you to six months’ home detention. Those sentences are to be served concurrently.

[28]     I order the forfeiture of the white Samsung Galaxy cellphone seized from you at the time you were arrested.

[29]     You may stand down.

D B Collins J

Solicitors:

Crown Solicitor, Wellington

Gill & McAsey, Lower Hutt for Defendant