R v Pitcaithly [2022] NZDC 10745 (18 February 2022)

Last Updated: 3 August 2022

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

IN THE DISTRICT COURT AT AUCKLAND I TE KŌTI-Ā-ROHE KI TĀMAKI MAKAURAU

CRI-2020-044-004039 CRI-2020-004-003939

[2022] NZDC 10745

THE QUEEN

v

BLAIR JAMES PITCAITHLY

Hearing:	18 February 2022
Appearances:	B Tantrum for the Crown R Mansfield for the Defendant
Judgment:	18 February 2022

NOTES OF JUDGE M-E SHARP ON SENTENCING

Introduction

[1] Blair James Pitcaithly accepted a sentence indication from me and pleaded guilty to a very large number of charges, which are contained within schedule A to Mr Mansfield’s updating memorandum of 16 February 2022 which is to be attached to these sentencing notes. The charges to which he has pleaded guilty are, variously, two burglaries, obtaining by deception, theft (x 2), unlawful conversion, using a document for pecuniary advantage (x 4), and unlawfully taking motor vehicles (x 2), possession and use of utensils and methamphetamine, possession of offensive weapon, procuring/possession methamphetamine and receiving property.

[2] Three of the using documents for pecuniary advantage were in respect of applications made under the Small Business Cashflow Loan Scheme and a fraudulent

R v BLAIR JAMES PITCAITHLY [2022] NZDC 10745 [18 February 2022]

tax return to the IRD. Both burglaries involved theft of substantial items, one the theft of a boat, trailer and registration from [name deleted], and the other substantial item was not the result of a burglary but rather theft of a Toyota Hilux, it would appear, from Hirepool.

Reparation

[3] There are varying amounts of reparation sought: large amounts, and there is emotional harm reparation sought in respect of a $50,000 boat, trailer and registration for which the owner was not insured. There is also emotional harm reparation sought for some of the obtaining by deception charges, reparation of $600 on charge number ending -6091, theft of items from a car, and two amounts of reparation, one being in the sum of $1,529 and the other $755.65, to [a second company] which is the victim in respect of charge number -6090.

Summary

[4] All in all, there are 32 charges. They all represent separate instances of fraud or dishonesty prosecuted through seven lots of proceedings managed by three prosecutorial agencies: the Crown, the police and the Commissioner of Inland Revenue.

Sentence indication

[5] In my sentence indication remarks I stated that Mr Pitcaithly did not, at first blush look as if he was in a position to receive anything but a very stern sentence of imprisonment given the number of charges and given his fairly appalling criminal record. But, as I went on to say, my mind was changed because of Mr Pitcaithly’s personal physical and mental circumstances which have changed dramatically. I repeat the remarks that I made during the sentence indication hearing: Mr Pitcaithly was savagely attacked whilst on remand in prison and suffered a very serious traumatic brain injury. I allowed him bail at the sentence indication hearing and indicated an electronically monitored one because of his need for rehabilitation which he could not

have in prison. Mr Pitcaithly also suffers from [a neurodevelopmental condition] and has an alcohol and gambling addiction.

[6] With the exception possibly of the police, other prosecutors are ad idem that Probation’s recommended combination of sentences of community detention and intensive supervision is appropriate under all of the particular circumstances which Mr Pitcaithly faces. The police seek a sentence of home detention, not the least because Mr Pitcaithly is completely unable to make any reparation and there are a number of people and organisations seriously out of pocket, including the Commissioner of Inland Revenue which means that all of New Zealand taxpayers suffer, in fact.

Personal background

[7] Mr Pitcaithly is 39 years of age. He began to offend in 2002, mainly dishonesty, driving and two violence related offences. His fraudulent and dishonest offending driven by a gambling addiction and drug and alcohol addictions, have really in the past made him a scourge. He has certainly caused great harm to many, many people during his life.

[8] Notwithstanding that, he has no recorded breaches against him of previous community-based sentences. He successfully completed all sentences imposed on him without breach, including intensive supervision, supervision, community work and release on conditions. Equally, he was compliant with an EM bail order of 22 October 2021 and his ability to comply with both EM and community-based sentences is well assessed.

Efforts at rehabilitation

[9] Clearly, Mr Pitcaithly offended as a result of his addictions and the need to obtain money to feed them. However, he appears to be clean from gambling since his offending and has not touched any alcohol or drugs for over two years and six months. Since he has been on EM bail he has participated in a large number of rehabilitative interventions including Odyssey House, Narcotics Anonymous, Anonymous

Gambling Support, Oasis, Salvation Army Bridge Programme and The Turning Point rehab clinic five days a week in Maraetai, Auckland.

[10] The Salvation Army Oasis agency confirms Mr Pitcaithly’s attendance at their gambling programme and that his progress with them has been good so far. The facilitator at The Turning Point rehab clinic also advises that Mr Pitcaithly has been engaging well in all their alcohol and drugs programmes and participates in their relapse prevention group sessions with a positive attitude. All in all, Mr Pitcaithly is doing excellently, especially given the severity of his brain injury which has caused a number of very serious permanent effects such as [details deleted].

[11] Mr Pitcaithly has spent his EM bail at his family’s property. His father is here today supporting him and I can only say, Mr Pitcaithly, that you are extremely lucky to have such a supportive family and father.

Assault in prison

[12] The serious assault that Mr Pitcaithly was subjected to in prison left him [details deleted]. He lost three years of memory and had to relearn to walk and talk again. He could not remember his parents or his brother or son and, as I say, he still suffers short term memory loss.

[13] Whilst his brain injury is severe and was an appalling occurrence given that the State has a duty to keep its prison inmates safe, it may have had a slight silver lining in that it may just have arrested Mr Pitcaithly’s criminal tendencies and allowed, if not required, him to finally and forever address his addictions. Had the very serious assault on him not occurred leaving him permanently impaired I make no bones about it, Mr Pitcaithly would have been serving a substantial term of imprisonment on all of these charges, but he is entitled to a very substantial discount, at least 50 per cent, and another discount for his guilty pleas of course, because of his brain injury.

Less restrictive outcome

[14] That being so, the community-based sentences which I had in mind in the beginning, or at least at the end, of the sentence indication exercise and which are supported by Probation in its report, are the least restrictive outcome that is appropriate in all the circumstances and will in the particular and unusual circumstances of this case serve justice well.

[15] I am satisfied that Mr Pitcaithly, by a combination of community detention and intensive supervision, will have met the purposes and principles of the Sentencing Act 2002. They are sufficient to deter him from offending again. They are the least restrictive outcome that is appropriate and they do and will address his rehabilitation, which we all hope will be permanent.

[16] A technical feasibility check was completed at Mr Pitcaithly’s parents’ address of [address deleted]. It is technically feasible for EM sentences and Mr Pitcaithly has been serving his EM bail there with no concerns. He lives there with his mother and his father who are providing transport for him to all of the places that he needs to go.

Sentence

[17] So without further ado but acknowledging that there are large amounts outstanding in reparation which the defendant has absolutely no hope of meeting, I consider that a sentence of 12 months’ intensive supervision with special conditions, that I will name shortly, and community detention for six months at the address that I have mentioned, during a curfew period of 9 pm until 6 am with the first curfew to begin one working day after sentencing; Mr Pitcaithly is to phone [number deleted], option 2, Otara, and ask to be put through to the duty officer on Monday, 21 February.

[18] I am very concerned about the lack of reparation and I do acknowledge that the defendant has been offered carpentry-type work. It remains to be seen whether he will be able to undertake employment of any sort let alone full-time and because of that, I do not consider that it would be of any assistance to anybody to now burden him with a reparation order that he may never be able to meet. It is always a very difficult job

to determine that there should be no reparation order made where there have been substantial losses by completely innocent citizens and I do feel very badly about that in this instance. But setting the defendant up to fail, as I fear that he would, is simply not going to aid in his rehabilitation and what the public needs is to see a completely rehabilitated defendant who will not darken the doors of the Court again, to be frank.

[19] On all charges, six months’ community detention, conditions as I have spoken of, and 12 months’ intensive supervision with these special conditions. The defendant is not to possess, consume, or use any alcohol or drugs not prescribed to him. He is to attend and complete an appropriate gambling support service to the satisfaction of a probation officer. The specific details shall be determined by a probation officer. Mr Pitcaithly is to attend and complete an appropriate alcohol and drug programme to the satisfaction of a probation officer. The specific details of the appropriate programme shall be determined by a probation officer. Lastly, he is to attend an assessment for any counselling, treatment, or programme as recommended by the assessment and as directed by a probation officer and he is to attend and complete any counselling, treatment, or programme recommended by the assessment as directed by and to the satisfaction of a probation officer.

[20] In respect of the charges of possession of methamphetamine, a weapon, utensils, theft of a registration plate, I now make an order for destruction.

M-E Sharp

District Court Judge