R v Waine [2017] NZDC 4615 (24 November 2016)

Last Updated: 19 June 2017

EDITORIAL NOTE: PERSONAL/COMMERCIAL DETAILS ONLY HAVE BEEN DELETED.

IN THE DISTRICT COURT AT AUCKLAND

CRI-2015-044-004701 [2017] NZDC 4615

THE QUEEN

v

_{MICHAEL ALEXANDER WAINE}

Hearing:	24 November 2016
Appearances:	S Navot for the Crown J F Mather for the Defendant
Judgment:	24 November 2016

_{NOTES OF JUDGE N R DAWSON ON SENTENCING}

[1] Mr Waine, you appear in Court today for sentencing on a charge of causing harm by posting a digital communication. This is an offence that has a maximum sentence of two years’ imprisonment.

[2] The complainant in this matter is a [age deleted] female who had met you through the Internet chat site during [date deleted]. You eventually met and developed a sexual relationship which lasted several months.

[3] During this time you took a number of photos on your cellphone of the complainant while she was naked and some of her also when you both engaged in sexual intercourse. She had also sent you about four photos of herself wearing her underwear and partially naked.

[4] She later told you, on a number of occasions, that she was uncomfortable with you having these images and took it upon herself, while you were still seeing

R v MICHAEL ALEXANDER WAINE [2017] NZDC 4615 [24 November 2016]

each other, to sit down with you to get you to delete the images from your phone and she thought that was all of the photos.

[5] Towards the end of [date deleted] she ended the relationship with you, which you had difficulty accepting. On [date deleted you engaged in a text conversation with the complainant. During the conversation she asked if you had retained any of the naked images of her and you confirmed that you had. She asked that you delete the images which you refused.

[6] You then continued a text message conversation throughout the day and you began to ask the complainant for sex. You asked if she would perform a number of sexually explicit acts upon you in return for deleting the images. She protested and began to ask what would happen if she declined your offer. You replied that you would share the images via the Internet with her friends and parents by 8.00 am the following morning if she declined.

[7] She believed your threats to such a degree that she texted you back agreeing to have sex with you against her wishes to prevent the images being sent to anyone. She was so overwhelmed by the upcoming deadline that she expressed her fears to a family member and went straight to the police that same day.

[8] I note that you are 25 years of age; you have no convictions on your record whatsoever.

[9] I have read and heard the submissions on your behalf from Mr Mather. I have read the pre-sentence report, the restorative justice report, your letter to the Court and the letters in support from family and friends of yours.

[10] Under the Sentencing Act there are a number of factors I have to take into account. First is to hold you accountable for the harm you caused to the victim and to consider the imposition of a sentence that will promote within you a sense of responsibility. In other words, get the message home to you, you cannot do this again and it is unacceptable for the community to have this sort of behaviour happen.

I also denounce your conduct, your behaviour and threats were quite frankly despicable.

[11] Given you have no previous convictions your rehabilitation needs to be considered also.

[12] There are aggravating factors to your offending. The first is the abuse of trust in relation to the victim to have kept photos of her notwithstanding her constant requests that you delete them. It was disgraceful of you not to do so. She was vulnerable because of her particular mental state at the time which she had communicated to you, but it did not stop you. There was also a degree of premeditation involved in that you could have stopped this behaviour, but you did not, you continued with it throughout the course of the day.

[13] In mitigation you entered a guilty plea on the morning of the trial which entitles you to a small discount of approximately five percent. You have also expressed your remorse both by your letter and by attending the restorative justice programme and doing so there.

[14] Another mitigating factor is that you have no previous convictions and you have made an offer of reparation which the complainant has declined.

[15] The probation report states that your level of remorse is minimal and you shifted blame on to the victim on numerous times throughout the interview. It indicated you felt this was just a silly mistake which has been blown out of proportion.

[16] Factors relating to the offending and the matters are identified as offending- related attitudes and alcohol use. Your risk of harm and your risk of re-offending are assessed as low.

[17] The restorative justice report is more positive about your remorse and it is clear that you did express your remorse and apologies to the victim and the people at

the restorative justice hearing. The complainant herself accepted that you were remorseful and indicated that she did forgive you.

[18] You have made an application pursuant to s 106 to have the charges against you dismissed without a conviction.

[19] The first thing I need to do is to consider the gravity of your offending. You possessed digital images of the complainant while she was naked and also while she was engaged in sexual intercourse. They are images of the most intimate and personal kind. You threatened to send these images to her parents and friends, persons that she would least want to see these images. She asked and pleaded with you to delete these images, but you did not.

[20] You attempted to require her to perform a number of sexually explicit acts upon you over an extended period of time in return for your deleting images. You must have known that she took your threat seriously as she agreed to comply with your demands, notwithstanding that it was clear that she did not want to and she was only doing so out of desperation.

[21] You knew that she was particularly vulnerable due to her mental state at that time, but you continued the demands over some hours.

[22] Your affidavit affirming that you felt emotionally bruised by the ending of your relationship with the victim and that she did not want to have sex with you and that you would not publish the images may or may not be correct. What is important is that you were well aware that the complainant believed that you would. Your behaviour shows that you could not let go even though your relationship with the victim clearly was over and you used the images at best to torment her and at worst to try and engage in sexual relations with her that she definitely did not want to participate in. The gravity of your offending for this offence is therefore relatively high.

[23] I then need to assess the consequences of a conviction. The first consequence is you would acquire a first conviction. You also aspire to start your own company

and that could affect your current employment. You would also like to visit your mother and siblings in South Africa and step-sisters in Australia and a conviction may make that more difficult. There is also, what I have had described to me, a high possibility of deportment from New Zealand because of your existing residential status.

[24] A first conviction is a natural consequence of offending and it is in your interests and the interests of the community not to impose a conviction if the offending is trivial and an offender is truly remorseful and is unlikely to offend again.

[25] This is not a trivial offence and you have indicated remorse and insight. You have not produced any evidence to show that you cannot continue in your current employment or start your own company in the future or necessarily be prevented from travelling overseas if a conviction is entered.

[26] You are effectively asking the Court to assume that this will be the case. The High Court decision of Solicitor-General v Mohib1 makes it clear that this Court should not usurp the functions of the Immigration Authorities. Whilst a conviction today may trigger the process a consequence of deportment is not inevitable. I am also not satisfied the conviction will lead to a real and appreciable risk of your ongoing and future employment.

[27] I then need to consider the proportionality of a conviction with the offending. The gravity of your offending is high for this offence and a consequence to conviction lower. Notwithstanding your attendance at a restorative justice meeting, your full apology to the complainant and the insight into your offending, none of this gets over the fact that the complainant has had her personal and intimate sexual moments revealed to her family and friends because of your behaviour. These revelations and the embarrassment suffered by the complainant cannot be put right by an apology and the insight that you are now showing.

_{[28] The application for a discharge pursuant to s 106 is declined.}

1 Solicitor-General v Mohib [2016] NZHC 1908

[29] The complainant does not want you to go to prison, but that decision is made by the Court and not by her. I do, however, take into account her views.

[30] In all the circumstances a sentence of imprisonment would not be an appropriate outcome to address that this offending, given the subsequent restorative justice meeting and the remorse expressed and apology accepted.

[31] You inflicted upon the complainant exactly the type of emotional harm this particular legislation was enacted to prevent.

[32] I am therefore sentencing you to 150 hours’ community work and 12 months’

supervision. The conditions of supervision are those set out in the probation report.

(a) You are to attend and complete an appropriate programme to the satisfaction of a probation officer. The specific details of the appropriate programme shall be determined by the probation officer.

(b) You are not to associate with or contact the victim without the prior written approval of the probation officer.

N R Dawson

District Court Judge