R v Thompson

[2012] NZHC 798

ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT, HIS TOWN OF RESIDENCE AND DETAILS OF THE NATURE OF THE ALLEGATION THAT WAS MADE TO BLACKMAIL HIM.

NOTE: THESE SENTENCING REMARKS HAVE BEEN PREPARED IN A FORM THAT MEANS THAT THEY CAN BE PUBLISHED IN FULL WITHOUT RESTRICTION.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2011-077-1415 [2012] NZHC 798

THE QUEEN

v

DOMINIC JASON JONATHON THOMPSON

Hearing:         27 April 2012

Counsel:         N Tahana for Crown

M Hine for Prisoner

Judgment:      27 April 2012

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, Rotorua

M Hine, Rotorua

R V THOMPSON HC ROT CRI 2011-077-1415 [27 April 2012]

Introduction

[1]      Dominic Jason Jonathon Thompson, you appear for sentence today having pleaded guilty to one charge of blackmail.  Although captured in one charge, there were two incidents in which you extorted payment from a man of advancing years and one other when your attempt was unsuccessful.  The sentence I impose today will reflect the totality of your offending.

[2]      At the start of today’s hearing, to protect the victim, I made orders prohibiting publication of his name and identifying particulars, his town of residence and details concerning the nature of the allegation that you made against him.   Having made those orders, I make it clear for the press that my remarks today have been prepared in a form that can be published publicly, without amendment.

Facts

[3]      On 11 January 2011, you went to the complainant’s home.  You accused him of assaulting a relation. You demanded that he pay to you a sum of $700, stating that if the money was not paid you would break his arms and legs.  While the Crown asserts that you also threatened to burn down his house, I am aware that you do not accept that allegation.  As it will be immaterial for the purposes of sentencing, I put that allegation to one side for today’s purposes.

[4]      The complainant was too intimidated to contact the Police.  At about 4pm on

11 January 2011, he withdrew money from his bank account.  You returned to his home and collected the money about 7pm that day.

[5]      On 17 January 2011  you returned to the complainant’s home  demanding more money.   The demand was made based on the same allegation.   The sum of

$6,000 was required. You threatened the complainant that if he went to the Police he was “gone”.  You repeated threats of violence made on 11 January.  The following day the complainant withdrew $6,000 from his personal bank account and gave it to you.

[6]      The next incident occurred on 22 September 2011 when you went to the complainant’s house to demand more money. At first sight it seems strange that such a long time passed between the visit on 17 January and the one on 22 September. That is explained, however, by the fact that, on unrelated charges of violence, you were then imprisoned and a serving prisoner during most of that time.

[7]      On 22 September 2011 you demanded $7,000. When the complainant said he could not pay that sum you became agitated.  You increased the demand to $10,000. You repeated threats about doing harm to him.  The complainant agreed to meet you at a specified location the following morning with the money.  Instead, however, he made a complaint to the Police and no money changed hands.

[8]      On each of the occasions that you went into the complainant’s home you took the opportunity to make 0900 calls that the complainant was left to pay for.  While those costs were modest, your conduct demonstrates the degree to which you acted contemptuously towards the complainant.

Victim impact statement

[9]      In the victim impact statement, the complainant has detailed the financial and emotional harm suffered as a result of your offending.   Understandably, given his age, he was frightened and believed that you would physically harm him.  He now takes steps regularly to lock doors to his home and is “always on the look out” for potential intruders.

[10]     You  have  requested  a  restorative  justice  meeting.    The  complainant,  it appears, does not want one.   Your request has been made very late.   Given your circumstances, your request has a rather hollow ring to it.

Personal circumstances

[11]     You are 21 years old.  Despite that, you have accumulated a number of prior convictions.  Leaving to one side appearances in the Youth Court, on my count you have  been  convicted  and  sentenced  on  something  in  the  order  of  26  occasions

between November 2007 and the present time.  Most of that offending has involved either violence or dishonesty.

[12]     You have offered to pay reparation for the amount extorted, namely $6,700. Clearly, however, you do not have the means to do so.  Your explanation is that you purchased a car with the money and you subsequently crashed that car.   It was uninsured.

[13]     Although you have expressed regret for your offending, I do not consider that you are truly remorseful.  The fact that visits to demand money occurred on either side of you serving a sentence of imprisonment on charges involving violence demonstrates to me both a callous approach to the crime and your inability to learn from programmes that you had undertaken while serving earlier sentences.

[14]     I agree with the probation officer that you are at high risk of reoffending and causing harm to others.

Analysis

[15]     The maximum penalty for the offence of blackmail is 14 years imprisonment. That maximum penalty and the fact that it is a charge that can only be dealt with in the High Court demonstrates the seriousness with which the law views a charge of this type.

[16]     In your case, the primary sentencing goals must be denunciation of your offending, deterrence, in the sense of deterring you and others from committing similar offences in the future, and accountability for your actions.  There is also a not insignificant element of protecting the public.  While this is the first time you have appeared before the Court on a blackmail charge, it is clear that you have a history of violent or threatening behaviour.

[17]     There are a series of aggravating factors that must be brought to account in determining a starting point for sentence that takes account of all factors relevant to your offending:

(a)      First, the offending took place over a period of months, interrupted only by a period when you were a serving prisoner.  By the time of your second visit, you had clearly embarked upon a premeditated plan to obtain money from the complainant.

(b)Second, your demands for money increased.  You were not satisfied with what you got.  Having obtained $6,700 from the complainant in January 2011 and making him liable for minor telephone charges, you went back after release from prison to demand a further $7,000.  You increased  that  to  $10,000  when  it  appeared  that  the  complainant would not comply readily with your demands.

(c)      Third, the nature of the allegation made to the complainant and the way in  which  you  treated  him  was,  objectively,  an  affront  to  his dignity as a human being.

(d)Fourth, there was a persistence in your conduct.  On two of the three occasions your demands resulted in money being paid to you.

(e)      Fifth, the offending has had a significant effect on the complainant, both financially and emotionally.

[18]     In their written submissions, the lawyers have referred me to a number of cases that they say are comparable.  One of my tasks is to impose a sentence that is consistent  with  others  given  in  similar  circumstances.    It  is  always  difficult  to compare cases which necessarily have differences in their facts to end in a situation where comparable sentences can be imposed.

[19]     Having regard to the aggravating factors to which I have referred, a starting point of two years nine months imprisonment is justified.  To that an uplift must be added to take account of your prior offending and the fact that the offending in September took place while you were on release conditions from your earlier sentence.  They are aggravating factors of a personal nature.  I consider an uplift of

five months is required, making a final starting point of three years two months imprisonment.

[20]     There are no mitigating factors other than your guilty plea that I am prepared to take into account.   You show no real  remorse.   You have no means to pay reparation.  You spent the money for your own purposes.  You have made what I regard as a late and somewhat cynical request for a restorative justice meeting.

[21]     You  were  charged  with  this  offending  on  7  October  2011.    You  were committed to this Court for trial on 6 December 2011. You appeared at two callovers in this Court, pleading guilty after the presentation of an indictment on 8 March

2012.

[22]     The plea was not entered at the earliest possible time.  This was not a case in which  you needed disclosure of documents.   You knew what  you had done.   I consider a reduced credit of 20% is justified for the plea.  It has, at least, saved the complainant from the additional trauma of giving evidence at trial.   I round that credit to eight months.

Result

[23]   Having regard to those factors, Mr Thompson, you are sentenced to imprisonment for a term of two years and six months.

[24]     I make no order as to reparation.  Given the age of the complainant, payment over time is unlikely to assist; and it is clear that you will not be accumulating earnings in the meantime.

[25]     Stand down please.

P R Heath J