R v Leon [2019] NZDC 2841 (18 February 2019)

Last Updated: 23 August 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT HAMILTON I TE KŌTI-Ā-ROHE KI KIRIKIRIROA

CRI-2018-019-006733

[2019] NZDC 2841

THE QUEEN

v

DIANA CATALINA LEON

Hearing:	18 February 2019
Appearances:	S Gilbert for the Crown G Prentice for the Defendant
Judgment:	18 February 2019

NOTES OF JUDGE R L B SPEAR ON SENTENCING

[1] Diana Leon you are for sentence having pleaded guilty at an early stage to one charge of blackmail and another charge of causing harm by posting harmful digital communication.

[2] You take no issue with the summary of facts. [details deleted] In about [date deleted] you came into possession of certain images of the complainant wearing women’s clothing and also unclothed. Those photos were found in a portable hard drive belonging to you.

[3] The offending that is of greatest concern is the first charge of blackmail. That offending arises because you contacted the complainant [details deleted] and threatened to make photos public that showed him dressed as a woman and naked

R v DIANA CATALINA LEON [2019] NZDC 2841

unless he paid the amount that you say was owed to you; an amount just over $2000. You repeated that extortionate demand a few days later.

[4] You did not receive the money and the second offence was then committed by you because you posted photos of the complainant on five media sites, one of which contained over 91,000 members. The images showed the complainant dressed as a woman, identified him by his full name, asserted that he was a homosexual and that he owed you money. This was untrue because he is not homosexual and denies being so and was in a heterosexual relationship at the time. The posting of those images on [social media] caused him a great deal of distress and disruption to his private life. He lost social relationships. It caused difficulties in his own relationship.

[5] One matter that I have taken particular notice of is that you have been in New Zealand for about eight years having emigrated from Columbia. You have maintained at different times that you were not aware that what you did was wrong. Indeed, when interviewed by the probation officer, you showed an unwillingness to acknowledge that you had caused any harm to the complainant. You failed to acknowledge how your actions were irresponsible and reckless and you claim to have a lack of understanding of New Zealand’s electronic usage laws. Apparently there are family members who support you, who join with you to criticise the laws of this country and that it has been asserted that it would not be a crime to do this in Columbia.

[6] Let me tell us this in very clear terms. You have made a decision to come to this country and you are now subject to the laws of this country. You are expected to know them just as any other person is. Frankly, I do not accept what you say, that you did not know that this would be against the law. I consider that you are attempting to minimise your actions. Threatening to do harmful deeds to try and extract money from somebody is blackmail in this country and I have no doubt at all under the laws that apply in Columbia it would be blackmail in that country as well. Whether it would be treated as seriously as it is in this country is beside the point.

[7] What I need to tell you is blackmail is a crime in New Zealand that is treated very seriously indeed. It is such an easy crime to commit but it is a crime that is very hard to prove in many instances. It can have devastating effects.

[8] Your blackmail actions are not at the most serious level and I accept counsel’s view in that respect. It is a crime that carries with it a maximum of 14 years’ imprisonment which tells you how seriously it is considered in this country.

[9] I have listened carefully to counsels’ submissions. They are well apart when it comes to assessing what the starting point should be for this offending. I am inclined towards Crown’s submissions that charges 1 and 2 need to be treated as quite distinct offences; the first being the threat and the second being the actual action of carrying it out. However, I accept what Mr Prentice has contended that the images posted were not as damaging or as harmful to the victim as could have been the case because of the cropping that it applied. They were of course accompanied by hurtful comments by you as to the complainant’s sexuality.

[10] You underwent a restorative justice conference and I have read that carefully a couple of times. It is quite short. You have said that you are remorseful but I have to tell you I think that you are more remorseful for the predicament that you are in, rather than for the harm that you have caused the complainant. I consider that it is charitable indeed of that man to have accepted that apology given the attitude you have taken as identified in particular by the probation officer. While I consider that there may be some remorse, I am also conscious of the fact that there must be a question mark as to how genuine that remorse is insofar as the harm done to the complainant. The blackmail charge is a serious charge but this is not the most serious form of it. I adopt the starting point of 18 months’ imprisonment.

[11] For posting those harmful digital images and comments on those websites I lift that by six months and that in my view will reflect the totality of the offending, 24 months’ imprisonment.

[12] You have no previous convictions and of course at 28 years of age, having been in this country for eight years, you are entitled to have that taken into account. At least by participating in the restorative justice conference you have provided some relief to that complainant. For those matters I will reduce the sentence calculation by six months than what was otherwise be the case.

[13] You are entitled to full credit of 25 percent for your early guilty pleas and that brings me down to a sentence calculation point of 13 months’ imprisonment.

[14] In the pre-sentence report a probation officer does not consider that you are a suitable person for an electronically monitored sentence, notwithstanding the property you propose is technically feasible for it and that is primarily because of your attitude and that of your family members. They join with you apparently condone to what you did and they are critical of this country’s legal system. The Probation Service says that management of you on an electronically monitored sentence is likely to be challenging in such an unsupportive environment. They also consider you to be unsuitable for an electronically monitored sentence. Whether you are unsuitable or not is going to be worked out very quickly because if you breach your sentence of home detention, and that is the sentence I am going to impose on you, then I am going to have you back before me and you are going to go to prison. You will not get a second chance and I ask the probation officer to take particular notice of this direction. One breach unexplained, without a reasonable excuse, and I will want to know about it. I will be entitled to bring you back before me and I will send you to prison - be in no doubt about that.

[15] Taking both charges 1 and 2 together on both of those you are placed under home detention for a period of six months. That will be at [address deleted].

[16] The special conditions are as set out in the pre-sentence report. In summary, to attend an appropriate programme to address your offending and not to associate with the complainant without prior written approval. This will be followed by six months’ post-detention conditions which will include again non-association with the complainant and completion of any special conditions from home detention.

[17] That sentence will be monitored by me so every three months I am going to get a report on you. If I do not like what I read about your attitude, about your compliance with the sentence, I will have you back before me and I have explained to you what is going to happen.

[18] You will also carry out 100 hours’ community work. I know you have a one-month old child. You are simply going to have to make arrangements for child care when you are able to leave the child. However, you need to be held fully accountable for what you have done here as this is a serious crime in this country.

Judge RLB Spear

District Court Judge

Date of authentication: 06/03/2019

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.