Kirby-Parker v R [2017] NZHC 2548 (18 October 2017)

Last Updated: 27 November 2017

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2017-443-25 [2017] NZHC 2548

BETWEEN	JACOB KIRBY-PARKER Appellant
AND	THE QUEEN Respondent

Hearing:	26 September 2017 2 October 2017 (further submissions filed)
Appearances:	K Marriner for the Appellant R Thomson for the Respondent
Judgment:	18 October 2017

_{JUDGMENT OF CULL J}

[1] Mr Kirby-Parker pleaded guilty to one charge of blackmail¹ and one charge of indecent communication with a young person.² On 2 August 2017, Judge Sygrove sentenced Mr Kirby-Parker to two years’ imprisonment.³

[2] Mr Kirby-Parker now appeals his sentence on the basis that the sentencing Judge adopted the wrong starting point, imposed excessive uplifts and should have considered home detention. The Crown opposes this appeal and submits the sentence was within the available range and was appropriate in light of Mr Kirby-Parker’s

_{circumstances.}

¹ Crimes Act 1961, ss 237(1) and 238. Maximum penalty is 14 years’ imprisonment.

² Section 124A. Maximum penalty is three years’ imprisonment.

³ _{R v Kirby-Parker [2017] NZDC 16943.}

KIRBY-PARKER v THE QUEEN [2017] NZHC 2548 [18 October 2017]

Factual background

[3] At the time of the offending, between October 2016 and January 2017,

Mr Kirby-Parker was on home detention for previous offending of an almost identical nature. For that offending, he was sentenced to nine months’ home detention with numerous conditions imposed, with the goal of reducing the risk of further offending.

[4] The complainant was a 15 year old female now residing in Australia.

Mr Kirby-Parker, aged 25 at the time of the offending, knew the complainant as the younger sister of a friend. He communicated with the complainant using social media, including Facebook, Snapchat, Instagram and email. Mr Kirby-Parker asked for nude pictures and videos from the complainant and sent images in return.

[5] In November 2016, Mr Kirby-Parker became obsessive and was messaging the complainant constantly. Sexual images and videos were sent by both parties. When the complainant stopped replying, Mr Kirby-Parker told her that if she did not start replying he would show the pictures to her brother.

[6] When the complainant told Mr Kirby-Parker to leave her alone or she would go to the police, Mr Kirby-Parker left a voice message saying she would get what was coming to her and that she only had one warning.

[7] Mr Kirby-Parker pleaded guilty to the two charges and was sentenced to two years’ imprisonment on 2 August 2017.

District Court decision

[8] In sentencing Mr Kirby-Parker, Judge Sygrove noted that if he imposed a sentence of imprisonment Mr Kirby-Parker would be added to the Child Sex Offender Register.⁴

[9] The Judge identified the following aggravating factors:⁵

(a) Mr Kirby-Parker was subject to a sentence of home detention for identical offending at the time he committed the present offending;

(b) considerable harm is inherent in this type of offending;

(c) the complainant’s age was known to Mr Kirby-Parker and made her vulnerable;

(d) there was premeditation;

(e) the offending occurred over several weeks; and

(f) Mr Kirby-Parker had previous convictions for blackmail and indecent assault.

[10] The Judge saw a starting point of two years’ imprisonment as appropriate for the lead charge of blackmail. This starting point had been adopted by Judge McDonald for Mr Kirby-Parker’s “virtually identical offending” committed in 2016.⁶ In light of this, the Judge stated:⁷

For me to adopt a lesser starting point would not be appropriate, particularly given that this offending occurred whilst you were still subject to the home detention sentence he imposed in that case.

[11] The Judge then uplifted the two year starting point by a total of eight months’

imprisonment to recognise the following factors:

(a) an uplift of two months’ imprisonment was imposed in relation to the indecent communications charge;

(b) an uplift of three months’ imprisonment was imposed to recognise the fact this offending occurred while on home detention; and

(c) a final uplift of three months’ imprisonment was imposed for Mr Kirby- Parker’s previous offending.

[12] The Judge then reduced the final starting point of two years and eight months’ imprisonment by 25 per cent for Mr Kirby-Parker’s early guilty plea. This resulted in a final end sentence of two years’ imprisonment.

[13] The Judge considered that home detention was not an appropriate sentence in this instance. He held that the need for deterrence and denunciation was significant in light of Mr Kirby-Parker’s recent history of failing to comply with a sentence of home detention and the conditions imposed upon him as well as the fact he had committed virtually identical offending.⁸

[14] The Judge imposed a final sentence of two years’ imprisonment for the charge of blackmail and one years’ imprisonment for the charge of indecent communication, to be served concurrently.

Approach to appeal

[15] This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion. An appeal against sentence must be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.⁹ The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.¹⁰

Appellant’s position

[16] There were two principal grounds raised by counsel for Mr Kirby-Parker. First, it was submitted that the Judge imposed a starting point that was manifestly

_{excessive and secondly, that the Judge did not impose the least restrictive sentence.}

⁸ At [19]–[21].

⁹ As confirmed in Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

Starting point

[17] Mr Kirby-Parker’s counsel, Ms Marriner, submits that by referring to Judge McDonald’s 2016 sentencing in relation to Mr Kirby-Parker’s prior offences, the Judge adopted the same starting point and disregarded the authorities provided in counsel’s submissions. Mr Kirby-Parker argues that the Judge failed to consider what an appropriate starting point would be, independent of Judge McDonald’s sentencing.

[18] Counsel accepts that the two month uplift to recognise the offence of indecent communication was appropriate. However, Mr Kirby-Parker submits that the six month uplift imposed for offending while on home detention and his previous offending was excessive.

[19] Relying on the cases of R v Needham¹¹ and R v Hulme,¹² Mr Kirby-Parker submits that in his case a starting point of 12 months’ imprisonment was appropriate, with an uplift of four months to recognise previous convictions and offending whilst subject to a sentence. A discount of 25 per cent for his guilty plea was appropriate, as was given by the Judge. Mr Kirby-Parker submits that a final sentence of 12 months’ imprisonment was appropriate.

Home detention option

[20] Finally, counsel for Mr Kirby-Parker submits that the Judge failed to consider the availability of home detention. The Judge had found that as Mr Kirby-Parker had last received a sentence of home detention it was no longer appropriate as a sentencing option for these offences. Counsel points to Mr Kirby-Parker’s clear rehabilitative needs and addresses the problem with his previous sentence, where Mr Kirby-Parker was referred for treatment but had not been provided the opportunity to access appropriate treatment. This was also accepted by the Department of Corrections in the current PAC report. Counsel argues that the least restrictive sentence available is a sentence of home detention, which will also provide the opportunity for Mr Kirby-

_{Parker to access Wellstop counselling.}

¹¹ R v Needham [2014] NZHC 736.

¹² R v Hulme [2012] NZHC 1766.

Crown’s position

[21] The Crown’s position is that there was no error in the sentence imposed and the appeal should be dismissed. The Judge had regard to the relevant authorities when setting the starting point and did not place undue reliance on Judge McDonald’s earlier sentencing decision. Further, counsel submits that the starting point of two years’ imprisonment was within the available range, given the serious nature of the offending and vulnerability of the complainant.¹³ The Crown points to the following aggravating factors of the blackmail charge as justifying such a starting point:

(a) Mr Kirby-Parker threatened to exploit his relationship with the complainant’s brother if she did not comply with his demands;

(b) he threatened her explicitly when the complainant said she would go to police;

(c) his motivation for offending was his own sexual gratification, which has been held by courts to render offending more serious;¹⁴

(d) the complainant was particularly vulnerable because of her age, and the disparity between her age and Mr Kirby-Parker’s age (25) added to her vulnerability; and

(e) the offending was premeditated and took place over several weeks.

[22] The Crown argues that the uplifts were generous considering Mr Kirby- Parker’s previous convictions and offending whilst on home detention. The Court of Appeal has upheld uplifts of 23 per cent from the starting point for offending while subject to a sentence of home detention.¹⁵ The uplift given to Mr Kirby-Parker for offending while on home detention was only 12.5 per cent. Mr Kirby-Parker’s very recent conviction for virtually identical offending is very relevant to his present

_{sentencing and an uplift to recognise this was appropriate in the circumstances. The}

¹³ Relying on R v Stewart [2013] NZHC 3152; Needham, above n 11; and Hulme, above n 12.

¹⁴ R v Hart [2017] NZHC 211 at [57].

¹⁵ R v Wilson [2008] NZCA 496 at [13].

Crown submits that although the starting point of two years’ imprisonment was at the harsher end of the available range, the sentence was not excessive.

[23] Given Mr Kirby-Parker’s previous non-compliance with a sentence of home detention, the Crown argues the Judge did not err in finding the sentencing principles of deterrence and denunciation could not be achieved by a sentence other than imprisonment. The Judge did expressly consider home detention but this was outweighed by the sentencing principles, Mr Kirby-Parker’s lack of remorse and insight into his offending as well as his medium risk of further offending.

[24] The Crown submits that Mr Kirby-Parker’s inability to attend rehabilitation in the community is irrelevant. His offending while serving a sentence for similar offending calls for a more punitive response. A sentence of imprisonment is seen as necessary to mark the seriousness of the offending, hold Mr Kirby-Parker accountable, denounce his current conduct and deter future offending.

[25] Following the hearing, the Crown made a further submission, on learning that the Judge omitted to impose special conditions on Mr Kirby-Parker’s release from imprisonment, on the erroneous assumption that the Parole Board would do so. As the Parole Board’s jurisdiction extends to offenders sentenced to two years and 1 days’ imprisonment only, the Crown seeks the imposition of the special conditions as indicated in the PAC report for a substituted sentence of either home detention or a substituted short-term of imprisonment.

Relevant law

[26] There is no tariff case for the offence of blackmail. However, the decision of R v Takao provides some guidance about relevant factors to be taken into account when sentencing for blackmail.¹⁶ There, Keane J highlighted:

[22] Factors relevant to sentence have been the relationship, if any, between 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 victim to the demand, and the effect on the victim of the demand. It is only when those factors are at their least

¹⁶ R v Takao HC Rotorua CRI-2004-087-2227, 29 April 2005.

aggravating that the circumstances and needs of the offender can on sentence be given any weight.

[27] Counsel have pointed to a number of authorities that are relevant to assessing an appropriate starting point. These are discussed below.

[28] In R v Stewart, Mr Stewart was aged 20 when he assumed fake Facebook identities and befriended three girls aged 16, 14 and 11.¹⁷ After befriending them, Mr Stewart persuaded each of the complainants to send him sexual photographs of themselves. He groomed the complainants and threatened to disclose the images online unless they complied with his demands. Mr Stewart pleaded guilty to three charges of blackmail and two charges of doing an indecent act on a young person.

[29] In assessing the starting point in Stewart, Collins J took the lead offence as the charge of blackmail against the 16 year old complainant. The Judge considered the relevant aggravating factors of Mr Stewart’s offending included targeting the girls for the purpose of grooming them for sexual gratification; threatening to disclose naked images of them if they did not comply with his demands; there was no money involved but he did demand to meet and have sex with the 16 year old; he was persistent; and there was significant impact on the victims. The Judge adopted a starting point of two years’ imprisonment in relation to the blackmail of the 16 year old alone, with a six month uplift to reflect the totality of the offending and previous convictions for similar offending. A final sentence of 11 months’ home detention was imposed.

[30] In R v Hulme, Mr Hulme pleaded guilty on one count of blackmail against a

12 year old girl.¹⁸ Mr Hulme and the victim had a texting relationship that spanned approximately three years. During this time, Mr Hulme sent sexually explicit text messages and images, promised to buy the victim things and pressured her to send him sexual photographs of her every day. When she began to ignore the messages from Mr Hulme, he threatened to post some of the images on Facebook unless she sent new

_{photographs of herself. This threatening behaviour continued over the next few days.}

¹⁷ Stewart, above n 13.

¹⁸ Hulme, above n 12.

[31] In assessing the starting point, French J identified the aggravating features of Mr Hulme’s conduct as the victim’s vulnerability and the gross disparity in their ages (he was in his late 50s at the time), his persistence and the serious effect on the victim. The Judge identified that an appropriate starting point would be a period of imprisonment of between one to two years. This was reduced to reflect Mr Hulme’s previous good record, early guilty plea and offer of amends. A final sentence of six months’ home detention was imposed.

[32] In R v Needham, Mr Needham pleaded guilty to two charges of blackmail against two adult female victims.¹⁹ One victim was the sister of his girlfriend and the other was a stranger. On two separate occasions, Mr Needham, who was 25 at the time, gained the trust of both victims and gained access to sexually explicit photographs of them. He threatened to post the images on Facebook and various websites unless they sent him more images of a similar nature.

[33] Duffy J adopted a starting point of 16 months’ imprisonment for both charges. The Judge highlighted the relevant aggravating factors as the presence of two victims, the harm caused to the victims, the degree of planning and deceit involved. A final sentence of five months’ home detention was imposed.

Discussion

[34] In setting the starting point, the Judge took into account the aggravating factors in Mr Kirby-Parker’s offending. The Judge identified them as follows:

(a) he was subject to a sentence of home detention for identical offending at the time he committed the present offending;

(b) considerable harm is inherent in this type of offending;

(c) the complainant’s age was known to Mr Kirby-Parker and made her vulnerable;

¹⁹ Needham, above n 11.

(d) there was premeditation;

(e) the offending was persistent and occurred over several weeks; and

(f) Mr Kirby-Parker had previous convictions for blackmail and indecent assault.

Starting point

[35] The Judge also referred to Judge McDonald’s 2016 offending, where Judge

McDonald set the starting point for the offending of two years.

[36] In light of the aggravating factors identified by Judge Sygrove and the relevant authorities discussed above, I consider the starting point of two years was within the range available to him, although at the more serious end. I am unable to uphold

Ms Marriner’s submission that the Judge imposed a starting point that was manifestly excessive.

[37] However, having set the starting point of two years’ imprisonment, the Judge imposed an additional six month uplift, which included three months for Mr Kirby- Parker’s previous convictions and a further three months for his offending while subject to a sentence of home detention. Those two factors had already been taken into account by the Judge, as aggravating factors in setting the starting point of two years’ imprisonment.

[38] I consider that there has been a double counting of those factors and this has resulted in a manifestly excessive sentence in the circumstances.

[39] The Judge also imposed a two month uplift to recognise the totality of the offending (the additional charge of indecent communication with a young person), which counsel for Mr Kirby-Parker accepts was appropriate. I consider that a final starting point of two years and two months’ imprisonment was more than sufficient to reflect the totality of Mr Kirby-Parker’s offending.

[40] In the circumstances, I find that an appropriate sentence, from a starting point of two years two months’ imprisonment with a reduction of 25 per cent to reflect

Mr Kirby-Parker’s guilty plea, is 19 months’ imprisonment.

Home detention as an option

[41] Turning then to the option of home detention, I consider that the Judge expressly considered whether home detention should be available in this case and outlined his reasons for declining such a sentence. The most significant factor in this decision was that Mr Kirby-Parker committed almost identical offending to his last conviction, despite being on home detention and subject to significant conditions.

[42] The PAC report, prepared for Mr Kirby-Parker’s sentencing recommended a sentence of home detention. The report did note that Mr Kirby-Parker showed little remorse for his offending and believed he was “set up” by the complainant’s brother. The report highlighted that although Mr Kirby-Parker has previously offended while on home detention, he is motivated to complete treatment to address his offending which he has not had the opportunity to complete previously. It was acknowledged that Mr Kirby-Parker was unable to access treatment, to which he was referred, because of an unintended error in the previous sentence.

[43] The PAC report writer recorded that inquiries have been made about possible treatment and noted that Mr Kirby-Parker would be able to engage with Wellstop once sentenced. The recommended home detention address in this report was different from the original address, at which he was residing at the time of this offending. It was noted Mr Kirby-Parker would not have access to the internet at this recommended address.

[44] I have given careful consideration to the imposition of home detention, as an alternative to a sentence of imprisonment. Although Mr Kirby-Parker’s rehabilitative needs are important in considering the least restrictive sentence, I have decided that in light of his prior offending as well as the serious and sinister nature of the repeat offending while on home detention, a short sentence of imprisonment is more appropriate.

[45] Mr Kirby-Parker’s action, in threatening to exploit his relationship with the complainant’s brother, if the complainant did not comply with his demands and his further threats to her, when she said she would go to the police, were of a sinister and serious nature towards a vulnerable 15 year old. Not only was Mr Kirby-Parker 10 years older than the complainant but this was the second time he had engaged in this type of serious offending.

[46] I accept the Crown’s submission that Mr Kirby-Parker’s inability to attend a rehabilitation programme in the community, while serving the previous sentence of home detention is irrelevant to this reoffending. I consider that his reoffending, while serving a sentence for the same type of offending, calls for a more punitive response from the Courts, as the hierarchy of sentences and orders reflects under s 10A of the Sentencing Act 2002. Although the management of Mr Kirby-Parker’s sentence was unsatisfactory, Mr Kirby-Parker was well aware of the criminality of his actions and he was under supervision by a Probation Officer at the time of this offending. Any assistance to Mr Kirby-Parker if required, could have been given by his Probation Officer.

[47] I consider a sentence of imprisonment was necessary in this case to mark the seriousness of the offending; hold Mr Kirby-Parker accountable for the harm caused; denounce Mr Kirby-Parker’s conduct; and deter Mr Kirby-Parker from committing the same offence again. I accept the Crown’s submissions in this regard.

[48] I do not uphold the appellant’s appeal against the imposition of a prison sentence in these circumstances.

Special release conditions

[49] In providing its advice to the Courts, the Department of Corrections recommended that special conditions be imposed in respect of either home detention or imprisonment.

[50] Following the hearing, the Crown filed a further submission, drawing my attention to the fact that the Judge omitted to impose special conditions, on the erroneous assumption that the Parole Board would do so. The Parole Board’s

jurisdiction for offenders relates only to those offenders sentenced to two years and 1 days’ imprisonment.

[51] The proposed special conditions are appropriate in the circumstances and I direct that these are imposed under s 93(2) of the Sentencing Act until the sentence expiry date.

Conclusion

[52] I am allowing the appeal to the extent of the error in double counting Mr Kirby- Parker’s previous offending while on home detention.

[53] The sentence of two years’ imprisonment is quashed and a sentence of 19 months’ imprisonment is imposed.

[54] Under s 93(2) of the Sentencing Act I order that the standard conditions apply to Mr Kirby-Parker on his release from imprisonment, together with the following special conditions which will apply until the sentence expiry date. Those special conditions are:

(a) To attend and complete an appropriate Child Sex Offender Treatment Programme to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer.

(b) Mr Kirby-Parker is not to associate with or contact the victim of his offending without the prior written approval of a Probation Officer.

(c) Not to possess or use any electronic device capable of accessing the internet or capturing, storing, accessing or distributing images (including without limitation any personal computers or cell phones) without prior written approval from a Probation Officer and under the supervision of an “Approved Informed Adult”. An “Approved Informed Adult” means a person who is fully aware of Mr Kirby- Parker’s offending history and has been given prior approval in writing

by a Probation Officer as being suitable for the purpose of this condition.

(d) Mr Kirby-Parker is not to associate or otherwise have contact with any person under 16 years of age except in the presence and under the supervision of an “Approved Informed Adult”. An “Approved Informed Adult” means a person who has been given prior approval in writing by a Probation Officer as being suitable for the purpose of this condition.

Cull J

Solicitors:

Parker and Marriner, Hawera

Crown Law