[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…

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 Wills v The the Queen

Details

AGLC: Wills v The the Queen [2022] NZHC 2172
Case: [2022] NZHC 2172
Decision Date: 30 August 2022

CaseChat Overview and Summary

Rachel Wills appeals against her sentence for blackmail, imposed by Judge Gilbert of the District Court. The appeal is against the five-month community detention sentence and the $4,000 emotional harm reparation payment ordered by the District Court. Ms Wills abandoned her appeal against the refusal to discharge without conviction. The offending arose out of a series of communications in which Ms Wills threatened to release damaging information about the victim to her employer unless the victim paid a sum of money to settle a civil claim. The District Court Judge considered Ms Wills’ offending moderately serious and rejected the submission that she had no personal gain from it. The Judge noted Ms Wills and her husband were effectively one economic unit and she was clearly involved in the whole situation. The District Court 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. The Judge considered Ms Wills’ previous convictions, which involved dishonesty for personal gain, were relevant to this crime as they both involved attempts to extract money through unlawful, albeit different, means. 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. The Judge then 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. Ms Wills’ counsel submits that the starting point for sentencing was too high, that the consequences of the offending for Ms Wills were given insufficient weight and that the District Court did not give sufficient weight to her previous good works in the community in the interim. Ms Wills’ counsel also submits that the nature of the offending was an attempt and nothing came from it. The Crown submits that the District Court Judge was right to adopt a starting point of imprisonment. The Crown points 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. The Court of Appeal has recognised that 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. In all the circumstances, the Court is not persuaded the sentence was manifestly excessive. It appropriately reflected Ms Wills’ level of culpability while imposing the least restrictive outcome that was appropriate in the circumstances. The appeal is dismissed.

Orders