R v L [2014] NZHC 1229 (3 June 2014)

Last Updated: 4 July 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-004-004979 [2014] NZHC 1229

THE QUEEN

v

_L

Hearing:	3 June 2014
Counsel:	NMH Whittington for the Crown J Corby for the Defendant
Date:	3 June 2014

_{SENTENCING NOTES OF ASHER J}

Solicitors/Counsel:

Crown Solicitor, Auckland.

J Corby, Auckland.

R v L [2014] NZHC 1229 [3 June 2014]

[1] Ms L, you appear for sentencing today having been found guilty after a jury trial of one count of making an intimate visual recording, and one count of blackmail. The maximum penalty for making an intimate visual recording is three years’ imprisonment, and for blackmail is 14 years’ imprisonment.

Background

[2] In July 2012 you had previously been in a relationship with the complainant. You had a child together and there was in place an interim parenting agreement. You had the primary care of the child. Following the break-up of your relationship the complainant had married a new partner.

[3] While married to his new partner, the complainant and you had sexual relations on two occasions at your home. On the second occasion on 16 July 2012, you arranged your laptop on the side table so that the sexual activity was filmed. As the complainant was leaving the bed he noticed a light on her laptop and queried afterwards whether you had filmed the sexual activity. At that time you denied having done that.

[4] Some months later on 24 November 2012, you contacted the complainant and met with him to discuss the care of your daughter. You advised the complainant that you wished to move to Wellington with the daughter. The complainant disagreed.

[5] On 30 November 2012 the complainant went to your home to pick up his daughter. At that time you told him you had filmed him having sex with you and that you still had the footage. You threatened to show the footage to his wife if he did not consent to you moving to Wellington with your daughter.

[6] On 4 December 2012 you sent an email to the complainant setting out those arrangements that you wished to have put in place for your daughter’s care, which included the move to Wellington. You advised the complainant that he had until

3 pm on Friday, 7 December to agree with this arrangement or you would put the matter before the Family Court.

[7] On Friday, 7 December 2012 the complainant telephoned you and warned you that what you were doing was blackmail and that he would report the matter to the Police. However, later that day you telephoned the complainant’s wife. You met and disclosed that there had been sexual activity on two occasions between yourself and the complainant. You told the complainant’s wife that you had proof of this that you were willing to show it to her. The complainant’s wife visited your address two days later and you showed her some texts and photographs. You also offered to show her the video, which she declined to view.

[8] The consequence of this was severe for the complainant’s relationship. The complainant’s wife required them to separate and they lived apart for some time. They have now reconciled and are living together again.

[9] On 23 March 2013 the Police executed a search warrant. They found a USB stick located in the underwear drawer in your bedroom which contained the video recording of the sexual intercourse.

[10] I have a victim impact report from the complainant. These events have caused him severe suffering, and indeed that suffering was evident when he gave his evidence. I comment that some of that suffering was the consequence of his decision to be involved in consensual sexual activity with another person. However, some of it also was undoubtedly because of the taking of the intimate visual recording, the stress of the blackmail and the very profound humiliation that he has suffered as a consequence of being involved in this trial. I fully recognise that this has been extraordinarily embarrassing and demoralising, and has undoubtedly left a long term legacy for him in terms of his personal esteem and his long term relationship.

[11] There is a pre-sentence report. It reports that you are 43 years old and have held a number of responsible jobs in your lifetime. If this offending is put to one side can be seen in the words of the Probation Officer as a “responsible functioning member of society”. You have no previous convictions. The officer also recorded that you presented as “contrite, polite and communicative”. You are not assessed as posing any physical threat to society, and the likelihood of you re-offending is deemed minimal. The officer proposes the least restrictive curfew of community

detention which would enable you to continue with daily childcare responsibilities and to maintain the pro-social aspects of your life while also holding you accountable for your offending.

[12] The Probation Officer refers to the “cognitive dissonance” that led to your offending. I take it she is referring to the fact that your offending occurred in the context of emotional confusion where your anxiety and concern for your daughter meant that you did not grasp the moral implications of what you were doing.

[13] The Crown does not seek a term of imprisonment. It notes that a starting point between 12 to 15 months’ imprisonment is appropriate, but given the particular circumstances and your good character an end sentence of community detention and community work is appropriate.

[14] The Crown disagrees with the proposal of the Probation officer that supervision is also an appropriate sentence.

[15] Mr Corby, for you, does not quarrel with the Crown’s assessment of the range of the starting point for imprisonment. He does, however, emphasise the positive things that can be said about you and asks for a sentence of community work only.

[16] While the assessment of a starting point is necessary in a sentencing process of this type, it is difficult to carry out the usual separation between the circumstances of the offending and the circumstances of the offender as I am satisfied that this offending has a domestic quality, and arose out of a confused and an entirely morally wrong reaction to the domestic circumstances by you.

[17] The notional lead charge, in that it is the most serious, is the blackmail count. Comments in earlier cases that imprisonment was the only response to blackmail must now be read in the light of quite a number of recent cases where sentences of less than imprisonment have been imposed for blackmail. It is recognised now that blackmail can come in all shades, and while it can be a most serious crime on occasions, in other instances the least restrictive outcome can be a sentence of less than imprisonment.

[18] Mr Corby in his submissions relied on R v Taueki where a sentence of 150 hours community work was imposed where a young defendant had successfully demanded $2,000 in exchange for not disclosing the fact of a sexual encounter, and then later had demanded a further $3,000.¹ The Judge was clearly influenced by the defendant’s remorse and the turn around that she had effected in her life.

[19] In another case, R v Darrell Panckhurst J had also sentenced the defendant to

240 hours community work with supervision for 12 months where a 19 year old had threatened the publication of explicit photographs of the victim unless the victim provided further images, and then when she did not do so he published the images that he had.² Clearly the youth of the defendant and a very positive pre-sentence report influenced the Judge.

[20] The culpability of the defendant in these cases was less than yours. There have been other sentences for domestic blackmail of five months’ community detention where the defendant threatened to publicise sexual material that the defendant held.³ In another there was an end sentence there was six months’ home detention.⁴

[21] I have not been referred to any decisions that relate to making an intimate visual recording.

Decision

[22] It is now necessary against the background that I have set out to assess the appropriate sentence. In terms of the blackmail it has been commented that:⁵

Factors relevant to sentence have been the relationship, if any, between the blackmailer and victim, the threat underlying the demand, the sum demanded, how persistently the demand is made, whether the demand is successful, the vulnerability of the bank to the demand, and the effect on the victim of the demand.

¹ _{R v Taueki [2012] NZHC 3285.}

² _{R v Darrell [2013] NZHC 1860.}

³ _{R v Darbyshire [2013] NZHC 2804.}

⁴ _{R v Hulme [2012] NZHC 1766.}

⁵ R v Takao HC Rotorua CRI-2004-087-2227, 29 April 2005 at [22].

[23] Blackmail will generally involve some element of premeditation, and undoubtedly there was some level of planning on your part. The Crown does not suggest that I should take the view that you deliberately set out to take the visual recording with blackmail in mind, and I do not do so. However, I also accept the Crown’s suggestion that you would have had a general thought that the video might be useful in the future.

[24] Critical to my assessment of your culpability is the fact that this did arise in a domestic situation. You were not seeking to blackmail the complainant to obtain money or gratification. You were doing it because you were emotional about your daughter, and you wanted to go to Wellington to pursue a new relationship without losing her. I consider you also had some residual emotional confusion in relation to the defendant. You thought up a scheme of threatening him and thereby being able to make the move to Wellington without him objecting.

[25] While your state of mind was entirely culpable, I do take into account the domestic context in which the offending arose. The demand was made effectively on two occasions as there was a later text exchange in addition to the demand at the meeting. Of course your threat was unsuccessful in that the complainant did not respond as you had wished. There was no extraordinary vulnerability.

[26] In terms of taking an intimate visual recording, this is quite a serious example in that not only did you take the intimate visual recording of a highly compromising and intimate event, but you actually used it in that you offered to show it to the complainant’s wife, and I have no doubt would have done so. You kept a hidden copy of it.

[27] It is a very serious thing that you did. I agree with the Crown submission that although you have not been charged with this, there is an element of seeking to pervert the course of justice in trying to blackmail someone into doing something different in a court process than would have otherwise been done. The withdrawal of objection could have resulted in an outcome that was not in your daughter’s best interests, but was driven by the blackmail that you had undertaken.

[28] I come to the conclusion that but for the factors referred to below, the starting point proposed by the Crown of 12 to 15 months’ imprisonment is the appropriate range.

[29] However, I do not propose imposing a sentence of imprisonment on you. Instead I am going to impose a sentence of community detention and community work. I am going to do this because of the domestic pressure and the confusion of mind that the Probation Officer has referred to that I accept existed at the time; and I am going to do it because of your undoubted good character, the fact that you have been a good citizen until now, and that you are entitled to significant credit for that.

[30] I also sense that although your expressions of remorse are in part aligned to your own personal misfortune, you do now have some understanding of how wrong what you did was, and you do have some genuine remorse.

[31] In deciding on this outcome and this structure of sentencing I also take into account the fact referred to by the Probation Officer that you need to be available to look after your daughter through the day.

[32] Given the pressured domestic nature of the offending, your good character and your remorse, I take into account the principle of sentencing that I impose the least restrictive outcome that is appropriate in the circumstances in accordance with the hierarchy of sentences.

[33] Home detention is an option I have considered, but because of the particular circumstances, and in particular your good character and remorse, I can go to the tier below that to the sentence of community detention.⁶ The maximum period I can

impose for community detention is six months.⁷ I do not believe that community

detention alone meets the seriousness of your offending and I propose also imposing a sentence of community work which I consider is required to adequately reflect the

_{gravity of your offending. I do not, however, intend imposing an unduly lengthy}

⁶ _{Sentencing Act 2002, s 10A(2)(d).}

⁷ Sentencing Act 2002, s 69B(2).

period of community work. The two penalties together will constitute the appropriate sentence.

[34] I record that I do not propose imposing a sentence of intensive supervision as suggested by the Probation Officer. I do not consider that supervision is appropriate because it should only be imposed if it will reduce the likelihood of further offending through rehabilitation and reintegration.⁸ Because you have been assessed as posing very little risk of reoffending and because of your personal circumstances and the positive things I have recorded about you, supervision to ensure that rehabilitation

and reintegration is not required.

Summary

[35] For the reasons I have set out your sentencing would usually warrant a sentence of imprisonment. However, in the present circumstances and for the reasons I have outlined I am not going to impose such a sentence. I do not believe you are a person who has a real criminal mentality and I do accept your counsel’s submission that it is very unlikely you will re-offend.

[36] So I sentence you to:

(a) a sentence of six months community detention. The conditions are that you will be present at the address stated in the pre-sentence report between the hours of 20.00 to 07.00 Monday to Sunday inclusive. The commencement date will be deferred for five working days from today; and

(b) 120 hours community work. [37] You may stand down.

...................................

_{Asher J}

⁸ Sentencing Act 2002, ss 46 and 54C.