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,…

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 Stewart

Details

AGLC: R v Stewart [2013] NZHC 3152
Case: [2013] NZHC 3152
Decision Date: 29 November 2013

CaseChat Overview and Summary

Brandyn Alan Stewart pleaded guilty to three charges of blackmail and two charges of doing an indecent act on a young person. The court found that Stewart had assumed fake identities on Facebook to befriend young girls, persuading them to send compromising photographs of themselves, and then threatening to disclose those photographs unless the victims complied with his demands. The court sentenced Stewart to 11 months' home detention for the blackmail charge involving the 16-year-old victim, and six months' home detention for the remaining charges, to be served concurrently. The court imposed various conditions on Stewart's home detention, including restrictions on his internet use, drug and alcohol consumption, and association with minors.

The court considered the nature of the offending, which involved premeditation, calculated behaviour, and the use of threats to coerce the victims. The court also noted Stewart's personal circumstances, including his likely Attention Deficit Disorder and history of escalating offending and drug use. The court took into account the support Stewart had received from his parents, who had travelled from Australia to be with him during the proceedings.

The court determined the starting point for Stewart's sentence by reference to guiding principles and comparable cases. The court found that Stewart's offending was less serious than cases in which imprisonment had been imposed, and closer to cases in which sentences less than imprisonment had been imposed. The court then made adjustments to the starting point, including a discount for Stewart's guilty pleas.

Overall, the court imposed a sentence of home detention on Stewart, with conditions designed to address the causes of his offending and protect potential victims. The court also ordered the forfeiture of a cellphone seized from Stewart at the time of his arrest.

Orders