R v Williams

[2012] NZHC 506

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2011-019-1945 [2012] NZHC 506

THE QUEEN

v

JAMES LEONARD WILLIAMS

Hearing:         22 March 2012

Appearances: R Guthrie for Crown

R Boot for accused

Judgment:      22 March 2012

SENTENCING REMARKS OF ALLAN J

Solicitors:

Crown Solicitor Hamilton
R Boot, Hamilton

R V WILLIAMS HC HAM CRI 2011-019-1945 [22 March 2012]

[1]      Mr Williams, you appear for sentence this morning, having been found guilty by a jury on two counts of blackmail, one of threatening to kill and one of rape.  The blackmail charges carry a maximum penalty of 14 years imprisonment, the charge of threatening to kill carries a maximum of seven years imprisonment, and that of rape,

20 years imprisonment.

Factual background

[2]      For a period of some months during 2010, you had been in an intimate personal relationship with your victim.  The relationship ended in September 2010. For about a month or so after that there was no contact between you, but then there was a resumption, arising principally out of your joint interest in looking after the dogs that had been part of your combined household.

[3]      Initially the resumed relationship was platonic, and that is the way the victim wanted it to stay.  But after a few weeks you commenced to demand sex from her. The demands became incessant. They were often in the form of text messages.

[4]      From about 18 December 2010 onwards, the demands for sexual intercourse with the victim escalated to the point at which they were accompanied by an explicit threat that if she did not submit to you sexually, you would disclose to her family and employer, certain intimate sexual images of her that had been recorded during the course of your relationship.

[5]      At your trial, the Crown produced evidence of a great many text messages, more than 1000 in all, which demonstrated in plain and blunt language, your sense of entitlement to further sexual activity with the victim.   You embarked upon a deliberate, calculated and repetitive course of conduct aimed at manipulating and controlling her.

[6]      She made it very clear in her text message responses that she had no interest in a further sexual relationship.  But in the face of your threats to disclose intimate photographs to others, she ultimately relented.   In doing so, she told you in the

clearest possible terms that she was acting under duress, and that you had simply overborne her will by your demands.

[7]      On Christmas Day 2010, the victim went to your house in the early evening. There, sexual intercourse took place. It appears she was with you for several hours and that a great deal of sexual activity occurred.

[8]      The victim hoped that, by submitting on that occasion, your demands would come to an end and that you would destroy the intimate images of her, and hand over to her, various contact details of her family and employer, so you would no longer have the means to send explicit images.   Her hopes were misplaced.   Over the following week or so the messages and demands resumed.   In particular, you stipulated that there were to be three further sexual encounters before you would consider releasing the images.

[9]      On 1 January 2011, the victim was able to block off further communications through your cell phone.  But a few days later, she again began to receive similar threatening and demanding texts, this time from an unknown telephone number.  The demands were essentially the same as before.   Over succeeding days the threats escalated.  She was told she would be raped, that her car would be firebombed, and that both she and her family were being watched.   The threats culminated in an unambiguous threat to kill her.

[10]     At your trial you admitted sending the texts up to 1 January 2011, but not the later texts, some of which you claimed had actually been received by you as well as your victim.  The earlier texts were directed, you claimed, at trying to persuade your victim to resume your sexual relationship because you considered she had earlier promised to do so.  In other words, you were holding her to an agreement. As for the events of Christmas Day, you said you thought there was consent to sexual activity of her own free will.

[11]     The jury rejected all of these explanations and found you guilty on each charge.

[12]     As might be expected, your behaviour has had  a marked effect on  your victim.  For a long period she was harassed and pursued by text messages.  On some days there were literally dozens.  Often there would be a volley of successive text messages over a period of just a few minutes, each containing more strident demands than the last.   She lost sleep and was constantly worried about her safety.   She believed she was not safe anywhere, and in particular, not at her house or her family’s house.  She is currently undertaking counselling which is helping to some degree, but as she puts it, she is only now returning to her normal self.  She says she has her family and her employer to thank for her survival.

Pre-sentence report

[13]     Mr Williams, you are 33 years old and of European ethnicity.  It seems you had a difficult start in life, being in foster homes from the age of eight.  You had a variety of jobs, and for the most part seem to have been able to undertake paid employment.

[14]     You have been in a relationship for a year or more with a woman you intend to marry.  There is a two year old child by your ex-wife.  It seems that save for a sister, you have lost touch with members of your family.

[15]     You have 24 previous convictions, five for violent offending between 1997 and 2010.  One of those was an assault against your present victim.  Ms Guthrie tells me you were charges with that offence only after this offending occurred.  There is also a conviction for indecent assault in 1997.   There are seven convictions for breaches of community based sentences.  It appears that you respond poorly to non- custodial sanctions.

[16]     Remarkably, the probation officer reports that you maintain your innocence in relation to all of the present charges.  There is no sign of remorse or any sympathy for your victim.  The report indicates there is, at least at present, a high likelihood of re-offending.

[17]     Blackmail is a particularly unpleasant offence.  As was said by Randerson J

in R v Booth:[1]

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.

[1] R v Booth HC Hamilton TO23112, 4 February 2003 at [25]

[18]     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.  That is certainly the case here.

[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.

[19]     But as counsel both submit, the lead offence for sentencing purposes must be the  Christmas  Day  rape.    Sentencing  for  rape  is  now  largely  governed  by  the decision of the Court of Appeal in R v AM,[3] where certain guidelines were laid down for sentencing Judges in cases involving sexual violation.  Those guidelines are of course applied in the light of the purposes and principles of sentencing as set out in ss 7, 8 and 9 of the Sentencing Act 2002.  Those sections require Judges to take into

account the need to promote accountability for the harm done by an offender to the victim and the community, to promote a sense of acknowledgement of and responsibility for that harm, and to provide for the victim’s interests, to denounce a prisoner’s   conduct   and   deter   others   from   like   behaviour,   and   to   promote rehabilitation and re-integration as appropriate.

[3] R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

[20]     In determining an appropriate sentence the Court must take into account the relative gravity and seriousness of the offending, the effect on the victim, the circumstances of the offender, and the need to impose the least restrictive outcome

appropriate in the circumstances.

[21]     In the light of those principles, the Court of Appeal in R v AM set out four sentencing bands for cases of sexual violation by rape.  We are concerned here with bands 1 and 2.  Band 1 relates to offending at the lower end of the spectrum where there is relatively little or no additional violence, and where certain aggravating features are either not present at all, or present only to a limited extent.

[22]     Band 2 is appropriate for cases involving violence and premeditation which are, in relative terms, moderate.  It is appropriate for cases involving two or three of certain aggravating factors identified by the Court of Appeal in its judgment.

[23]     Band 1 will ordinarily attract a starting point of between six and eight years imprisonment.   Band 2 entails a starting point of between seven and 13 years imprisonment.

[24]     Mr Williams,  starting points  are the first  step  in  the sentencing process. When identified, they are varied by subsequent consideration of aggravating factors, which make the case worse, and mitigating factors, which make it less serious.

Counsels’ submissions

[25]     Counsel differ as to the proper placement of this case in the AM sentencing bands. Ms Guthrie for the Crown submits that the case falls near the top of band 2 of AM warranting a starting point of 11-12 years for the rape and the first blackmail count combined.   The first blackmail count covers offending up to the end of December 2010.

[26]     The Crown says that the rape ought to be taken as the lead offence, with the first blackmail count constituting a serious aggravating factor.   In support of her approach, Ms Guthrie refers to four aggravating factors.  The first is planning and premeditation, which includes not only the sending of hundreds of text messages, but also the fact  you obtained phone numbers of the victim’s employer and family without her knowledge, in anticipation of the threats you intended to make.  Then there is the vulnerability of the victim, who was effectively at your mercy because you retained intimate photos of her after the end of your relationship which you then

used as leverage against her.  There is the degree of emotional stress and trauma your victim suffered as a result of your actions, and finally, counsel identifies a breach of trust arising from the fact that you ingratiated yourself with the victim after re- establishing your relationship on an initially platonic basis.

[27]     In my view, certain of these aggravating factors are referable more to the blackmail count than to the rape itself.  I have some difficulty in placing this case near the top of band 2 of AM.

[28]     Mr Boot, on the other hand, submits that the offending falls towards the lower end of band 1 of AM because you had a genuine, albeit unreasonable belief, that your victim was consenting.   I do not accept that you had a genuine belief in consent.  Your victim only came to your house on Christmas Day by reason of the threats you had made to her over a period of many weeks about the disclosure of the intimate photographs.   She explicitly told you she would engage in sex with you under duress, and that she was not consenting.  You must have known that she did not come to your home of her own free will.  You must have known that she was submitting to you because she thought she had no other option.

Analysis

[29]     I consider this case to fall at the top end of band 1, or the lower end of band 2. The difference does not matter because the bands overlap.  I accept there is a great deal of planning and premeditation here, that the victim was in a sense vulnerable, and that she has suffered significant emotional harm, although in my view the harm is more the result of the sustained blackmail than the act of rape itself. So, several AM aggravating factors are present.  The most significant of them is the level of premeditation and planning, which was high and persistent.  Although there was an element of vulnerability, it arose by reason of your possession of the intimate images, and did not arise, as is common, from extreme youth or old age, or a position of physical or mental disadvantage.

[30]     In terms of the AM analysis, I regard the vulnerability aspect as of only relatively minor significance.   The same goes  for the breach  of trust  on which

Ms Guthrie relies.  It is technically correct but does not loom large.  The other factor she relies on is the victim’s distress.   That is certainly a factor to be taken into account, but as I said earlier, I consider it arises chiefly from the blackmail and not from the rape. Apart from the premeditation, I consider these factors to be present to only a minor degree.

[31]     For these reasons, I consider the case to fall on the cusp of bands 1 and 2 and so to justify a starting point of eight years imprisonment in respect of the rape alone. The case is significantly less serious than the examples provided by the Court of Appeal, of cases at the higher end of band 2 for which Ms Guthrie contends.[4]   By the same token, as I have indicated, I cannot accept Mr Boot’s contention that it falls at the lower end of band 1.

[4] R v AM at [102].

[32]     I turn next to the remaining charges.   Although Ms Guthrie suggests they ought to be separated for sentencing purposes, I intend to treat them as a continuing course of conduct, because they are essentially part and parcel of a single campaign waged by you against this unfortunate victim.   It is a proper inference that into January you were trying to obtain further sexual favours from your victim by ever escalating threats, although you said you simply wanted to meet her in some of the later messages.

[33]     A helpful list of relevant blackmail factors was devised by Keane J in R v Takao.[5]   The identified factors were the relationship between the blackmailer and the victim, the threat underlying the demand, the sum demanded, if any, the persistence with which the demand was made, whether it was successful or not, the vulnerability of the victim, and the effect on the victim.

[5] R v Takao HC Rotorua CRI 2004-087-2227, 29 April 2005.

[34]     As  I  observed  earlier,  imprisonment  will  generally  be  the  sentencing outcome, although at the less serious end of the spectrum there have been recent cases in which non-custodial sentences have been imposed.  But that is not this case. There must be an uplift here.  The threat was serious and persistent, the demand was

successful, and your victim vulnerable.

[35]     Ms Guthrie refers to R v Pillai,[6]  and R v Malone.[7]    But those cases, as she acknowledges, were rather more serious than this.

[6] R v Pillai HC Auckland CRI 2006-092-2766, 24 March 2010.

[7] R v Malone HC Hamilton CRI 2007-019-9642, 30 October 2009.

[36]     Of  particular  help  are  R  v  Menzies,  and  R  v  Lal.[8]      In  the  former  case, Harrison J sentenced a party to a rape arising from blackmail, the victim having submitted to sexual intercourse because she had been led to believe that the principal offender would be able to effect her boyfriend’s release from the clutches of a gang. Mr Menzies  had  fostered  the  victim’s  delusion,  knowing  it  would  lead  to  her submission to the principal offender.  Harrison J imposed an uplift of six months for the blackmail, in addition to the starting point of four years in respect of the rape charge.  Mr Malone, the principal offender, received a much more severe penalty for a substantial range of offending.

[8] R v Menzies HC Hamilton, CRI 2008-019-8012, 22 April 2010 and R v Lal HC Auckland CRI 2009-

004-5813, 20 April 2011.

[37]     Lal had some similarities to the present case.   The victim sought to end a consensual sexual relationship with the prisoner.  He threatened to disclose intimate pictures of them together to her friends and family unless she continued to have sex with him.  The victim refused to comply with the prisoner’s demands.  So there was no charge of rape in that case.  Lang J saw the prisoner’s exploitation of the victim and the fact that he demanded sex as aggravating factors.   The Judge was also satisfied that there was a substantial impact on the victim.   He imposed a starting point  of  10  months  imprisonment,  although  home  detention  was  the  ultimate outcome.

[38]     The nature and extent of the blackmail here is more serious than Menzies or Lal, because it was much more prolonged and it was successful in the sense that it enabled you to engage in sexual activity with the victim against her will.

[39]     I need to bear in mind totality principles, and accordingly impose an uplift of

15 months imprisonment in respect of the two charges of blackmail, taken together.

[40]     Finally, I turn to the count of threatening to kill.  Assistance is to be gained from the recent sentencing remarks of White J in Allan v Police,[9]  in which His Honour set out a number of factors relevant to sentencing for threatening to kill. Among the aggravating factors identified  by the Judge were whether the threat related to some vulnerable person, whether it was impulsive or alternatively calculated, the degree of precision and specificity of the threat, the extent of the

apparent willingness of the offender to carry out the threat, the level of distress caused to the victim, and whether it was made directly to the victim or to some other party. Other factors identified by the Judge are perhaps of less relevance here.

[9] Allan v Police HC Dunedin CRI-2011-412-37, 1 December 2011.

[41]     The jury’s verdict indicates that it was satisfied that the victim believed that the threat could be carried out.  Having regard to the evidence before the court about the nature of your relationship, and the history of your text messaging assault on the victim, I consider a further uplift of three months imprisonment to be appropriate.

[42]     That produces a sentence of nine years six  months, I propose to add a further three  months  in  order  to  recognise  two  aggravating  factors.    The  first  is  your previous record, which includes several offences involving violence, including an earlier assault on the victim.  The second is the fact that when you committed these offences you were on bail and facing a charge of burglary following which I understand you have now been convicted of receiving.  Initially I considered adding something by way of uplift for that, but Mr Boot has persuaded me that a further uplift on that score is unwarranted.  Likewise, while I had in mind adding something for the fact this offending was committed while you were on bail, I have decided in the end not to add anything on that account either.

[43]     That produces a sentence of nine years six months imprisonment.  There are no discernible mitigating factors at all.   It is disappointing that even now, you are unable to accept that what you did was not only outside the law, but that it also subjected your victim to a harrowing ordeal over a period of some months, which

you ought never to have contemplated.

Three strikes warning

[44]     Shortly Mr Williams, I will impose sentence.   But in the meantime I am required to tell you that, given your conviction for rape, you are now subject to the three strikes law.  I must give you a warning of the consequences of another serious violent conviction.   You will also be given a written notice outlining these consequences, which lists the serious violent offences:

(a)      If you are convicted of any serious violent offences other than murder, committed after this warning, and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release;

(b)If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment, which would be served without parole unless it would be manifestly unjust.  In that event, the Judge must sentence you to a minimum term of imprisonment.

Sentence

[45]     Mr Williams, on each of the four counts upon which you have been found guilty by the jury you are convicted.  On the charge of rape you are sentenced to nine years six  months  imprisonment.    On each  of  the charges  of blackmail  you  are sentenced to 15 months imprisonment.  On the charge of threatening to kill you are sentenced  to  three  months  imprisonment.     The  sentences  are  to  be  served concurrently so that the overall sentence is nine years six months imprisonment. I make an order cancelling your current sentence of community work.

C J Allan J