R v Verma

[2012] NZHC 3160

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202

CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-032-3006 [2012] NZHC 3160

THE QUEEN

v

SEAN VERMA

Hearing:         23 November 2012

Counsel:         E M Light for Crown

L C Brown for Prisoner

Sentencing:     23 November 2012

SENTENCING NOTES OF MILLER J

[1]    Mr  Verma,  you  appear  today  for  sentence  on  three  charges:    blackmail, common assault, and wilful damage.

[2]    The facts are that your partner arranged with the male victim of the offending to view a property that he had listed for rent on Trade Me.  She visited the property with him on 25 July 2012.  Several hours later he sent her a text message saying that the property had been rented.  He then asked for a “blow job”.  He says he did not know she had a boyfriend, which is plausible.  Nonetheless as he accepts, he was out

of line in what he did.

R v VERMA HC WN CRI-2012-032-3006 [23 November 2012]

[3]    The sexual advance was crude, and your partner found it offensive.   So did you, when she showed you the text message.   You took her mobile phone and assumed her identity, agreeing to meet the victim in a car park on East Street in Petone.

[4]    The victim arrived at the car park about 7.00 pm, believing he was going to meet your partner.  You approached his vehicle carrying a baseball bat, with which you smashed the front and rear windows and the driver’s window.  You demanded the car keys and told him he was dealing with the Mongrel Mob now.   That is significant because it indicates that you intended from the outset to exact a financial toll by taking his car.  He managed to drive away.  He received superficial cuts to his face and his vehicle cost $1,300 to repair.

[5]    Later that evening  you sent a number of threatening text messages to the victim, telling him that you had his number plate, you had seen his “dead face” and you knew his properties.   You told him he was “dead”.   He apologised, and you invited him to explain how he was going to sort it out.  He asked how you wanted him to sort it out, and you told him he had better come up with a reasonable amount of money or you would come hunting for him.  After some negotiation he offered to pay $5,000.   You demanded $10,000 or tomorrow you and the “dogs”, meaning Mongrel Mob associates, would come for him, his family and his business.   You included a bank account number in the text message.   He agreed to deposit the money the following morning, but you demanded that it be done that night.   You continued to send threatening text messages to him, but he eventually ceased responding.  I have viewed the text messages.  They are both very intimidating in tone and persistent.  This was no casual attempt at blackmail.

[6]    You readily admitted the facts when spoken to by the police, and you have pleaded guilty at the earliest reasonable opportunity.

[7]    The pre-sentence report records that you are aged 29.  You enjoyed a stable upbringing, although you left school without qualifications.  You worked for New Zealand Post for a number of years, but have now been made redundant, so you are reliant on a benefit.  You have been with your partner for three years and between

you have four children.   She was pregnant when the report was prepared but miscarried recently.   She has written a letter explaining that she suffers following that and an unrelated but serious incident in April, which I will not detail here, and depends heavily on you.

[8]    You are a patched member of the Mongrel Mob, but given your age and gang affiliation you have a remarkably clean record.  You have five previous convictions, all minor and irrelevant except one conviction for male assaults female, which I am told happened after the present offending.  That relates to your present partner, and it is relevant for two reasons:   it impinges on a home detention sentence, and your response to the conviction and sentence was very positive.  You have undertaken a domestic violence programme and the facilitator reports that while you tend to think in black and white terms, you showed genuine motivation.  You have not previously served any sentence involving community work or any form of detention or electronically monitored sentence.

[9]    A home detention appendix has been prepared.  Your address is suitable and there are no welfare or safety concerns provided your partner and children move out for the duration of any sentence.

[10]  Reparation of $1,300 is sought for the car.  Because you are on a benefit you have offered to pay it at $10 per week.  I accept that is all you can afford.

[11]  I will now construct the sentence.   The lead offence is the blackmail.   That offence routinely attracts a sentence of imprisonment in the interests of denunciation and deterrence.[1]

[1] R v Wilkie CA6/05, 27 April 2005 at [35]; R v Thomas CA138/05, 6 July 2005 at [23].

[12]  In this case there are a number of aggravating features of the offending.  You threatened to kill or do serious harm, invoking your status as a gang member.  Your victim had every reason to believe that you could and would deliver on your threat. You did so to some extent, by attacking his car and assaulting him in the process.

You demanded a substantial sum of money, and you were very persistent.   The

victim was understandably terrified.  Had you settled for $5,000 and allowed him to pay the following day, you might well have got away with it.

[13]  Against that, you were significantly provoked.  This is not a case in which an offender selected an already vulnerable victim.  It is not a classic case of blackmail. Both you and your partner were understandably offended by his sexual proposition. That led you to believe that it was acceptable to exact retribution.  I also accept that you did not initially plan blackmail;  that was an opportunistic decision taken later. These considerations reduce the starting point that would otherwise apply.

[14]  I have considered a number of comparable cases and I will list them in my sentencing notes.[2]   They lead me to adopt a starting point of two years, nine months imprisonment for all of the offending.

[2] R v Warne [2007] NZCA 353; R v Tumohe HC Rotorua CRI-2006-069-1830, 2 November 2006.

[15]  There are no personal aggravating features.  In mitigation, I allow you 30 per cent for your guilty plea and your remorse which I accept is genuine.  Although you cannot claim previous good character, your record and your family circumstances together lead me to make a further allowance of about five per cent.   That would result in an end sentence of 21 months imprisonment, which admits the possibility of home detention.

[16]  I have  said  that  blackmail  calls  for  deterrent  sentences.    Imprisonment  is routinely imposed.   In this case you made a determined attempt to extract money against a very plausible threat of serious harm.  But you have no significant previous history, nor have you served any community-based sentence, still less imprisonment. You show real prospects of rehabilitation.   On a personal level, then, you are a suitable candidate for home detention.  The courts have accepted that in such cases home detention may meet the sentencing goals of deterrence and denunciation, even

where the offence was blackmail.[3]     There is a suitable address.   It raises some

concerns about risk to your family should they spend too much time there, because the presence of a person on home detention can cause significant stress in the home.

But, you and your partner maintain that it will work, and I am prepared to give you the benefit of the doubt.

[3] R v Lal HC Auckland CRI-2009-004-5813, 20 April at [11];       R v Christensen-Knight HC Rotorua CRI-2010-063-4508, 13 December 2010 at [17].

[17]  On the blackmail, your sentence is 10 months home detention.  You will serve concurrent sentences of two months home detention on the assault charge.  On the wilful damage charge you are convicted and discharged.   You must also pay reparation of $1,300, at the rate of $10 per week.

[18]  There  will  be  an  order  suppressing  publication  of  the  victim’s  name  and

occupation as is customary in blackmail cases.

[19]  You are to go directly to the home detention address which is Flat 5, 4 East Street, Petone and there await the arrival of the probation officer and a representative of the monitoring company.  It is a condition of home detention that your partner and children not live with you at the property.  It is also a condition that you must attend any counselling or treatment programme that may be deemed suitable by the probation officer and complete that counselling or treatment programme to the satisfaction of the probation officer.

[20]  Mr Verma you may stand down.

Miller J

Solicitors:

Crown Solicitor’s Office, Wellington

Public Defence Service, Wellington for Prisoner