Wills v The the Queen
[2022] NZHC 2172
•30 August 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-409-107
[2022] NZHC 2172
BETWEEN RACHEL WILLS
Appellant
AND
R
Respondent
Hearing: 18 August 2022 Appearances:
G D Fletcher for Appellant
G E R Alloway for Respondent
Judgment:
30 August 2022
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 30 August 2022 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
WILLS v R [2022] NZHC 2172 [30 August 2022]
Introduction
[1] Rachel Wills pleaded guilty to a charge of blackmail on 23 February 2022.1 She applied for a discharge without conviction under s 106 of the Sentencing Act 2002. On 29 June 2022 Judge Gilbert declined this application and sentenced Ms Wills to five months’ community detention and ordered her to pay $4,000 in emotional harm reparation.2 Ms Wills appeals her sentence, having abandoned her appeal against the refusal to discharge without conviction.
Background facts
[2] The victim in this matter was responsible for making Ms Wills’ husband redundant in July 2020. Ms Wills’ husband lodged a personal grievance against the company for unjustified dismissal. As part of that process, the victim attended mediation with Ms Wills and her husband. In the course of the redundancy process, the victim spoke to staff about the redundancy situation generally and specifically about Ms Wills’ husband. As a result, Ms Wills’ husband commenced defamation proceedings against the victim, albeit without legal advice or assistance.
[3] Ms Wills subsequently communicated with the victim’s lawyer and told him that she was taking over all communication on behalf of her husband. The parties were in communication about reaching a settlement over the defamation case.
[4] On 17 November 2021, Ms Wills, in her role as spokesperson (or McKenzie friend) for her husband, sent an email to the victim’s lawyer claiming she had three different sources that provided “clear video footage” of an alleged car chase with the victim and Ms Wills’ husband. Ms Wills threatened:
If we have not reached an agreement and confidentiality clause by Monday, I will now also send the footage to the board of directors and leadership team at [the victim’s new place of work].
[5] The next day, Ms Wills contacted the lawyer again, referred to the video evidence, set a deadline for signing a settlement agreement, and said:
1 Crimes Act 1961, ss 237(1) and 238: maximum penalty 14 years’ imprisonment.
2 R v Wills [2022] NZDC 11979.
The video footage and full transcript will be sent to [the victim’s employer’s] board of directors and leadership team.
[6] The victim’s lawyer asked for clarification on what settlement Ms Wills was referring to. Ms Wills then responded:
I would suggest you come to me with your client’s best monetary offer. Remembering his income was affected. Something fair and reasonable. To put an end to this.
[7] She confirmed that in return for the monetary offer and other conditions that there would be no further action taken with the police or the victim’s employer.
[8] It appears that Ms Wills never had the video evidence she referred to in those communications.
[9]The defamation proceeding has since been discontinued.
District Court decision
[10] The District Court Judge first dealt with the application for a discharge without conviction and permanent name suppression.
[11] The Judge considered the offending was “moderately serious” and that the seriousness of the offending was understated by the defence and the Crown. The Judge said that Ms Wills made a reasonably concerted effort to blackmail the victim into paying money to settle the civil lawsuit, and this had the “flavour” of attempting to pervert the proper disposition of civil proceedings. The Judge rejected the submission that Ms Wills had nothing to gain from the blackmail, saying she and her husband were effectively one economic unit and Ms Wills was clearly involved in the whole situation. The Judge also considered the fact that Ms Wills went through a third party, the victim’s lawyer, was only of moderate significance because the underlying motivation to end the proceedings through the illegitimate use of threats was still there.
[12] Regarding the personal factors relating to Ms Wills, the Judge noted the following:
(a)Ms Wills pleaded guilty early on in the proceedings;
(b)she regretted her actions, but this was mainly motivated because of the situation she now found herself in, rather than from any genuine sorrow for the victim;
(c)she and her husband were engaged in good community activities like helping at the SPCA, and had letters of support detailing the kindness of the couple;
(d)Ms Wills was unaware that she was committing a crime, but the Judge noted that ignorance of the law is not a defence; and
(e)the offending occurred at a particularly stressful time in Ms Wills’ life.
[13] The Judge rejected a submission from the defence that Ms Wills’ character was “of the highest level” because of the substantially serious offending Ms Wills committed in 2007. Ms Wills was convicted of five instances of forgery, which had serious consequences for the victims, including bankrupting one of them. The sentencing Judge for that offending noted it was motivated by greed. Ms Wills only escaped imprisonment on conviction for that offending because she agreed to pay a reasonably substantial sum in reparation. The Judge considered this previous offending was relevant to this crime because both involved attempts to extract money through unlawful, albeit different, means.
[14] The Judge then considered Ms Wills’ pre-sentence report, which the Judge said suggested a degree of minimisation and justification for what occurred. The report writer, with whom the Judge agreed, said:
[Ms Wills’] conduct was inappropriate, harmful, and illegal. Evidence shows she lied, threatened the victim, tried to obtain a monetary settlement and circumnavigate the legal process. Furthermore, her offending is not considered down to any particular personal or character deficit; she should have known better.
[15] There was also a report from a psychologist, which outlined how Ms Wills failed to understand how her actions were different from others who were involved in
the civil case. She told the psychologist she considered the victim’s lawyer to have acted aggressively and negatively, and she responded in turn, but felt that she was the only one being made out to have acted as a criminal.
[16] Taking all this into account, the Judge fixed a starting point of “perhaps” six to eight months’ imprisonment, with an uplift of 10 per cent based on the previous convictions. Allowing for the guilty plea discount, that took the sentence to around six months’ imprisonment.
[17] In relation to the discharge without conviction application, the Judge considered the consequences of conviction on Ms Wills. He acknowledged that in her role as a specialist pharmaceutical representative she was required to travel and she also needed to have a controlled drug licence, which required her to be a fit and proper person. There was a risk of that being revoked on conviction. However, the Judge considered that even if she did lose her job, there were other jobs out there that she could get and her convictions would not be a barrier to that. He considered it relevant that she had maintained employment even before her previous convictions were hidden under the Criminal Records (Clean Slate) Act 2009. The Judge also accepted that a conviction may be a barrier to adopting a child, although that may already have been jeopardised by her prior convictions. However, he rejected the contention that she would no longer be able to engage in charitable activities with a conviction. Based on these findings, the Judge considered that the consequences of the conviction would not be out of all proportion to the offending, and therefore he declined the discharge without conviction application.
[18] The Judge commuted the sentence of imprisonment to one of community detention for five months. This was to allow Ms Wills the ability to continue to work. The Judge also imposed an emotional harm reparation payment of $4,000.
Principles on appeal
[19] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should
be imposed.3 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.4 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.5
Submissions
Appellant’s submissions
[20] Mr Fletcher, for Ms Wills, submits the appropriate sentence for this offending is a lengthy period of community work, rather than a short period of community detention. He says that this is the least restrictive outcome and will allow Ms Wills to continue to work.
[21] Mr Fletcher starts by arguing that the starting point was set too high and should have been four to six months’ imprisonment. He submits the following factors should have been given more weight:
(a)it was “an attempt” and “nothing came from it”;
(b)Ms Wills acted out of ignorance of the law regarding “blackmail” and of the meaning of the words “without prejudice”;
(c)the lack of premeditation;
(d)the highly unsophisticated nature of the threats made – they could easily be challenged as not being true;
(e)the fact that the threats were made through a lawyer indicates she did not know what she was doing;
3 Criminal Procedure Act 2011, s 250(2) and (3).
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
5 Ripia v R [2011] NZCA 101 at [15].
(f)the motivation of the offending was not malice, but to end civil proceedings which she was not a party to;
(g)no physical harm nor sexual misdeeds were threatened, nor was any particular sum demanded; and
(h)there was no possibility of Ms Wills following through with her threats.
He also submits the following factors are relevant as per R v Takao:6
(a)the relationship was between virtual strangers, with the only nexus being the civil claim — Mr Fletcher submits this is a neutral factor;
(b)the threat was regarding ending a civil claim, which would have ended matters for both parties;
(c)the sum demanded was based on the context of the civil case;
(d)the demand was unsuccessful, and the civil claim ended regardless; and
(e)the threat was made out of a sense of misguided altruism for her husband.
[23] Mr Fletcher points to other cases which he submits shows that the starting point in this case was too high.7 He also cites cases where community work was imposed for blackmail charges.8
[24] Mr Fletcher then submits that Ms Wills’ previous convictions should not have been given as much weight as they were. This is because they occurred 14 years earlier and were of a different type. The charges have been cleared under the Criminal Records (Clean Slate) Act. He also submits the focus on her previous wrongdoing
6 R v Takao HC Rotorua CRI-2004-087-2227, 29 April 2005 at [22].
7 Alkhafagi v R [2022] NZHC 1095; Haggerty v R [2022] NZHC 1019; Styles v R [2021] NZHC 1957; R v Needham [2014] NZHC 736; R v L [2014] NZHC 1229; and Arthur v Police [2018] NZHC 279.
8 R v Simeon-Smith [2016] NZDC 15446; R v Reij HC Christchurch CRI-2009-009-7335, 29 October 2009; Currie v R [2011] NZCA 624; and R v Nightingale [2013] NZHC 877.
fails to take into account her clear and evident good works in the community in the interim.
[25] He then submits that the consequences of the offending for Ms Wills were given insufficient weight because she will be unlikely to obtain employment with a blackmail conviction given the stigma associated with the crime, the requirement to be a fit and proper person in her industry and the cumulative effect of this conviction on her previous conviction. He submits that a sentence of community work increases her odds of remaining employed. Ms Wills is required to travel for her chosen line of work, and this cannot be accommodated while she is sentenced to community detention.
[26] Mr Fletcher also submits that Ms Wills was under real pressure at the time of the offending. Her husband had a stroke, which is why she took over the civil case, a beloved family pet had passed away, and they were caught up in the civil litigation without legal representation.
Respondent’s submissions
[27] Mr Alloway, for the Crown, argues that although the Crown in the District Court took the position that 250 hours of community work was the appropriate sentence, the sentence imposed by the District Court Judge was still within range.
[28]He points to the following factors of Ms Wills’ offending:
(a)the blackmail was relatively concerted, reflecting the fact that blackmail is an invidious and destructive offence because it preys on people’s vulnerabilities;
(b)the threats were lies;
(c)the blackmail was in the context of negotiating a civil settlement, so the offending could be seen as perverting that process;
(d)although the threat was communicated through the victim’s lawyer, the underlying motivation was nevertheless to gain an illegitimate advantage;
(e)Ms Wills has prior convictions for dishonesty offending that led to two of the victims becoming bankrupt; and
(f)the victim had only recently begun employment after having been made redundant, and Ms Wills was aware of this particular vulnerability of the victim.
[29] Mr Alloway notes that in sentencing, consistency between cases is not the absolute goal, and each case must be considered in its circumstances to achieve justice in the individual case.9 The fact that other cases involving blackmail reached outcomes of community service did not bind the Judge, nor did it fetter the fundamental requirement to achieve justice in the individual case.
[30] That being said, Mr Alloway points out that Ms Wills is currently in fulltime employment. If the Crown’s suggested sentence of 250 hours of community work was imposed, then assuming Ms Wills completes one full weekend day of community work each week, it will take her close to eight months to complete the sentence. He suggests this might be seen as more burdensome than a sentence of community detention. Mr Alloway also notes that Ms Wills does a great deal of community volunteering already, in which case, community work may not be an effective punishment.
Analysis
[31] This appeal relates to whether a sentence of community work would have been a more appropriate sentence for Ms Wills than a sentence of community detention. Section 55(1)(a) of the Sentencing Act says a court may sentence an offender to community work if the offence committed is one punishable by imprisonment, so community work is plainly available. Section 56 relevantly provides:
9 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [38].
56 Guidance on use of sentence of community work
(1)In considering whether to impose a sentence of community work, the court must give particular consideration to—
(a)whether the nature and circumstances of the offending make it appropriate for the offender to be held accountable to the community by making compensation to it in the form of work, in addition to, or instead of, making reparation to any person in respect of the offending; and
(b)whether the sentence is appropriate having regard to the offender’s character and personal history, and to any other relevant circumstances.
[32] Community work is a less restrictive sentence than community detention,10 but the Court of Appeal has recognised that it still has a punitive aspect to it. The Court of Appeal in R v Rawiri said:11
[Community work] is intended by Parliament to be and is a very real and effective alternative to imprisonment which should not be regarded by the public as a minor or insignificant reaction. A sentence of community work is designed to achieve the principles of accountability, deterrence and denunciation traditionally associated with imprisonment while avoiding the default option inherent in that sentence … and promoting a sense of community participation and awareness.
[33] There is no tariff sentencing judgment for blackmail offending because the circumstances of the offending can vary so greatly. As noted by the Crown, it is crucial to achieve justice in each individual case according to its circumstances.12 In doing so, the Court must have regard to the purposes and principles of sentencing, including that the Court must impose the least restrictive outcome that is appropriate in the circumstances in accordance with the hierarchy of sentences in s 10A of the Sentencing Act.13 This means that if community work is appropriate in the circumstances, then it must be imposed over a sentence of community detention.
[34] In assessing the seriousness of Ms Wills’ offending, I consider this offending was serious and, as the District Court Judge noted, contained a “flavour” of perverting the course of justice, by attempting to get the victim to withdraw from defending civil
10 Sentencing Act 2002, s 10A.
11 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [18] (footnote omitted).
12 Hessell v R, above n 9, at [38].
13 Sentencing Act, s 8(g).
proceedings before this Court through threats. The threats were repeated. I also agree with the District Court Judge that Ms Wills’ motivation was for personal gain for her and her husband.
[35] I reject the submission that the offending was simply an “attempt”. While the victim of this offending did not comply with the threat made by Ms Wills, the offence of blackmail does not require the victim to submit to the threats against them nor does it require the threat to be carried out. As the Court of Appeal noted in Blackwood v R:14
As will be apparent, the cases show a wide range of different factual situations and accordingly a wide range of sentences. They do however also demonstrate that a starting point of up to two years’ imprisonment has been considered appropriate in cases with one or two victims, including cases where the threat was not to make intimate pictures publicly available and where the threat was not actually carried out …
Of course, if it had resulted in the victim submitting to the threat, that would have increased the gravity of the offending.
[36] I also do not accept that the fact that Ms Wills may have acted out of ignorance of the law or under a misapprehension about the meaning of “without prejudice” diminishes the seriousness of her offending, nor does the fact that she made the threat to the victim’s lawyer, rather than directly to the victim. Clearly ignorance of the law is not a defence. Regardless of the legal position, she knew she was fabricating material to threaten the victim into making a monetary payment. As the District Court Judge and the pre-sentence report writer acknowledged, she should have known better.
[37] On the other hand, I accept that this offending was not as serious as in some other cases, as the threats were to release a video of a driving incident, and not, for example, to release intimate photographs or videos as threatened in other cases. That being said, the threat was made to the victim at a time when she had recently gained employment, and was intended to make the victim think her employment could be put in jeopardy.
14 Blackwood v R [2018] NZCA 215 at [34].
[38] The victim impact statement details the fear and anxiety the victim felt as a consequence of the offending. She would stay in another person’s house and use another person’s car to avoid being tracked. She avoided driving down some streets and installed a security camera and curtains in her home. It also impacted her working life, as the incident occurred when she had only been with her new employer for two weeks, and she felt as if she had to unnecessarily prove herself at work due to the unconscious bias of her employers when they found out about the situation. She has also had to take sick leave and annual leave to recover from the stress the incident caused her. She has since been made redundant, and feels that this case contributed to her redundancy.
[39] The District Court Judge placed weight on the prior convictions of Ms Wills. She has five convictions relating to forgery committed in 2006 and 2007. This offending occurred while Ms Wills was employed at a property business and forged documents for clients to secure mortgages with banks. She benefited by earning commission on each occasion. The offending caused the banks significant loss and changed the victims’ lives forever, with one of them being declared bankrupt. Ms Wills was sentenced to seven months of home detention, 200 hours of community work and to pay $50,000 in reparation. While counsel submitted this was too long ago to be relevant to sentencing, I do not agree. It was sustained and deliberate dishonesty offending for personal gain and means the present offending cannot be seen as a one-off aberration.
[40] In respect of Mr Fletcher’s submission that the Judge placed too little weight on the consequences of the offending of Ms Wills, most of these submissions appeared to relate to the application for discharge without conviction, and the appeal on that issue has been abandoned. However, Mr Fletcher did emphasise in oral submissions, that a sentence of community work would make continuing in employment more likely and, if she lost her present job (which requires her to be a fit and proper person), a conviction which resulted in a sentence of community work would be less detrimental to her future job prospects than a conviction with a sentence of community detention.
[41] However, I am not persuaded that an employer would, in general, see a material difference between a sentence of community work and a sentence of community
detention in terms of her employability. It is the substance of the charge which is likely to be material to future employment and not the fine distinction between one type of community-based sentence and another. In any event, sentencing cannot be determined on what is more convenient for the defendant but on whether it appropriately reflects the principles in the Sentencing Act.
[42] In terms of the appropriateness of the sentence, the appellant has cited many cases relating to blackmail offending. The following cases are the most helpful, although I note that they are still quite factually different, illustrating the wide range of offending which is caught by the charge of blackmail.
[43] The first case is Arthur v Police.15 In that case, the offender made threats against his associate’s former business partner. The threat was to disclose confidential documents to a number of sources, including the media, alleging that the victim was misrepresenting his building products and was placing members of the public at risk. The offender also demanded an apology from the victim and for him to withdraw civil court action laid against the offender’s associate. If the victim did not comply, the offender threatened to disclose the information relating to the alleged misrepresentations. The victim received more threatening texts, and eventually left the country with his family because of them. The offender was sentenced to eight months’ home detention on appeal. That is a significantly sterner sentence than was imposed in the present case, and yet the cases have a number of similarities.
[44] The second case is R v Nightingale.16 In that case, the offender made threats against his partner’s employer after he had allegedly harassed his partner. The threats were that if the victim did not pay the offender $5,000 and give his partner a “good pay rise”, then the offender would disclose the alleged harassment and the content of the victim’s messages. The Judge imposed a sentence of 300 hours of community work, although this was influenced by the fact that the offender was already serving a period of home detention and another cumulative term, which was the Judge’s initial view, was not possible. The Judge considered a concurrent term would not reflect the gravity of the offending, and therefore imposed a sentence of community work.
15 Arthur v Police, above n 7.
16 R v Nightingale, above n 8.
[45] Similarly, the other cases Mr Fletcher cited as examples where a blackmail offender was sentenced to community work were cases where other factors were at play. The Judges in two of the other cases cited considered more restrictive sentences as also in range, but the other factors at play made community work the most appropriate sentence. In one case, the offender’s mental health made a more restrictive sentence inappropriate,17 and in the other, the Judge wanted the offender to contribute to the community instead of staying inside and stewing over past events.18 These cases illustrate once again the importance of considering each case on its own facts.
[46] I consider the District Court Judge was right to adopt a starting point of imprisonment. Having regard to the aggravating features of the offending which included several statements over at least a couple of days, threatening to release damaging video footage to the victim’s employer unless a monetary sum was offered, the significant adverse effects this had on the victim, and the fact it was not the first time she had been involved in offending which involved dishonesty for monetary gain, a prison sentence was available.
[47] In terms of personal mitigating factors, again I consider these were correctly assessed by the Judge. He noted the early guilty plea and the evidence of regret and good character, but balanced this against her previous offending and the indications that she attempted to minimise or justify what had incurred. In my view, this minimisation coloured the information she provided to the clinical psychologist Craig Prince, and I put little weight on his report, noting it largely adopts Ms Wills’ version of events and lacks objectivity. For example, when describing the exchanges with the lawyers, Mr Prince describes Ms Wills’ statement that a monetary offer was acceptable was made “tongue-in-cheek” as a point of leverage. I do not consider that is consistent with the established facts. Ms Wills was seeking a monetary payment using the threat of taking adverse information to her employer. Ms Wills’ willingness to deflect blame on to the victim, the lawyer, and the police, also suggests she has a limited ability to take full responsibility for her actions.
17 R v Reij, above n 8, at [29](i).
18 Currie v R, above n 8, at [64], citing R v Currie HC Auckland CRI-2008-004-21895, 16 September 2010 at [36].
[48] Like the District Court Judge, I do not consider the personal factors, including events in their personal lives, such as the loss of a beloved family pet and her husband’s ill health were materially mitigating factors and, taking into account an uplift and guilty plea discount, the initial indication of six months’ imprisonment was not out of range and, indeed, was consistent with the pre-sentence report writer’s recommendation of home detention.
[49] However, the Judge then clearly focused on imposing the least restrictive outcome that was appropriate in the circumstances. That meant, instead of imposing home detention, he chose to impose a sentence of community detention for five months. That was intended to facilitate her working either in her current role or, if she lost that job, in some other role. Ironically, although Ms Wills insisted her conviction would result in the loss of her job, nearly two months on from her conviction being entered, she remains in employment.
[50] In all the circumstances, I do not consider the sentence was manifestly excessive. It appropriately reflected her level of culpability while imposing the least restrictive outcome that was appropriate in the circumstances.
Result
[51]The appeal is dismissed.
Solicitors:
Raymond Donnelly & Co., Christchurch
Copy To:
G D Fletcher, Barrister, Christchurch
0
9
1