R v Lothian [2022] NZDC 7237 (27 April 2022)

Last Updated: 27 February 2023

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

IN THE DISTRICT COURT AT NAPIER I TE KŌTI-Ā-ROHE KI AHURIRI

CRI-2020-020-003246

[2022] NZDC 7237

THE QUEEN

v

DAVID JAMES LOTHIAN

Hearing:	27 April 2022
Appearances:	M Blaschke for the Crown W Hawkins for the Defendant
Judgment:	27 April 2022

NOTES OF JUDGE G MATENGA ON SENTENCING

[1] David James Lothian is currently before the Court for sentence in relation to one charge of attempted blackmail. The judge-alone trial was held in November of last year and a reserved decision was issued by me earlier this month in which I found the elements of the charge proven and convicted Mr Lothian.

[2] The circumstances of the offending are that at the relevant time which was 14 May 2020 Mr Lothian was a serving prisoner at the Hawke’s Bay Regional Prison where he was serving a life sentence having been convicted of murder. Mr Lothian sent a letter to Mr Nind, an associate of his seeking a combined sum of $3,000 to be paid by instalments to the prison bank accounts of himself and an associate. Mr Lothian stated in the letter that if Mr Nind did not comply with his request that he would send a copy of a statement which Mr Nind had made to police in which Mr Nind

R v DAVID JAMES LOTHIAN [2022] NZDC 7237 [27 April 2022]

had told police of Mr Lothian’s involvement in an aggravated robbery and that that information would be shared amongst Mr Lothian’s associates or indeed, anyone who he could have the opportunity of speaking to. The implication was that Mr Nind would become known as a nark.

[3] At the time that Mr Lothian sent the letter to Mr Nind, Mr Nind was deceased. Mr Lothian did not know that at the time that he posted the letter. The letter was posted by him through the prison mail system. The letter was sent via the prison system to Wellington where it was opened and viewed and the letter was sent back to the prison where it was then referred through to police.

[4] I found, referring to my reserved decision dated 5 April 2022, that Mr Lothian had formed an intention to blackmail Mr Nind and that he sent the letter which communicated the threat with the intention of carrying his plan into effect. This was sufficient to prove the elements of the attempted blackmail.

[5] So I am here today as I said, to sentence Mr Lothian. I am required as Mr Lothian will be aware to take into account the purposes and principles of sentencing as set out in the Sentencing Act 2002. These include holding him accountable. The principles of denunciation and deterrence are factors which need to be considered.

[6] There are also, and I must keep in mind, the fact that Mr Lothian is as I have said currently serving life imprisonment with a MPI of 20 years. The life imprisonment sentence is, as set out in s 23 of the Sentencing Act, an indeterminate sentence of imprisonment and therefore the Court cannot today impose a cumulative sentence. So any sentence of imprisonment which I impose today must be for a definite term and concurrent on the life sentence.

[7] I have received to assist me today submissions from Mr Hawkins on behalf of Mr Lothian, submissions from Mr Blaschke on behalf of the Crown and a pre-sentence report. The pre-sentence report was fairly brief and with respect, lacked the in-depth quality which would have been of further assistance.

[8] The views of Mr Blaschke and Mr Hawkins in their respective submissions are divergent in the sense that Mr Blaschke submits that the appropriate sentence is one of imprisonment. Mr Hawkins suggests that the appropriate sentence is one of either conviction and discharge or come up if called upon. So very different possible outcomes.

[9] Mr Blaschke’s submission is that the sentence should reflect the seriousness of the offending to properly achieve the purposes and principles of sentencing and to use his words, vindicate the public interest. Anything else, it is submitted, would be less than adequate.

[10] Mr Hawkins on the other hand says that no such sentence, that is a sentence of imprisonment, is necessary, that if Mr Lothian were not subject to a life sentence it is highly likely in his submission that a community-based sentence would have been appropriate. I take the point he is getting but Mr Lothian’s other conviction history also needs to be taken into account and it would be in my view highly likely that a court would have started consideration of the appropriate sentence as being the starting point of imprisonment.

[11] Counsel have provided cases to assist reflecting start points of 18 months to three years’ imprisonment. Mr Hawkins says that the Court if it did look at a start point of imprisonment would also need to halve that start point because it is an attempted blackmail and not a blackmail. However, I note that of course the legislation provides for that difference in the offence by reducing the maximum penalty for blackmail from 14 years to seven for an attempt.

[12] A principled approach as suggested by Mr Blaschke is that the Court should really go to first principles which is to look at the factors for consideration, to look at the culpability and criminality and then start from there. And so that is what I propose to do.

[13] The factors for me to consider then are that this is an attempted blackmail and there are some similarities with the offence of attempting to pervert the course of justice.

[14] The offence of attempted blackmail does strike at the heart of justice in the similar way that attempting to pervert the course of justice which is that is an attempt to subvert the court’s core principles or the core principles of justice.

[15] Mr Blaschke made the point that this was an attempt to intimidate and to punish or, to use Mr Lothian’s words to ‘tax’ or extract a tax from Mr Nind. This was against a threat of being labelled as a nark, the point being to instil fear in the mind of the intended victim. It is submitted that this requires a stern response from the Court and that is a submission which I accept in my view a start point of anything less than imprisonment would be inadequate.

[16] As far as this being a victimless crime is concerned I do take the point to some extent but in any case it really does not matter in the circumstances of this case. When Mr Lothian posted the letter he had no idea that Mr Nind was deceased and it is in my view Mr Lothian’s intention at the time that is the criminality which the Court needs to consider and assess in relation to a suitable sentence. I do, however, take the point that the Sentencing Act does ask the Court to take into account the effect on victims of offending and I do that as best as can be done in the circumstance. That is just one of a number of factors and in the case of circumstances of this case it means that there is nothing for the Court to consider under that heading. In other words, it is the absence of an aggravating factor.

[17] As I have already said the key purposes and principles for me to take into account are accountability, deterrence and denunciation. Mr Lothian was at the time that he offended serving a life sentence, that is a recognised aggravating factor. The offending was premeditated and calculated and I made a finding in that regard in that Mr Lothian’s evidence was that he wrote the letter and it sat on his desk in his cell for a few days while he considered whether or not to send it. So therefore I accept that the offending was premeditated and calculated.

[18] Set against that I keep in mind Mr Lothian’s willingness to engage in rehabilitation. In the course of the hearing of evidence Mr Lothian did make some comments in relation to understanding of how and why he is now serving a life sentence. His realisation that it is his own decisions which have put him there, that he

understood that he needed to make some changes and adjustments and that clearly he wants to make those adjustments in his life. He understands that what has happened has happened and that he is unable to go back and change things but can look forward to the future.

[19] I also keep in mind that the Court is required to impose the least restrictive outcome that is appropriate in the circumstances. I take in mind also Mr Lothian’s personal circumstances, his ongoing relationship with [name deleted], the fact that they have seven children. I take into account Mr Lothian’s medical circumstances, the fact that he has cancer that is currently in remission but that, of course, could change at any time.

[20] From my view I consider that the appropriate start point is one of imprisonment, that imprisonment is required to reflect the seriousness of the offending and I start at two years’ imprisonment. Having taken into consideration the matters that I have set out, it is Mr Lothian’s expression of remorse, his personal circumstances I reduce the two years by three months and now impose a sentence on you Mr Lothian, if you will stand please, on this charge of attempted blackmail you will be sentenced to 21 months’ imprisonment. That is to be served concurrently with your existing prison sentence.

Judge G Matenga

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 27/04/2022