R v Nicholls [2012] NZHC 1334 (13 June 2012)

High Court of New Zealand

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R v Nicholls [2012] NZHC 1334 (13 June 2012)

Last Updated: 11 July 2012

PUBLIC VERSION

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

1985.

THE MATTERS REFERRED TO IN PARAGRAPHS [9] AND [11] ARE UNDERSTOOD TO BE SUBJECT TO EXISTING SUPPRESSION ORDERS. PUBLICATION OF THESE MATTERS IS PROHIBITED PENDING CLARIFICATION OF THE EXISTENCE OF SUCH ORDERS.

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2011-042-3554 [2012] NZHC 1334

THE QUEEN

v

SAMUEL MARK NICHOLLS

Hearing: 13 June 2012

Counsel: J M Webber for the Crown

A J Bamford for Samuel Nicholls

Sentence: 13 June 2012

_{SENTENCING REMARKS OF MALLON J}

[1] Mr Nicholls, you appear for sentencing today, having pleaded guilty to a charge of blackmail.1 The maximum penalty for that offence is 14 years’

_{imprisonment.}

1 _{Section 237 of the Crimes Act 1961.}

R v NICHOLLS HC NEL CRI 2011-042-3554 [13 June 2012]

[2] The circumstances giving rise to the charge were as follows. You and the complainant both had profiles on “Bebo”. Bebo is an internet social networking site. A user can send a “friend” request to another user. If the person receiving the request accepts the request, the users can then chat online and exchange personal messages.

[3] Sometime in 2010 you and the complainant became “friends” on the site and exchanged cell phone numbers. After that you exchanged text messages. In the course of these exchanges you asked the complainant to send to you naked pictures of herself. She sent two such pictures.

[4] Most of your communications were via the internet or through text messages. However, you did meet on one occasion in May 2011.

[5] On the morning of 9 August 2011, over a period between 8.30am and just after 10am, the complainant received over 20 text messages from you. The messages began with you wanting the complainant to come to your place. When the complainant replied saying that she did not want to and was busy, you replied with “shall I send those photos of you naked then”. The complainant told you to delete them. You said that you would delete them if the complainant had sex with you. The complainant told you that she had a boyfriend and that she was not going to go to the house and have sex with you. You sent a further message saying that if she did not then her photos would be “everywhere”. You sent a further text saying that you would send the photos in two hours unless she got someone else to go to your place and have sex with you. The complainant replied that she did not know anyone and asked “Why me. I have no money”. You then sent a text saying “Then you better get here then”. You sent a further text asking the complainant what she was going to do.

[6] After receiving this last text the complainant reported the matter to the police. The police spoke to you. You offered no explanation at the time.

[7] There is a victim impact statement from the complainant. She says that the text message made her upset and angry. She said that she was really nervous and worried about having to go to Court to give evidence and is glad that she did not have to do that. She is also glad that this is all over.

The circumstances of the offender

[8] Turning to your personal circumstances, you are now 19 years old. You were

18 years old at the time of this offending. You told the pre-sentence report writer that you had no idea why you sent the text messages and that it was “really stupid”. You presently live with your father and your brother. You are in receipt of the

_{sickness benefit as a result of a back injury you sustained two years ago.}

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[10] The Crown advises that, in the course of investigating the present offending, the police obtained your text messages for the period from 3 August 2011 to

31 August 2011. During that period you sent and received a very large number of text messages which are reported as being almost entirely to and from young females and are of a sexual nature.

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[12] On the positive side, the pre-sentence report writer describes you as having a number of pro-social influences on your life and as having a relatively helpful lifestyle balance. You do not have any alcohol or drug problems. One of the pro- social influences in your life, is that in the evenings you are involved as a stage manager for a youth theatre. You have been involved with this since 2003. You are supervised by the producer and director for the youth theatre. He is aware of your offending history. He has provided a reference in which he describes you as well respected for your dedication, hard work and commitment. He says you are developing from being “an excellent all-round team player into a responsible and very capable leader.” You also do volunteer work setting up the stadium for basketball games and clearing up after the game. For this you receive free tickets to the Nelson Giants basketball games.

Sentence

[13] The principles and purposes of sentencing usually, but not always, require that an imprisonment sentence be imposed for blackmail.2 In your case, the offending was at the lower end of the blackmail range of offending. The complainant obviously did not take the view that she had to comply with your requests. She took the sensible action of reporting the matter immediately to the police. Whilst your threats were understandably upsetting to her, it has not caused any lasting impact. The most comparable cases are R v Thomas3 and R v Lal.4 In the former, a sentence of community work was imposed. In the latter a sentence of

_{home detention for a short period was imposed. The threats were not of the same}

2 _{R v Thomas CA138/05, 6 July 2005 at [9].}

3 _{R v Thomas CA138/05, 6 July 2005.}

4 R v Lal HC Auckland CRI-2009-004-5813, 20 April 2011.

scale as that in R v Williams5 where the threats lead the complainant to relent and to have sex with the offender and they did not have the associated violence that was present in R v Parish.6

[14] Your previous offending is aggravating. In your favour is the guilty plea which was made at the first opportunity. You accept that your offending was stupid. It is the kind of offending where your relative immaturity was probably a factor.7

The information about your other inappropriate sexual behaviour is of concern. The pre-sentence report writer’s view is that there is a need to address your offending related behaviour. The Crown submits that there is a significant rehabilitative need. I agree. If you do not address your inappropriate sexual behaviour it seems likely that you will be back before the courts and facing a possible imprisonment term. As the Crown submits the goal here is to try to avoid you doing something again that may ruin your life and/or possibly someone else’s. The information from the pre- sentence report writer together with the positive comments about you from the youth theatre director give some hope in that regard.

[15] I therefore agree with both counsel that in your case the purposes of sentencing are met by a community-based sentence. The question then is what that community-based sentence should be. The pre-sentence report writer says that the difficulty with an electronically monitored sentence is that it would interfere with the pro-social activities in which you are engaged and without these activities, which provide you with lifestyle balance, your risk of reoffending may increase. She also says that you do not present with complex needs and for that reason intensive supervision is not necessary. I accept her comments about this.

[16] I am therefore imposing a sentence of 12 months’ supervision with the special condition that you undertake and complete an assessment by the Department psychologist, and attend any treatment recommended to the satisfaction of the psychologist and probation officer. You are also to do 200 hours of community

_work.

5 _{R v Williams [2012] NZHC 506.}

6 _{R v Parish [2012] NZHC 495.}

7 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77]; Pouwhare v R [2010] NZCA

268, [2010] NZCA 268; (2010) 24 CRNZ 868 at [69]; R v Thomas CA138/05, 6 July 2005 at [17]-[18].

_{[17] You may stand down.}

_{Mallon J}

Solicitors:

Crown Solicitor’s Office, Nelson

Bamford Law, Nelson