R v C HC Wellington CRI-2008-085-4626 [2009] NZHC 2279 (11 December 2009)

Last Updated: 12 February 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CRI-2008-085-4626}

THE QUEEN

v

C

Hearing: 11 December 2009

Appearances: M Snape for the Crown

L Sziranyi for the accused

Judgment: 11 December 2009

_{SENTENCING NOTES OF CLIFFORD J}

[1] Mr C , you appear to be sentenced having been found guilty after a jury trial before me on one count of blackmail.

[2] The crime of blackmail attracts a maximum penalty of 14 years imprisonment.

[3] I find the facts upon which I am to sentence you to be as follows.

[4] In the early hours of Friday 17 October 2008 Mr Toko, an acquaintance of yours, had his van stolen from outside his residence. Some time later, you texted Mr Toko stating that you knew where his vehicle was and that you would be able to get

_{it back for him. You told him, via text messages, that it would cost him $1,300 to}

R V C HC WN CRI-2008-085-4626 11 December 2009

get that van back. You also told him that if he did not pay the money for the van, it would be burnt out.

[5] Mr Toko sought the assistance of the Police who arranged for Mr Toko to be given some cash. The Police placed Mr Toko under surveillance as he travelled with you, first to an address in Lower Hutt and then over the hill to Wainuiomata, in order to get his van back. As part of a pre-arranged plan with Police, Mr Toko said he was not prepared to hand the money over to you, before he had seen and inspected the van. After some time it was agreed by you, in my view after having spoken to the people directly responsible for stealing the van, that this would happen. The van was then driven to an address where you and Mr Toko met. At that point, the Police arrived on the scene. You escaped that evening, and were arrested some days later.

[6] In an interview with the Police, you explained your conduct as having simply been that of a friend, endeavouring to get Mr Toko’s van back for him. At the same time, it became clear that you were to receive $100 yourself in exchange for your role in the process whereby Mr Toko was to pay over the $1,300 and his van was to be returned to him.

[7] By their verdict the jury said they were sure you had either been working with the people who had stolen Mr Toko’s van or that, by communicating their threat that unless he paid the $1,300 Mr Toko’s van would be burnt out, you were helping them to achieve their goal of obtaining money from him.

[8] On that basis, therefore, the jury were sure that you had committed the crime of blackmail and found you guilty accordingly.

The sentencing process

[9] In sentencing you today I am first required to set what is called the starting point for your sentence. That is a sentence which reflects the seriousness of what you did. I then have to adjust that starting point to take account of factors personal to you and your situation that might call for a higher or a lower sentence than the one first identified.

[10] In terms of the Sentencing Act 2002, and the principles and purposes of sentencing, the factors I consider I need to bear in mind here are particularly the need to denounce your offending, to hold you accountable for what you did, and to deter you, and importantly others who may know of what you did, from committing similar blackmail offending. At the same time, I am mindful of the important purpose of rehabilitating you and helping you integrate back into the law-abiding community. The law also says that I am to impose the least restricting sentencing outcome that is appropriate in the circumstances.

Sentencing discussion

[11] Blackmail offending, as the Crown notes in its written submissions, generally attracts a sentence of imprisonment. Given what I accept is the relatively low level of the criminality of your blackmail offending, I think that – were a sentence of imprisonment called for – a starting point in the range of 8 to 10 months’ imprisonment would be appropriate.

[12] I turn now to aggravating and mitigating factors, that is, things personal to you that mean that sentence might have to be increased or reduced.

[13] In terms of aggravating factors, the reality is, as you are well aware, you have numerous previous convictions, including several for dishonesty. It would also appear that this blackmail offending occurred whilst you were subject to bail for other offending.

[14] At the same time, however, I acknowledge – as submitted on your behalf by Ms Sziranyi, and as acknowledged by the Crown – that there is quite a lot to be said in your favour today. I refer in particular to the pre-sentence report that has been prepared by your probation officer.

[15] You have, until recently I understand, been on sentence of intensive supervision and community work for previous offending. The probation officer who prepared the pre-sentence report for this hearing is your supervising probation officer. She has recorded in her report that it is clear you have moved on from the

life that you were leading when this offending took place. You are, by her assessment, very motivated to change.

[16] You have been living in Christchurch since November 2008, more recently with your father and stepmother and other members of your family. Your probation officer notes that you have moved on from an earlier daily cannabis habit, and have changed your circle of associates. Apparently you have arranged full-time work, commencing in mid December, and have expressed interest in further academic studies.

[17] Most significantly, the probation officer expresses the view that the imposition of a sentence of imprisonment would undermine all of the gains she considers you have achieved to date, and that is therefore not something that she recommends.

[18] Taken overall, your probation officer has recommended a sentence of community detention, together with community work. Ms Sziranyi supports that recommendation. The Crown also accepts, notwithstanding the general principle that blackmail offending does call for a sentence of imprisonment, that that would be the appropriate sentence.

[19] I also have a reference from your boxing coach. I accept that, although that is dated April 2009, you have continued with the boxing and that has been a positive influence in your life.

[20] The starting point sentence I have identified would be a sentence of imprisonment of short duration. That does raise the question of the appropriateness of sentences less than imprisonment. On that point, there is the recommendation of your probation officer, supported by both Ms Sziranyi and by Mr Snape for the Crown.

[21] In terms of the possibilities of home and community detention, your probation officer recommends community detention, as this will enable you to start work and to continue your boxing training.

[22] Bearing in mind what I consider to be the relatively low level of the criminality of your offending, and the strong factors in your favour that I have identified, together with the advantages of community detention enabling you to take up some work and to continue with your boxing, I agree that that is the appropriate sentence in your case.

[23] You will therefore be sentenced to community detention. I consider that a period of four months is sufficient here, and in that I take account of the community detention you have already been on in respect of your other offending and that you are to be sentenced for other offending this afternoon in the District Court. The conditions of that community detention will be that the curfew address will be 9

Dalkeith Street, Christchurch. The probation officer recommended curfew hours of between 10.00pm to 7.00am. You have heard the discussion we have had. The curfew hours will generally be 7.00pm to 7.00am but for the nights of Monday, Wednesday and Saturday it will be 10.00pm on the further condition that you attend boxing training during that time. It is not for any other purpose.

[24] An additional sentence of community work has been recommended. Again, you have heard the discussion about that. I do not think there is a lot of point in adding further community work to the community work you already have outstanding, so I decline to impose any further community work.

[25] I do note however, your probation officer’s observation that you have been sluggish – the word she used – in completing community work. Failure to complete your allocated community work will expose you to further sanction in the Court, further punishment. I suggest that you get on with that community work as quickly as possible.

[26] There were references before me to the matters upon which you are to be sentenced in the District Court this afternoon, but I do not think they are matters I can take account of here and I leave those to the District Court.

[27] Accordingly, Mr C , you are sentenced to four months’ community detention on the conditions I have read out in Court this morning.

[28] You are being given considerable credit, based on your probation officer’s report for the steps you have taken over the last year or so. I hope you will continue with those steps and not revert back to your previous pattern of behaviour. If you came back before the Courts again in similar circumstances, you would not be treated the way I have treated you today. I am sure you understand that.

[29] Thank you Mr C , you may stand down.

“Clifford J”

Solicitors: The Crown Solicitor, Wellington for the Crown ([e-mail])

Thomas Dewar Sziranyi Letts, P O Box 31240, Lower Hutt for the prisoner

([e-mail])