R v Rewi [2012] NZHC 1410 (20 June 2012)

Last Updated: 5 July 2012

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2010-054-004921 [2012] NZHC 1410

THE QUEEN

v

_{HOANI STEPHEN REWI}

Hearing: 20 June 2012

Counsel: E C Killeen for Crown

T C Thackery for Prisoner

Sentence: 20 June 2012

_{NOTES ON SENTENCING OF COLLINS J}

Introduction

[1] Mr Rewi, you appear for sentence on one charge of blackmail under the

Crimes Act 1961,[1] for which you pleaded guilty.

Sentencing indication

[2] On 6 March 2012, Gendall J gave you a sentencing indication pursuant to the

Criminal Procedure Act 2011.

[3] Gendall J considered that a starting point of three and a half years’

_{imprisonment for the blackmail charge was appropriate. He then uplifted that}

R V REWI HC PMN CRI-2010-054-004921 [20 June 2012]

starting point by six months to take into account that the offending occurred while you were on bail, and then uplifted it a further six months to take into account your previous convictions. He then discounted that by 12 per cent to take account of your guilty plea which he considered came at a “very late stage”. Gendall J indicated that if you pleaded guilty to the blackmail charge, you would face a sentence of three years and eleven months’ imprisonment.

[4] In sentencing you today, the sentencing indication of Gendall J is not binding on me. I will now describe the circumstances of your offending, your personal circumstances and set out my reasons for reaching a slightly different conclusion to that indicated by Gendall J.

Circumstances of your offending

[5] On 4 April 2011, a commercial business started operating from a site in Palmerston North. On 6 April 2011, you entered the business. You were wearing a Black Power Forever patch.

[6] You engaged in conversation with the owner of the business, the complainant. You advised the complainant that you were connected with another business in the area and that you believed the complainant’s business would interfere with that. You said that you “ran” Highbury, and that if the complainant wanted to carry on business, he had to pay you $1,500. You said that if he failed to pay you, then you would come around the business with other persons and smash the house over. You left after about ten minutes, but made the complainant give you his cell phone number.

[7] Later that day, you sent a text to an associate saying that you had just “stood

over” the shop down the road.

[8] The following day, you contacted the complainant on his cell phone. You said that you knew where he lived and then described his residential address. You issued a further demand to the complainant, accompanied by another threat. You

said “... everyone knows who I am and how I operate (so) you either pay up or you and your family get fucked up”.

[9] As a result of your threats, the complainant closed his business, changed his phone number, went into hiding and began selling his personal items so he could leave Palmerston North with his family.

[10] According to the Police summary of facts you continued to ring the complainant’s old cell phone number and go to his residential address and work address. I record that you dispute that aspect of the police summary of facts.

[11] As a result of the offending, the complainant and his family left the area.

[12] In his victim impact statement, the complainant said that the incident “completely turned both mine and my families’ life around”. He said that the threats left him and his family fearful for their safety and that of their business, and that the event financially “destroyed” them. The complainant and his wife question whether they will ever be able to walk the streets of Palmerston North safely. He says that this is difficult for his parents who have lived in Palmerston North all their lives. He describes you as “lacking empathy for others”, and have “a low degree of anxiety about consequences”. He hopes that you are held accountable for your actions because of the person you are, and because of what you have done to his family.

Circumstances of the offender

[13] You are 27 years old, and are one of 14 siblings. You have two sons under the age of 5. You have regular contact with your youngest son who resides with his mother in the Palmerston North area.

[14] You told the pre-sentence report writer that you were “born into the (Black Power) gang” because your father was the President throughout your childhood. Your older brothers are members of the Black Power gang. In explanation of your offending, you said that you had been told by the Black Power gang to stand over the

complainant because the complainant had set up a similar business to that of a gang associate down the road. You said that you had left the gang about ten months ago. But the pre-sentence report writer questioned this. He said that a pre-sentence report dated May 2009 says that your offending in 2007 was part of the process of quitting the gang. Then in November 2010, you had advised Community Probation that you had left the gang five months prior to the current offending.

[15] You have 121 previous convictions. Those related to dishonesty, drugs, non- compliance, fraud, weapon possession, burglary and violence. You also accumulated a shoplifting charge while subject to your current release conditions and accumulated charges relating to non-compliance and drug possession while on parole in September 2011 to August 2011.

[16] You are assessed as at a high risk of re-offending because of your conviction history and offending while subject to a community-based sentence. Your risk of harm to others is assessed to be medium to high because of the threats of violence and the fact that your offending appears to be escalating.

[17] According to the report, you were aware that your behaviour was wrong and you are remorseful. I add that you have read your letter to me today which confirms that. You say you want to engage in the Restorative Justice process but this process is not available due to the seriousness of the offending and the fear you inflicted upon the complainant.

[18] I now turn to your sentence.

Starting point

[19] The Court of Appeal has previously characterised blackmail as “one of the most vicious crimes in the calendar of criminal offences” and has emphasised the need for deterrent sentences to be imposed.[2] Sentences for blackmail are usually for

_{a term of imprisonment. As Keane J said in R v Takao:}[3]

Blackmail is an offence, which invariably attracts a sentence of imprisonment that denounces and deters. Only exceptionally is emphasis able to be given also to a sentence which rehabilitates and reintegrates. The offence is regarded as so insidious and so abhorrent that nothing less than imprisonment will answer it: R v Wilson (CA31/81, 5 June 1981), R v Paterson (CA151/94, 14 July 1994).

[20] There is no tariff case for blackmail sentencing. The factors to be taken into account when determining the relevant sentence for blackmail offending were set out in R v Takao:[4]

(a) The relationship, if any, between blackmailer and victim; (b) The nature of the threat underlying the demand;

(c) The sum demanded;

(d) How persistently the demand is made; (e) Whether the demand is successful;

(f) The vulnerability of the victim to the demand; and

(g) The effect on the victim of the demand.

[21] These factors have been applied in a number of cases.[5] Applying these factors to your offending, there was no previous relationship between you and the complainant. You threatened to damage the complainant’s house, harm the complainant and his young family. You demanded $1500 in the first instance, which is not an insignificant sum. You demanded the money face-to-face on the first day, and then made follow up telephone calls and additional threats the following day. You continued to ring the complainant’s cell phone and visit his address. The complainant was forced to close his business and leave town. You caused the

_{complainant and his family immense emotional suffering and financial loss.}

[22] I consider that the following cases are comparable to yours:

[23] R v Wilkie:[6] the appellant visited the victim and made a complaint about the building work that the victim had been carrying out, and claimed that the victim owed him money for defective work. The Crown alleged that the sum involved was

$60,000, whereas there was evidence of a discussion about $25,000. The appellant stated that if the victim did not pay the money he would kill him. The appellant repeated this threat a number of times throughout the meeting, and also threatened the victim’s family. The appellant also repeated these threats via telephone on the following day. The sentencing Judge considered that a starting point of three years’ imprisonment was appropriate.

[24] R v Thompson:[7] the defendant went to the complainant’s house and accused him of assaulting a relation. He demanded that the complainant pay him $700, otherwise he would break his arms and legs. The complainant gave him the money. But the defendant continued to demand more money with the demands increasing. The sentencing Judge imposed a starting point of two years and nine months’ imprisonment taking into account the fact that the offending took place over a period of months, the demands increasing and the nature of allegations made against the complainant, the defendant’s persistence and the effect on the complainant financially and emotionally.

[25] R v Zheng: the defendant was sentenced on five counts of blackmail. The defendant and three others carried out a plan to blackmail the proprietors of Chinese massage parlours. They visited five massage parlours in the course of several days, demanding a protection fee of $100 per working girl per week and threatened the safety of their managers of staff if they refused to pay. The sentencing Judge adopted a starting point of two years and six months imprisonment on one count of blackmail and uplifted that for one year to reflect that there were five incidents.

[26] Some of those cases are more similar to your case than others. But I consider

_{that a starting point of three years’ imprisonment is appropriate in your case,}

considering that the offending took place while you were on bail, the nature of your threats and the demand, and the effect on your victim and his family.

[27] Turning to your personal circumstances, you have 121 previous convictions. Relevantly for the purposes of your sentencing today, you have two previous convictions for demanding with menaces which occurred in 2007, for which you were sentenced to two years and two months’ imprisonment. You have also continued to offend since that time. So I agree with Gendall J that an uplift of six months is appropriate to take account of your previous convictions. I also agree with Gendall J that a further uplift is required to denounce the fact that this offending occurred whilst you were on bail. That further uplift will be six months.

[28] You are entitled to a discount for your guilty plea. The Supreme Court in Hessell v R held that the discount that is given for a guilty plea must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case.[8] As was recognised by Gendall J, your guilty plea was entered three months before your trial was to begin. In addition, the prosecution case seemed to be strong. I agree with

Gendall J that in those circumstances a 12.5 per cent discount is appropriate. That is a six month reduction. This leaves an end sentence of three years six months’ imprisonment.

Sentence

[29] Mr Rewi, you are now sentenced to a period of three years six months’

imprisonment on the charge of blackmail to which you have pleaded guilty.

_{[30] You may stand down.}

Solicitors:

Crown Solicitor, Palmerston

Opie & Dron, Palmerston North for Prisoner

D B Collins J

---

[1] _{Crimes Act 1961, ss 237(1) and 238.}
[2] _{R v Patterson CA228/96, 22 August 1996.}
[3] R v Takao HC Rotorua CRI-2004-087-2227, 29 April 2005 at [20].
[4] _{R v Takao HC Rotorua CRI-2004-087-2277, 29 April 2005.}
[5] See for example R v Zheng [2012] NZHC 1102, R v Williams [2012] NZHC 506, R v Shepherd HC Hamilton CRI-2012-019-7285, 30 May 2011.

[6] R v Wilkie HC Wellington CRI-2004-078-506, 17 December 2004 (affirmed by CA6/05, 27 April _2005).

[7] R v Thompson [2012] NZHC 798.

[8] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.