The Queen v Warne [2007] NZCA 353 (16 August 2007)

Last Updated: 23 August 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA174/07

[2007] NZCA 353

THE QUEEN

v

BRENDON ALLAN WARNE

Hearing: 26 July 2007

Court: Wilson, Panckhurst and Venning JJ

Appearances: V C Nisbet for Appellant
S B Edwards for Crown

Judgment: 16 August 2007 at 10am

JUDGMENT OF THE COURT

The appeal against a sentence of two years three months imprisonment is dismissed.

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REASONS OF THE COURT

(Given by Panckhurst J)

Adequate recognition of a plea and reparation?

[1] The appellant pleaded guilty to a charge of threatening to make an accusation with intent to obtain a benefit, (blackmail), and was sentenced to 21 months imprisonment. In imposing sentence, the Chief High Court Judge, Randerson J, identified a starting-point of two and a half years imprisonment and made a reduction of nine months, in order to arrive at the effective term. This appeal against sentence represents a challenge to that reduction. Counsel maintains that the plea of guilty, and the payment of reparation in the sum of $4,000, warranted a greater reduction than the 30 per cent which was allowed by the Judge.
[2] A second ground of appeal is that Randerson J was wrong to decline leave to apply for home detention.

The facts relevant to the offending

[3] The appellant was charged that in January 2006 he threatened to make an accusation against the complainant with intent to extort a motor vehicle, or else the accusation would become the subject-matter of a complaint to the police.
[4] The complainant was employed as a salesman in a car yard. On 20 January 2006 the appellant went to the yard and accused the complainant of having sexual intercourse with a girl aged 15 years. The complainant acknowledged that this had happened. The accused said he was a member of the local Black Power gang. He told the complainant that he knew where he (the complainant), and his parents, lived. The accused posed two options: either the complainant could secure two motor vehicles, one each for the appellant and the 15 year old girl; or a complaint would be laid with the police. The latter would result in a jail sentence and the complainant would be exposed to the attentions of Black Power members in prison.
[5] The complainant was given until 27 January 2006 to obtain the two vehicles. The appellant gave the complainant a piece of paper upon which was written his first name and cellphone number so that the complainant could contact him. The appellant also told the complainant that he wanted a Nissan Skyline and that the girl required a “boy racer” type car.
[6] On 24 January the appellant again visited the yard and told the complainant that only one motor vehicle was required. He said the girl had decided she did not wish to have one. He reiterated the requirement that the vehicle be available by 27 January. The complainant indicated that he did not have the ability to raise finance to pay for a vehicle, but the appellant remained insistent.
[7] The complainant went to the police. On 26 January he telephoned the appellant and the call was monitored by the police. The appellant repeated the demand for the vehicle and threatened that if it was not delivered to him he would be unable to exercise control over young associates of the Black Power gang.
[8] On 27 January the police spoke to the appellant. He denied that he had been involved in blackmailing the complainant. Subsequently, the complainant and his family were the subject of intimidation by persons connected with the local Black Power gang.
[9] The appellant pleaded guilty on arraignment in February 2007. He was sentenced by Randerson J on 21 March 2007.

Was the reduction for the plea, and for payment of reparation, sufficient?

The plea of guilty

[10] In sentencing the appellant, the Judge described blackmail as an “insidious and abhorrent crime”. We agree. The fact that this blackmail was characterised by persistence and the deliberate use of the appellant’s gang involvement was rightly viewed as a serious aggravating factor.
[11] The offence had a profound effect on the victim. His victim impact statement referred to his being “ill with worry”. In the end result he left his home town and commenced a new life outside New Zealand. He experienced difficulties in settling in a new country, and he was distressed when required to return to New Zealand to give evidence at the preliminary hearing.
[12] We are in no doubt that the starting-point of two and a half years adopted by the Judge was appropriate. Mr Nisbet did not suggest otherwise.
[13] The guilty plea was entered late. The trial was scheduled to proceed on Monday, 19 February 2007 and the appellant was arraigned and entered the plea on 13 February. This was six months after committal and more than a year after the crime was committed.
[14] The Judge allowed a six month (or 20 per cent) reduction for the plea.

The offer of amends

[15] The appellant raised $4,000, which was paid into a trust account by way of an offer of reparation. Randerson J ordered reparation in this sum on account of the losses and emotional harm sustained by the complainant as a result of the offence.
[16] A further three months (10 per cent) reduction was made by the Judge in recognition of the offer of reparation. This resulted in the final sentence of one year nine months imprisonment.
[17] In his notice of appeal, the appellant expressed as a ground of appeal that the $4,000 represented every cent he had been able to scrape together in over a year. The appellant added that had he known he would only get a three month reduction, he would rather have served the extra three months imprisonment, than pay reparation.

Conclusion

[18] We are not persuaded that the 30 per cent allowance made by Randerson J in recognition of the guilty plea, and the payment of reparation, was insufficient. The six month (20 per cent) reduction for the plea was well within range, given the lateness of the guilty plea.
[19] The offer of reparation was accompanied by a letter of apology written to the complainant. In light of the contents of notice of appeal, it may be questionable whether the appellant was genuinely remorseful, or whether the only reason for his offering reparation was to secure a reduction in the sentence. In any event, the Judge properly took into account the reparation payment, as he was required to do in terms of s 10(1) of the Sentencing Act 2002. Again, we regard the allowance for this aspect as within range. Perhaps it deserved slightly greater recognition, but, if so, that is compensated for by the significant recognition which was accorded the belated plea. In other words, the 30 per cent reduction for both elements, and for other mitigating features referred to by the Judge, was within range.

Was it appropriate to decline leave for home detention?

[20] The Judge considered that, having regard to the seriousness of the offending, leave to apply for home detention was not appropriate.

...

Mr Nisbet submitted that the Judge had failed to take into account the offender’s personal circumstances as required by s 97(3)(b) of the Sentencing Act.

[21] It is the case that the Judge did not expressly refer to the appellant’s circumstances and background when he considered the question of leave. However, earlier in his sentencing remarks, Randerson J noted that the appellant had not offended in any significant way for about 12 years, referred to the offer of financial amends and remorse, and noted that there was a prospect of the appellant’s admission to a residential rehabilitation programme at Odyssey House in Auckland, if a community-based sentence was imposed. It is obvious from these references that the Judge was well aware of the appellant’s circumstances and background, and no doubt of his family responsibilities as well.
[22] The exercise of discretion required to determine whether it is appropriate to grant leave involves a balancing of the nature and seriousness of the offence, the offender’s circumstances and relevant matters in the victim impact statement. Often, one factor may predominate. Here, the seriousness of the offence and the impact on the victim, were highly significant considerations. We think it unremarkable that the Judge focused on the seriousness of the offence, without further reference to the appellant’s personal circumstances, when declining leave to apply for home detention. We are unpersuaded that the discretion was wrongly exercised.

Result

[23] For these reasons the appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington