R v Blackwood [2018] NZHC 306 (2 March 2018)

Last Updated: 23 July 2018

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF VICTIMS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360349.html

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-057-1736 [2018] NZHC 306

THE QUEEN

v

CHRISTOPHER JOHN BLACKWOOD

Hearing:	2 March 2018
Appearances:	E McCaughan and L Nunweek for the Crown I Jayanandan for the Defendant
Judgment:	2 March 2018

SENTENCING NOTES OF GORDON J

Solicitors: Crown Solicitor, Auckland Counsel: I Jayanandan, Auckland

R v BLACKWOOD [2018] NZHC 306 [2 March 2018]

Introduction

[1] Mr Blackwood you appear today for sentence after having pleaded guilty on 15 November 2017 to the following:

(a) Six charges of blackmail;¹

(b) One charge of causing harm by posting a digital communication;² and

(c) One charge of intimidation.³

[2] Blackmail carries a maximum penalty of 14 years’ imprisonment.⁴ Causing harm by posting a digital communication carries a maximum penalty of two years’ imprisonment or a fine not exceeding $50,000.⁵ Intimidation carries a maximum penalty of three months’ imprisonment or a fine not exceeding $2,000.⁶

[3] On your behalf, Ms Jayanandan submits that a sentence of imprisonment is neither automatic nor inevitable. She submits that a sentence of home detention is appropriate.

[4] Mr McCaughan for the Crown submits that an appropriate end sentence would not fall within the range of home detention.

Factual background

[5] There are five victims of your offending. They are all entitled to name suppression. I will set out your offending in relation to each of them individually.

[6] You facilitated your offending through the use of social media applications Facebook, Snapchat and Tinder. Your offending spanned a period from April or May 2014 to late August 2016. You were 21 years old at the beginning of the offending.

¹ Crimes Act 1961, s 237(1).

² Harmful Digital Communications Act 2015, s 22(1).

³ Summary Offences Act 1981, s 21(1)(a).

⁴ Crimes Act, s 238.

⁵ Harmful Digital Communications Act, s 22(3)(a).

⁶ Summary Offences Act, s 21(3).

Offending against “A”

[7] I will refer to the first victim as “A”. On 5 August 2014, you and A were communicating via cell phone. You asked her for intimate photographs in exchange for money. You promised you would not put the photographs on Facebook or send them to any other person.

[8] She complied with your request. She sent you a photograph of her chest covered by her bra, as well as a photograph of her exposed breasts.

[9] On 9 August 2014, you asked A for further intimate photographs. After she refused, you threatened to post the photographs you already had, everywhere you could. A repeatedly told you that she did not want to send you intimate photographs. You replied, “Now or I’m posting all your pics”. A did not provide any further photographs to you. This conduct gives rise to charge one, blackmail.

[10] On 13 August 2014, you asked A to meet you in person. A refused. You then sent her a photograph of a noose tied around a finger with a frowning face drawn on it.

[11] On 14 August 2014, you asked A to send more pictures. When A refused you sent her two emails. In the second email, you said that if A did not send pictures immediately, you would post her naked photographs online.

[12] You did not in fact post the photographs online.

[13] This conduct gives rise to charge two, blackmail.

Offending against “B”

[14] I will refer to the second victim as “B”. You met B at the start of 2014 when she was about 18 years old. You began communicating with her on Facebook and Snapchat.
[15] In around April or May 2014, you offered to pay B $1,500 if she sent you nude photographs. Short on money, she complied. She sent you around ten photographs of her breasts and genitalia. You did not send her any money.

[16] Between approximately May 2014 and May 2015, you contacted B on a number of occasions demanding further explicit photographs in exchange for not posting the photographs you already had, online. B did not provide any further photographs. This conduct gives rise to charge three, blackmail.

[17] This time, you followed through with your threat. Sometime between approximately the end of 2014 and the beginning of 2015, a friend of B advised her that you had posted between three and five of the photographs on Facebook.

[18] When the police subsequently examined one of your cell phones in August 2016, they found a screenshot saved which had been taken on 21 December 2014. The screenshot showed a Facebook post of B’s naked breasts.

Offending against “C”

[19] I will refer to the third victim as “C”. You began talking with C via Facebook in July 2014. C was 17 years old at the time.

[20] Facebook chat logs show that between July 2014 and 4 September 2014 you threatened C that you would commit suicide if she did not break up with her new boyfriend; you sent C several photographs of yourself cutting your wrist, as well as photographs of bottles of prescription medication and alcohol; you threatened on at least three separate occasions to either kill or hurt yourself unless C sent you intimate photographs; and you also demanded that C hold up signs in the photographs showing how much she loved you. This conduct gives rise to charge five, blackmail.

[21] C sent you at least three intimate photographs. In one of the photographs, C held up a sign reading “please don’t kill yourself”. In this particular photograph, the sign was used to cover her naked genitalia, leaving her naked breasts exposed. Another sign read “I love you Chris Linton. Please stay with me”.
[22] You continued to demand further intimate photographs from C in exchange for not posting these photographs on Facebook. You threatened to post the photographs if she sought help from the police.

[23] Unsure of what to do, C spoke with a school counsellor. The counsellor contacted the police and C then provided a hard copy of the Facebook chat logs to the police.

[24] C broke up with her boyfriend. Approximately a week later, the ex-boyfriend received a message from a Facebook account from someone called “Chris”. The message contained a number of photographs of C. She was completely topless in one of the photographs. In the other photographs, C was wearing a bikini or a bra and panties.

Offending against “D”

[25] I will refer to the fourth victim as “D”. In March 2016, you began talking to D via Tinder. D was 23 years old at the time.

[26] After a short time, the conversations became sexual. Over the next four to five weeks, D sent you approximately 50 intimate photographs and in many her exposed breasts and face were visible.

[27] On 2 April 2016, you sent D a photograph of a large amount of money asking her if you could pay her for sex. When she declined, you sent her a photograph of a noose hanging from the roof, followed by a picture of a noose around your neck. You sent her messages stating “do you realise what you’re doing to me. You’re the reason why I’m going to do this” and “you’re the reason I’m dead”.

[28] On 4 April 2016, D was at her home address with a male associate. You asked her if you could watch the pair have sex. D then sent you a picture of the male associate on top of her in an attempt to deter you from contacting her further.

[29] D stopped checking her phone for approximately 30 minutes. During that time, you called her around 30 times, as well as leaving her 10 Snapchat messages. D then
messaged you to leave her alone. In response, you called her a whore. You then stated, “have fun with your career going down the drain after these photographs get posted”.

[30] D contacted the police. While she was talking to the operator, you began posting the intimate photographs on Facebook. D’s associate began untagging her name, before immediately deleting the images and reporting them to Facebook.

[31] Later that evening, you messaged D via Snapchat saying that she had left her location settings on, and you could therefore tell where she lived. You told her that you were going to come over to her house and “fuck her” whether she liked it or not. This conduct gives rise to charge eight, intimidation.

[32] At some time between 14 and 16 April 2016, you messaged D via Tinder, demanding that she show you her genitalia. You threatened to post the intimate photographs again. You sent D’s sister a message via Facebook. The message contained several intimate photographs of D. It advised that other images were visible on Facebook. D’s sister subsequently saw another intimate photograph of D on your Facebook page. One of D’s other friends also saw the image. The image was only publicly visible for about five or 10 minutes. All of this conduct in relation to D gives rise to charge six, blackmail and charge seven, posting digital communications.

Offending against “E”

[33] I will refer to the last victim as “E”. In July 2016, you began communicating with E via Snapchat. She was 16 years old at the time.

[34] At some point, you sent E a photograph of a large amount of money and asked her for naked photographs in return for payment. E sent you photographs of her friend’s cleavage, pretending it was her own. You did not send her any money.

[35] On around 10 August 2016, you messaged E via Snapchat asking for intimate photographs of her and her female friend in exchange for $1,000.

[36] E and her friend then sent you approximately five videos. In one of the videos, E pretended to perform oral sex on her friend, who was naked. E’s face was visible.
[37] Between 10 August 2016 and 23 August 2016, you messaged E on several occasions demanding more intimate photographs and videos in exchange for not posting the material on various social media sites. This conduct gives rise to charge 10, blackmail.

[38] E told you that she was depressed and that she would kill herself. Nevertheless, you still demanded further videos.

[39] E gave a statement to the police on 23 August 2016. While she was being interviewed, she received a message via Snapchat from you stating, “it’s up”. When she queried where you had posted the image, you replied, “go looking”. E could not locate any of the photographs.

[40] When police examined your cell phones, they located three images of C, a screenshot of a Facebook post containing the naked breasts of B, various images of E and her friend, as well as numerous pictures of large piles of money.

Approach to sentencing

[41] Mr Blackwood, setting a finite sentence involves three steps.⁷

[42] I must first set a starting point for your sentence to take account of the facts of your offending, and then adjust it up or down taking into account your personal circumstances. The last step is to consider what discount you should receive for your guilty plea.

[43] I also note that throughout this process, I will have regard to the purposes and principles of sentencing contained in ss 7 and 8 of the Sentencing Act 2002. Blackmail has been described as a “particularly pernicious form of offending because it preys on peoples (sic) vulnerabilities”.⁸ As a result, the sentencing purposes of deterrence and denunciation are important.

⁷ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

⁸ R v Lal HC Auckland CRI-2009-004-5813, 20 April 2011 at [6].

[44] I must, therefore, impose a sentence that will hold you accountable for the harm done to your victims, promote in you a sense of responsibility for that harm, denounce your behaviour and to deter you and others from committing similar offending.

[45] I must also take into account the gravity and seriousness of your offending, the effect of your offending on your victims, the need for consistency with appropriate sentencing levels and the need to impose the least restrictive sentence that is appropriate in the circumstances.

[46] I also take into account the principles in s 16 of the Sentencing Act 2002. In particular, that a Court must not impose a sentence of imprisonment unless it is satisfied that a sentence is imposed for certain purposes in s 7 and that no other sentence would be consistent with the principles in s 8.

Starting point

[47] You are charged with more than one offence. The Crown accepts, and I agree, that a concurrent sentence of imprisonment is appropriate.⁹ What this means is that I will adopt a lead offence and determine a starting point for that offence, and then uplift it to reflect the totality of the offending.

[48] In setting a starting point I take the blackmail charges as the lead offence. I will then impose an uplift for the remaining two charges to reach an overall starting point.

[49] The Crown submits that I should take a starting point of between two years and six months’ imprisonment, and three years’ imprisonment for this lead offending. Mr McCaughan, appearing for the Crown this morning, submits that a starting point at the top end of that range is appropriate.

[50] On your behalf, Ms Jayanandan submits that a starting point of two years’ imprisonment should be adopted for this lead offending.

⁹ Sentencing Act 2002, s 84(2).

[51] In order to decide on the starting point, I must identify the relevant aggravating features of your offending. Section 9(1) of the Sentencing Act 2002 contains a range of aggravating factors. In R v Takao,¹⁰ Keane J helpfully identified a number of the factors that are relevant to blackmail cases.¹¹ Those factors are:¹²

(a) The relationship between the blackmailer and the victim.

(b) The threat underlying the demand.

(c) Whether money was demanded.

(d) How persistently the demand is made.

(e) Whether the demand is successful.

(f) The vulnerability of the victim to the demand.

(g) The effect on the victim.

[52] Here, I note the following aggravating factors of your offending:

(a) Premeditation:¹³ Your offending spanned a period of over two years. You used photos of money to attempt to bribe the victims into sending you intimate photographs, before using those photographs to try and force the victims into sending you more photographs. You clearly had a plan. You threatened to post intimate photographs of the victims online. I regard the level of premeditation as significant.

(b) Carrying out the threat: In three instances, you actually carried out your threat and posted photographs online. For one of your victims that conduct is the subject of a separate charge, and so I put that aside at this point so as not to double count. But for two of them, there is no separate charge. I therefore take this into account as an aggravating feature for those two victims.

¹⁰ R v Takao HC Rotorua CRI-2004-087-2227, 29 April 2005.

¹¹ At [22].

¹² R v Hulme [2012] NZHC 1766 at [30]; citing R v Takao, above n 10.

¹³ Sentencing Act, s 9(1)(i).

(c) Breach of trust:¹⁴ A breach of trust usually occurs in the context of a close relationship between an offender and a victim.¹⁵ Here, you formed relationships with each of the victims and gained their trust, before requesting intimate photographs of them. They clearly trusted you enough to send you those photographs. Some of the victims described how they trusted you and how they felt that trust had been violated.

(d) Impact of the offending on the victims:¹⁶ Each of the victims has given a statement in which they describe the ongoing effects of your offending. They all suffered emotional harm. And they each still live in fear that their pictures may still be online. There is no way of knowing whether you stored the images in some way through other Facebook profiles. The victims are concerned about their friends or family seeing the photographs, as well as any future implications for their careers if the photographs were to come to light. One of the victims even moved to another city as she became fearful of living alone. The emotional effects on them continue to this day.

(e) The persistence of the demands: It is clear that all of the victims faced persistent demands from you. I accept that your levels of persistence varied with each victim, however. The demands were made over a period of approximately five days for A, compared to approximately 12 months for B.

(f) The success of the demands: I note that with C, she complied with your demand by sending you at least three further intimate photographs.

(g) The threat underlying the demands: You threatened each of the victims that if they did not send you further intimate photographs, you would post the intimate photographs you already had of them online. You also

¹⁴ Section 9(1)(f).

¹⁵ Pavlovich v R [2014] NZCA 88 at [25].

¹⁶ Section 9(1)(d).

made explicit threats to both C and D that you would kill or hurt yourself if they did not comply.

[53] On your behalf, Ms Jayanandan accepts that the effect on the victims is an aggravating feature. But she notes that none of them suffered injuries requiring medical attention or hospitalisation, nor any physical injuries with long lasting effects. That submission completely misses the point. Psychological and emotional harm is no less significant than physical harm and indeed can be even more enduring as is apparent in this case in the victim impact statements.

[54] There are no mitigating features of your offending.

Analysis

[55] There is no specific tariff case relating to offending of this kind. That is because the circumstances are so variable. So, I must instead set a starting point by reference to previous cases.

[56] The Crown has referred me to five cases.¹⁷

[57] Ultimately, every case is completely different. The wide disparity in sentences reflects the variable nature of the offending. As was said by Randerson J in R v Booth:¹⁸

[25] ... the Courts have consistently referred to the insidious nature of this kind of offending, the ease with which allegations of this kind can be made, and the seriousness of the consequences for the victim. Ordinarily, a term of imprisonment is imposed but that is not the inevitable outcome.

[58] In R v Williams,¹⁹ Allan J observed:

[18] In earlier times, blackmail always attracted a sentence of imprisonment. More recently it has become accepted that these cases vary greatly in culpability and that there is room for a non-custodial sentence at the lower end of the spectrum ...

17. R v Lal, above n 8; R v Hulme, above n 12; R v Stewart [2013] NZHC 3152; R v Needham [2014] NZHC 736; Kirby-Parker v R [2017] NZHC 2548.

¹⁸ R v Booth HC Hamilton T024112, 4 February 2003.

¹⁹ R v Williams [2012] NZHC 506.

(Citations omitted)

[59] Here, the Crown submits that your offending is significantly more serious than any of the cases the Crown has referred to, particularly due to the number of victims. I agree.

[60] I will specify a starting point for the blackmail charge relating to your conduct with D. In this incident, you threatened to post intimate photographs of D online if she did not provide you with further photographs. You intimated that this would ruin her future career. You followed through with your threat. D’s associate removed the photographs and reported them to Facebook. However, later that evening, you sent the photographs to D’s sister and posted the photographs again. They were publicly visible for between five to 10 minutes.

[61] The closest case cited by the Crown is R v Stewart.²⁰ In that case, Collins J considered that a starting point of two years’ imprisonment was appropriate for the 16- year-old victim. Although the defendant in that case did not actually post any intimate photographs online, he threatened to disclose such photos unless the victim had sex with him. I accept that the victim in that case was much younger. But, in this case, you followed through with your threats on two occasions, even sending the pictures to D’s sister. Therefore, I regard this offending as more serious.

[62] The offending against D justifies a starting point of two years and six months’ imprisonment. In reaching that view, I do not overlook that there is a separate charge in relation to D of posting a digital communication which I refer to below.

[63] Ultimately, given the sheer number of victims, and the aggravating factors I have referred to, I adopt a starting point of three years and six months’ imprisonment for all of the blackmail charges.

Uplift

[64] The Crown submits, and Ms Jayanandan accepts, that an overall uplift of six months’ imprisonment is appropriate to reflect the remaining two charges. The

²⁰ R v Stewart, above n 17.

Crown submits that if the causing harm by posting a digital communication charge had been a standalone charge, it would have attracted a starting point of around eight months’ imprisonment.

[65] As I have mentioned, this charge was founded upon your offending in relation to D. You could not face charges under this particular Act in relation to B and C as the publications occurred prior to the enactment of the Harmful Digital Communications Act 2015 on 2 July 2015.

[66] The Crown refers to two cases.²¹ It submits the offending is similar to that in Brittin v Police.²² As in Brittin, you posted explicit photographs of D and tagged her in them so that she could be identified. The Crown accepts that the Brittin offending involved the aggravating features of posting the photographs on a R18+ website, together with the victim’s contact details. But it submits that the Judge in that case was influenced by the fact that the offending was impulsive. Whereas, the Crown submits the offending in your case was premeditated, given the number of other times that you posted such photographs online in relation to other complainants.

[67] I agree with the Crown’s assessment that the starting point would be around eight months’ imprisonment if this had been a standalone charge. I take particular care not to double count here given my assessment of the starting point for the lead charges.

[68] Ultimately, I impose an uplift of six months’ imprisonment to reflect both this charge and the charge of intimidation. The latter charge related to the incident where you told E that you were going to come over to her house and “fuck her” whether she liked it or not.

Overall starting point

[69] I therefore adopt an overall starting point of four years’ imprisonment.

²¹ Waine v R [2017] NZCA 287; Brittin v Police [2017] NZHC 2410.

²² Brittin v Police, above n 21.

Personal circumstances

[70] I now need to consider your personal circumstances to see whether I should adjust your starting point.

Pre-sentence report

[71] Mr Blackwood, I now refer to matters personal to you by reference to the pre- sentence report. You are currently 24 years of age. You had a full-time job as a mechanic. But you left as you could not get the leave that you needed to help deal with the stress of your current predicament. However, Ms Jayanandan tells me today that you are currently in work.

[72] You have seven previous convictions; most for wilful damage. You have never been to prison. The Crown does not seek an uplift for your previous convictions. Nor does it seek an uplift for the fact that some of the offending was committed while you were subject to a supervision sentence. I agree that an uplift is not appropriate for either of those two things.

[73] The pre-sentence report writer describes you as unforthcoming. You claimed that you had no detailed memory of any of the offences. You demonstrated no insight into your offending. The following comment is illustrative. You described posting intimate photographs of your victims online as “commonplace”. You even framed yourself as the passive participant, stating in future you would simply “block” and “ignore” one of the victims.

[74] The report writer assessed you as being “moderately likely to reoffend”. The report writer identified state-funded rehabilitative avenues available to you in order to address your primary rehabilitative concerns, which were described as your inability to manage relationships and your indifference to criminality. However, these comments need to be seen in the context of your mental health which I refer to next.

[75] Before I do, I note that the report writer did say whether you are imprisoned or remain in the community, there are state-funded rehabilitative avenues.

Mental health

[76] Ms Jayanandan submits that you are entitled to a discount for your mental health. She relies specifically on two reports from Dr Caleb Armstrong, a psychiatrist.

[77] The fact that an offender has, or had at the time the offence was committed, diminished intellectual capacity or understanding is a mitigating factor to be taken into account on sentencing.²³ The Court of Appeal’s decision in E (CA689/10) v R is the leading case on the availability of discounts for mental illness.²⁴

[78] After reviewing previous case law, the Court noted that discounts when mental health has contributed to offending “range from 12 per cent to 30 per cent”.²⁵ The Crown accepts that a discount should be made in your case. It submits the discount should be in the range of 10 to 15 percent.

[79] There are two reports dated 5 December 2017 and 14 February 2018 from Dr Armstrong. I was also provided with a letter from Dr Warwick Smith dated 15 August 2003.

[80] The letter from Dr Smith confirms that you were diagnosed with “a mild degree of Asperger Disorder” in 2003 when you were 10 years of age. You were also diagnosed with Attention Deficit Hyperactivity Disorder. Dr Smith noted you were unable to socialise with children other than your younger brother.

[81] The reports from Dr Armstrong conclude that you meet the diagnostic criteria for Asperger’s disorder and a borderline personality disorder. You in fact display prominent features of a borderline personality disorder. These include unstable and extreme expressions of negative emotions which are easily aroused by relatively trivial events and circumstances. For example, you have a history of self-harm when you are angry or upset, particularly after an altercation with someone. You also show an impairment of empathy, as well as a degree of impulsivity and hostility. Dr Armstrong noted that these factors are not typical for people who have autistic spectrum

²³ Sentencing Act, s 9(2)(e).

²⁴ E (CA689/10) v R [2010] NZCA 13 at [68]- [69].

²⁵ At [71].

diagnoses. He then commented that your mild Asperger disorder would not be expected to be fully resolved with the passing of time. Your difficulties with social interaction are likely to persist, despite your ability to perform reasonably well in a work role.

[82] Dr Armstrong stated that you appeared to have little ability to appreciate the emotional impact of your behaviour on the victims. You expressed some perplexity that people who were upset by your behaviour did not simply block you.

[83] Dr Armstrong concluded that the effects of your personality disorder and autistic spectrum disorder should be taken into account in judging your behaviour in relation to the offending.

[84] Further, in his view, a term of incarceration would set back your mental health significantly. He stated that your diagnosis may mean that you experience emotional challenges in a way that is beyond your ability to control in a prison setting. Your impairments in social functioning may place you at significant risk of exploitation by other inmates. He also commented that your propensity to inappropriately express anger may place you at risk of retaliatory violence.

[85] Dr Armstrong also mentioned that you would be vulnerable to developing worsening depressive symptoms and a general deterioration in your mental state if imprisoned. He also noted there is a risk you will self-harm. He therefore stressed the importance of your work as having an important social and rehabilitative influence in your life. You told him that you had been offered your “dream job” of building competition trucks and winch trucks.

[86] Ultimately, Dr Armstrong stated that you required ongoing and significant input from community mental health services, preferably in the form of Dialectal Behavioural Therapy. This is aimed at helping you manage deliberate self-harm and coping with your strong emotions. He says this would not be available to you in the prison environment. He strongly recommends a non-custodial sentence.
[87] The Crown accepts the report generally. It accepts Dr Armstrong’s assessment of the effects of imprisonment on you as material risks, but it submits that all prisoners might develop worsening depressive symptoms and a general deterioration in their mental state.

[88] The Crown also submits that there is no basis to conclude that your condition had any causative link to the offending and that you were well aware of the impact of your words and actions on the victims. There is evidence to support that submission. In relation to B, you commented on Facebook under one of the photographs, “people wana treat me like shit I’ll treat them the same”. That suggests you were aware of the impact of your offending.

[89] In relation to D, when she told you to leave her alone you called her a whore and said, “have fun with your career going down the drain after those photographs get posted”. In my view, this does show that you were aware of the consequences on your victims.

[90] I accept that your conditions did not directly cause your offending. But they are related. You have struggled with social relationships throughout your life. Notwithstanding my view that there is some evidence that you did have some awareness of the effects of your offending, I acknowledge the expert opinion of Dr Armstrong to the contrary. However, in my view, this does not excuse your behaviour. But it helps explain it to an extent. On the other hand, I note that any lack of insight may tend to suggest that you are at greater risk of reoffending.

[91] I take into account Dr Armstrong’s opinion that imprisonment will negatively impact your mental health. There are material risks of imprisoning you. This is a relevant consideration.²⁶

[92] This morning Ms Jayanandan raised orally the question of a discount for youth. In response, Mr McCaughan submitted that given the nature of the offending, that it extended over two years and that it was not impulsive one-off offending for which a discount might be given, there should be no discount.

²⁶ Sentencing Act, s 8(h).

[93] However, I make a small discount which I include as part of the discount for mental health issues.

[94] I give you a 20 per cent discount to allow for mental health issues and your youth. In other words, 10 months. That brings the sentence down to three years and two months’ imprisonment.

Remorse

[95] I am told you did offer to take part in a restorative justice process but the victims did not wish to go through with it. I therefore give you a discount of 10 per cent for remorse, namely four months. That brings the sentence to two years and 10 months’ imprisonment.

Guilty plea

[96] Finally, I address the discount for your guilty plea.

[97] A defendant is entitled to a reduction in sentence for a guilty plea.²⁷ But any reduction cannot exceed 25 per cent.²⁸ In this regard, the Supreme Court in Hessell v R stated:²⁹

[75] ... Whether the accused pleads guilty at the first reasonable opportunity is always relevant. But when that opportunity arose is a matter for particular inquiry rather than formalistic quantification. A plea can reasonably be seen as early when an accused pleads as soon as he or she has had the opportunity to be informed of all implications of the plea.

[98] Here, the Crown submits that you are entitled to a discount of up to 15 per cent for your guilty plea. It notes the strength of the Crown’s case, especially as a number of the victims’ allegations were based on electronic records either provided by the victims or located on your cell phone. However, it accepts that there have been significant benefits for each of the victims due to your guilty plea.

²⁷ Hessell v R, above n 7, at [73].

²⁸ Hessell v R, above n 7, at [75].

²⁹ Hessell v R, above n 7.

[99] Ms Jayanandan, on your behalf, submits that you are entitled to a substantial discount for your guilty plea, namely the full 25 per cent. She notes that you avoided a waste of valuable Court resources, as well as sparing the victims the indignity of having to come to Court and discuss their past behaviour which could be frowned upon, but also could be highly stressful and embarrassing to them.

[100] Ms Jayanandan further submits that your late guilty plea was as a result of change of counsel, engagement with Dr Armstrong, and a shift in the witness statements which eroded an available defence. However, on hearing from Mr McCaughan today, while further evidence became available, in my view it was not a significant shift.

[101] You pleaded guilty on 15 November 2017. This was after Moore J had dismissed two charges against you on 25 October 2017. But still there were eight charges remaining and your plea was entered one week before the trial in the face of a strong Crown case, supported as it was by documentary evidence.

[102] I consider in all the circumstances you are entitled to a substantial discount but not the full 25 per cent discount. I give you a discount of 20 per cent. In other words, seven months. That brings the sentence to two years and three months’ imprisonment.

Sentence

[103] Mr Blackwood, would you please stand.

[104] On each of the charges of blackmail, you are sentenced to two years and three months’ imprisonment. Those sentences are to be served concurrently.

[105] On the charge of causing harm by posting a digital communication, you are sentenced to six months’ imprisonment. That sentence will be served concurrently with the lead sentence on the charges of blackmail.

[106] On the charge of intimidation, you are sentenced to one month’s imprisonment. That sentence will be served concurrently with the lead sentence on the charges of blackmail.
[107] I also make an order, by consent, for destruction of your cell phones located by the police.

[108] Stand down please.








Gordon J