R v Robinson [2016] NZHC 1247 (10 June 2016)

Last Updated: 10 October 2016

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2013-088-001658 [2016] NZHC 1247

THE QUEEN

v

_{CHRISTOPHER JOHN ROBINSON}

Hearing:	10 June 2016
Counsel:	R B Annandale for the Crown C S Cull for the Defendant
Sentence:	10 June 2016

_{SENTENCE OF DUFFY J}

Solicitors:

Crown Solicitor, Whangarei

R v ROBINSON [2016] NZHC 1247 [10 June 2016]

[1] Mr Robinson, you were found guilty by a jury on one charge of blackmail,

which carries a maximum sentence of 14 years’ imprisonment.

Factual background

[2] On 2 May 2013, you sent an email to IAG and its solicitor, Mr Hlavac, in which you threatened to publish wide-ranging accusations of dishonesty and misconduct about both victims unless they complied with certain demands, as set out in that document. The demands included the payment of more than $5 million and that IAG “withdraw the evidence” in a criminal case against you, “work” to have the case “immediately and publicly dismissed” and refrain from “press[ing] or assist[ing] in any civil or criminal action”.

[3] You sent further emails to IAG on 7 and 10 May 2013. In those emails you repeated your threat to make public allegations of illegal conduct and to publish information which would cause serious embarrassment to IAG unless your demands were met.

[4] You described those communications as a “settlement offer”. However, the reality is, as was found by the jury, that those emails amounted to the criminal offence of blackmail.

Victim impact statement

[5] Mr Donegan gave a victim impact statement on behalf of IAG. He noted that it was not unusual for customers to make threats of media complaints in order to receive pay-outs on their claims. He said that your threats went far beyond those run of the mill interactions which are part and parcel of the insurance business. Mr Donegan emphasised that IAG relies upon a reputation for honesty and good faith. The threats made by you posed a direct and illegitimate threat to not only IAG as a corporation, but to the individual experts whom IAG employs in its business. Your actions have caused financial cost to the company as well as significant stress to the individuals affected by and involved with the case.

[6] The nature of the threats you made seemed to me to be overly excessive. They displayed elements of grandiosity in some respects and detachment from reality. I am somewhat surprised that IAG has been as badly affected by those threats as it states in the victim impact report. I can understand the financial steps they took to stop bad publicity on the internet, but nonetheless, to me, the threats were so excessive in many respects I find it hard to accept that they would be taken seriously. However, whether threats are capable of being carried out or whether they are serious really is neither here nor there when it comes to blackmail.

Personal circumstances

[7] You are 68 years old and have lived in New Zealand since 2005. You are retired and live with your wife and daughter. I note that you also suffer from microvascular angina, a form of heart disease which requires some care and attention.

[8] You have no prior convictions in New Zealand. However in 1993, a UK court convicted you on five charges of blackmail. The precise details of those offences have not been established by the Crown however it is clear that the offending involved demands for money made to the Chief Executives of five large London corporations. You were sentenced to 4 years’ imprisonment on all charges.

[9] The pre-sentence report notes that you engaged with the report writer in a positive way and demonstrated some remorse for your actions. You are assessed as being at a low risk of reoffending. Nonetheless, the report writer states that given the nature of your offending and the circumstances which motivated you, the writer did not consider a rehabilitative sentence to be appropriate. The writer further reports that your home is technically unsuitable for home detention purposes, though that relates purely to monitoring by the GPS system. Home detention can be monitored by the older radio frequency system, though it makes the sentence more onerous because it requires you to remain at the address without any prior approval from a probation officer. With the GPS monitoring your movements can be tracked more readily, and so there seems to be some greater flexibility when it comes to

allowing you to leave the address. For that reason a sentence of community detention has been recommended.

[10] You have also written a letter to the Court, in which you apologise for your actions. You describe them as “an ill-considered ‘knee jerk’ reaction to the revelations at the pre-trial hearing.” Furthermore, you say that you have removed all the material from the Internet that IAG considered to be defamatory and have contacted Google and other persons to request the removal of all third party material that you are aware of. You intend to pursue your civil claim against IAG and have now obtained legal advice for that purpose.

Crown submissions

[11] Mr Annandale for the Crown submitted that your offending was serious. He noted that you demanded a significant sum of money and sought to interfere with the administration of justice. He also pointed to your previous extraterritorial convictions for blackmail, although he acknowledged that these occurred a number of years ago.

[12] Mr Annandale submitted that a starting sentence of two years and six months’ to three years six months imprisonment would be appropriate in your case, and that an uplift would be required to reflect your previous convictions.

Defence submissions

[13] Ms Cull submitted on your behalf that your offending were not serious compared to other blackmail offending. She categorises you as someone who was in a broken down contractual relationship with the insurer and notes that this is quite different from blackmail cases where there are individual victims who are often vulnerable in the sense that they are young and they are being threatened with disclosure of personally private information, perhaps alleging sexual misconduct or something like that. She noted that IAG was not especially vulnerable; there was no threat of violence or damage to property; and that whilst the sum of money that you demanded was large, she says it has some proportion to the scale of your civil claim

against IAG. She argued that your previous offences should not be taken into account.

[14] Ms Cull submitted that an appropriate starting sentence would be a community based sentence.

Purposes and Principles of Sentencing

[15] In sentencing you today, Mr Robinson, I bear in mind the purposes and principles of sentencing that are set out in the Sentencing Act 2002.

[16] Denunciation and deterrence are particularly relevant in the context of blackmail offending.¹ The sentence which is imposed must dissuade you from doing anything like this in the future and it must also send a message to others that this type of conduct is not acceptable. It is necessary that the sentence demonstrates society’s complete abhorrence for blackmail offending in general.

[17] I also note that the sentence which I impose today should reflect the seriousness of the offence.² Blackmail is a very serious offence, Mr Robinson, which is reflected in the maximum sentence of 14 years’ imprisonment. On the other hand, I must be mindful to impose the least restrictive sentence that is appropriate in the circumstances.³

Sentencing approach

[18] I propose to follow the sentencing approach set out by the Court of Appeal in R v Taueki.⁴ Therefore, I will first determine an appropriate starting sentence which reflects the aggravating and mitigating features of the offending; and will then adjust that sentence to reflect any aggravating and mitigating factors relating to you

_personally.

¹ _{Sentencing Act 2002, ss 7(e) and 7(f).}

² _{Sentencing Act, s 8(b).}

³ _{Sentencing Act, s 8(g).}

⁴ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372, (2005) 21 CRNZ 769.

[19] There is no tariff case in relation to blackmail. However, I have considered a number of relevant cases.⁵ The sentences which have been imposed vary hugely depending on the facts of the particular offending. One particularly relevant case is R v Currie, in which the defendant similarly made a so-called “settlement offer” that was in fact an attempted blackmail.⁶ In that case, Lang J imposed a sentence of 350 hours’ community work and 12 months’ supervision. The Court of Appeal described that sentence as “benign” and stated that “a sentence of home detention ... was well open to” the Judge.⁷

[20] The High Court in R v Takao identified a range of factors which are relevant in determining an appropriate sentence for blackmail offending, including:⁸

(a) The relationship between the blackmailer and the victim; (b) The threat underlying the demand;

(c) The sum demanded;

(d) How persistently the demand is made; (e) Whether the demand is successful;

(f) The vulnerability of the victim to the demand; and

(g) The effect on the victim of the demand.

[21] The case law suggests that, in particular, blackmail offending which involves threats of violence and/or damage to property will attract higher penalties, particularly when the victim is vulnerable. It seems to me another example where higher penalties will be applied is where the threats involve disclosure personally

_{intimate sexual material.}

⁵ R v Patterson CA228/96, 22 August 1996; R v Matekohi HC Hamilton CRI-2007-019-1089, 9

August 2007; R v Takao HC Rotorua CRI-2004-087-2227, 29 April 2005; Sale v Police [2014] NZHC 1933; R v Jefferys HC Rotorua CRI-2009-070-5635, 4 June 2010; Currie v R [2011] NZCA 624; R v Tufuga [2013] NZHC 1120; R v Hulme [2012] NZHC 1766.

⁶ _{Currie v R, above n 5.}

⁷ _{At [66].}

⁸ R v Takao, above n 5, at [22].

Analysis

[22] There were a number of aggravating features of your offending, Mr

Robinson.

[23] You demanded a very large sum of money which exceeded any legal entitlement you might have had to recompense in your civil proceeding. Your demands for punitive damages were almost laughable. Lawyers in this country know that punitive damages are rarely awarded, and when they are the amounts are small. No-one could hope to get the $3.5 million punitive damages that you sought.

[24] Your demands sought to undermine the justice system by requiring IAG to withdraw their evidence in relation to the criminal case against you. This was one aspect of the demands, though I note that when originally charged you faced a charge of perverting the course of justice, which ultimately did not proceed. Whilst I see this part of your conduct as being an aggravating feature of the blackmail, I note that when such conduct is serious it should warrant a separate charge. Seeking to undermine the criminal justice system is something that falls squarely within the offence of perverting the course of justice.

[25] Your offending was also pre-meditated and persistent in the sense that when your first demand was unsuccessful, you sent not one but two separate follow-up demands.

[26] However, there are also some mitigating features in relation to your offending. The most significant of these, in my view, is that your offending did not involve threats of violence or damage to properties. Whilst the entire matter has clearly caused financial and personal stress to your victims, I do not consider that they were vulnerable in the usual sense of that word. There is also the fact that your blackmail attempt was completely unsuccessful and you ultimately failed to extract any benefit whatsoever from the offending.

[27] In light of these factors, I consider that an appropriate starting point would be

in the region of 20 months’ imprisonment.

[28] I now turn to consider whether there are any aggravating or mitigating features relating to you personally which would require an adjustment to that starting point. I consider that your previous blackmail convictions and your apparent remorse are relevant in this respect.

[29] Previous extraterritorial convictions can appropriately be taken into account in determining an appropriate sentence for New Zealand offending.⁹ In this case, I intend to give relatively little weight to your previous convictions because they are now more than 20 years old and in any case, based upon the information that has been provided to the court, the circumstances of the present offending appears to be quite different. Nonetheless, I consider that a small uplift of three months’

imprisonment is appropriate to recognise those previous convictions.

[30] It is absolutely unacceptable to make threats against any person or body in order to derive personal gain. The fact that you have repeated this type of offending suggests to me that this message must be communicated loudly and clearly to you, Mr Robinson in order to deter you from this type of offending. Had you left matters in the hands of your legal advisors you would not be in Court today. By taking matters into your own hands in discontinuing the first set of civil proceedings your lawyer had commenced against the insurers, and then, at a time when the other criminal proceedings were going your way, by attempting to settle as you would have it, your claims against the insurers in a way that amounted to blackmail, you have done yourself a lot of harm. If you had done nothing after those pre-trial hearings those other criminal charges would have gone. If you had not discontinued the earlier civil set of proceedings you would never have faced the costs awarded against you because it follows as night follows day in this court that anyone who discontinues proceedings pays costs to the defendant. You would not have incurred that burden, and your lawyers could then have carried on the civil proceedings against IAG.

[31] The behaviour in making the demands that you did was rash, headstrong and arrogant. You thought you could do better than your lawyers. That to me is

9. R v Patterson [2008] NZCA 75 at [35]; Patterson v R [2008] NZSC 70 at [3]; Fry v R [2014] NZCA 174.

demonstrated by the fact that knowing your first civil proceeding was stayed, you thought you could get around that by discontinuing them and issuing your own civil proceedings. Now, hopefully, you can see that your way of doing things was mistaken. Ultimately, your lawyers have served you well and you would be wise to leave matters in the hands of your lawyers from now on.

[32] However, you also deserve credit for the remorse you apparently feel in relation to the offending and for the steps you have taken to remove all defamatory material relating to IAG and your civil proceedings from the Internet. This will not be a large discount, since there is an element of self-interest in removing the material, which might otherwise give rise to a cause of action against you. However, I consider that a reduction of one months’ imprisonment is appropriate to reflect those steps.

[33] Taking those adjustments into account, brings the sentence to one of 22

months’ imprisonment.

Home Detention

[34] Since the sentence of imprisonment is less than two years, I may consider whether to commute your sentence to one of home detention.¹⁰

[35] It used to be accepted that the offence of blackmail would invariably attract a sentence of imprisonment. That reasoning no longer applies in New Zealand, for two reasons. The first and most compelling reason is that the Court of Appeal has held that this presumption in favour of imprisonment does not exist.¹¹ A second reason is that the presumption of imprisonment in relation to blackmail predates the current sentencing regime. Prior to the enactment of s 15A of the Sentencing Act in

2007, a court did not have the power to impose a sentence of home detention directly. Rather, the court would impose a sentence of imprisonment and then give leave to apply for home detention.¹² In a number of blackmail cases (including the

_{prominent case I mentioned earlier, R v Takao), the Judge made a bold statement}

¹⁰ _{Sentencing Act, s 15A(1).}

¹¹ _{R v Thomas CA138/05, 6 July 2005 at [9].}

¹² Sentencing Act, s 97 (now repealed).

regarding the inevitability of a prison sentence and then granted leave to apply for home detention. These cases, and the final sentences which were imposed, therefore need to be treated with a degree of circumspection by modern courts, which have the power to impose a sentence of home detention directly.

[36] In determining whether to commute your sentence of imprisonment to one of home detention, I must consider whether a sentence of home detention would achieve the relevant purposes and principles of sentencing. I do not need to be satisfied that a sentence of home detention would best achieve those purposes, but simply that the purposes would be achieved. Section 16(2) of the Sentencing Act is also relevant. That section provides that I must not impose a sentence of imprisonment unless the purposes and principles of sentencing cannot be achieved by any sentence other than imprisonment.

[37] I consider that a sentence of home detention would be appropriate in your case. Numerous courts have recognised that home detention is not a soft option and is a sentence which can adequately fulfil the need to denounce and deter this type of offending.

[38] You have spent approximately six months in custody, which if the sentence was one of imprisonment would have reduced the time served on the sentence. When the automatic release provisions after serving half of a short sentence of imprisonment are also taken into account any actual time served on a sentence of imprisonment may well have been less than the nine months home detention I intend to impose. Nonetheless home detention is not an equivalent to a sentence of imprisonment. It is lower in the sentencing hierarchy in the Sentencing Act. I consider that given the seriousness of your offending that a sentence of 9 months’ home detention is the least restrictive sentence that I can impose for your offending.

Result

[39] Mr Robinson please stand. For the offence of blackmail you are sentenced to

9 months’ home detention. I direct that on leaving this court you are to go directly to the residence at which you are to reside for the duration of the sentence of home detention, namely 1204 Old North Road, Helensville, Auckland and to remain there

for the duration of the sentence. You can expect shortly after your arrival at the address that a field officer or probation officer will arrive to take the necessary steps to prepare you for the sentence of home detention. You are to serve the sentence at the named address and to not move from that address until approved by a probation officer.

[40] I note formally that the commencement of the sentence of home detention will take effect on Monday 13 June 2016.

[41] You have heard discussion in court today about how the residential address can only be monitored by radio frequency which makes it difficult to give you any flexibility in leaving. I realise you have ill-health. If for some reason something happens to your health you must take all steps to contact the probation officer and advise the probation officer that you need medical attention. Do not simply take matters into your hand, which I have to say is a facet of your personality, and just rush off to a medical centre or a hospital, because you may find that the probation service are not impressed with that conduct. Do you understand me? You may stand down.