R v Hulme [2012] NZHC 1766 (19 July 2012)

Last Updated: 15 August 2012

ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF VICTIM.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-009-004727 [2012] NZHC 1766

REGINA

v

STEWART WILLIAM HULME

Hearing: 19 July 2012

Appearances: J J McCall for the Prisoner

D L Elsmore for the Crown

Judgment: 19 July 2012

_{SENTENCE OF HON. JUSTICE FRENCH}

[1] Stewart William Hulme, following a guilty plea, you appear for sentence this morning on one count of blackmail. The maximum penalty for that offence is

14 years imprisonment.

Facts of the offending

[2] You and your victim have never met but only had contact through text messages and phone calls.

R V HULME HC CHCH CRI-2012-009-004727 [19 July 2012]

[3] The contact between you started in 2007, when she was only 12 and you were in your late 50s.

[4] She sent you a text intended for someone else by mistake. You replied, giving a false name and saying that you were 21. She responded saying she was 16.

[5] The texting continued on a regular basis for approximately three years.

[6] During these text exchanges, you asked the victim to become your girlfriend and she agreed. Shortly after the text messages first began, you sent her a photograph of a penis and asked her to send you explicit sexual pictures of her. She thought this was disgusting and stopped contacting you. However, the texting resumed, you promising to buy her things and topping up her phone every couple of days. Eventually, she was persuaded by you to send some photographs. Initially, they were of her fully clothed. But in 2009, you started to pressure her to provide photographs of her naked, wearing a bra and G-strings, or inserting things into her vagina. The victim was too embarrassed and ashamed to tell anyone. She did not know how to stop the contact, and it did continue for a very long time, with you wanting a picture of her every day.

[7] In September 2010, you ended contact saying, falsely, that you had to work in

Australia. However, for some reason which remains unexplained, on 1 September

2011, you reinitiated contact via text message.

[8] On 22 September 2011, you text her asking for her to send new pictures of herself. However, she no longer wanted anything to do with you and ignored your messages.

[9] The following month, on 7 October 2011, you sent her a text saying you had found some old pictures of her. You threatened to post these photographs on Facebook and send them to her mother if she did not send you new sexual photographs of herself. Wisely, she ignored this text and reported the threat to police.

[10] Two days later, on 9 October 2011, you again text her, stating you had set up a Facebook page and put her old photographs under her name on the Facebook page.

[11] The following day, 10 October 2011, you advised her you had been working on the Facebook site and had made a three minute video of her which included all the pictures she had previously sent.

[12] On 11 October 2011, you again demanded via text message that she send some photographs, like the previous ones. You said that if she did that you would withdraw her photographs from the Facebook site. She text back and asked you to leave her alone, that she had moved on and no longer wanted to be in a relationship with you.

[13] On 12 October 2011, you text saying she was very popular on Facebook and that after midnight she would be famous, as you would post all her contact details, along with those of her parents’ on Facebook for others to contact her.

[14] Over the ensuing days, you also used at least three other cell phone numbers to contact the victim, purporting to be from third parties who had seen the pictures on Facebook.

[15] When interviewed by the police, you admitted that you had been threatening the victim so that she would send you new photographs. There is no evidence that the old photographs were in fact still in existence, or that you had ever set up a Facebook site.

[16] According to the instructions you have given your lawyer, you would never have responded to that first text had you known her true age.

[17] You also accept that while what was done in 2011 was criminal, your conduct before that was morally wrong.

Reports

[18] I have read, and I hope you have too, the victim impact report.

[19] It is clear that your offending has had a very profound effect on the victim’s mental health and emotional wellbeing. She talks of self harm, cutting her wrists, feelings of insecurity, difficulty concentrating at school and general lack of self worth.

[20] In addition to the victim impact report, I have also read the references that

Mr McCall has provided and the pre-sentence report.

[21] The pre-sentence report tells me you are now 63 years of age, married for 34 years, with two adult stepchildren. Both your wife and the children remain supportive. As it seems do a number of people who have written the references and who speak highly of you.

[22] This is the very first time that you have ever appeared in a criminal Court. As noted in the probation report, up until now, you appear to have led a relatively ordinary, if not exemplary life, working hard, raising a family and generally contributing as a valuable member of society. You have some difficulty explaining your conduct.

[23] The report writer, however, says it seems evident that a serendipitous text message gave you the opportunity to act out some kind of sexual fantasy.

[24] You are said to be devastated, and I accept that you are, by the situation you now find yourself in and the effect that it must have had on your wife and family. Mr McCall tells me that they are deeply shocked. You are attending counselling and, at the instigation of your lawyer, have agreed to make a one-off cash payment of

$2,000 to the victim for emotional harm. You have expressed remorse in a letter of apology, and also to the report writer, although, in the opinion of the latter, the expressions of remorse appeared more related to the position you find yourself in and less for the victim.

[25] The report concludes by recommending a sentence of home detention, coupled with special conditions to address the offending behaviour. That is seen as an appropriate alternative to imprisonment. Those recommendations are supported by both your lawyer and by the Crown.

[26] Ms Elsmore submitted that she strongly supported a rehabilitative sentence designed to address what, in her view, is a serious underlying problem, a problem that if something is not done is likely to cause future harm to others.

Sentencing analysis

[27] I turn now to explain the sentencing decisions I have to make today.

[28] First and foremost, I must have regard to the principles and purposes of sentencing as set out in the Sentencing Act 2002.

[29] In a case involving blackmail, the purposes of deterrence (putting you off doing anything ever like this again and sending a message to other likeminded people that this is not to happen) and denunciation (expressing society’s complete rejection of this sort of conduct) are particularly important. Blackmail is viewed seriously and that is why imprisonment is usually but not always the Court’s response. Blackmail is often described as a vicious offence because it preys on people’s vulnerabilities.

[30] There is no accepted sentencing tariff for the offence of blackmail, that is simply because the circumstances are so variable. However, in another case,[1] a Judge has helpfully identified a number of factors that are relevant to sentence. Those factors are:

(i) The relationship between the blackmailer and the victim. (ii) The threat underlying the demand.

_{(iii) Whether money was demanded.}

(iv) How persistently the demand is made. (v) Whether the demand is successful.

(vi) The vulnerability of the victim to the demand. (vii) The effect on the victim.

[31] In your case, I identify the aggravating features as being:

(i) The victim’s vulnerability and particularly the gross disparity in your ages.

(ii) Your persistence.

(iii) The serious effect on the victim.

[32] On the other hand, I accept that it was not a threat that you intended to carry out and it was, of course, not associated with any violence.

[33] In my view, having regard to all the circumstances and the other cases, an appropriate starting point, before looking at mitigating factors relating to you personally, would be, as Mr McCall submits, a short term of imprisonment in the vicinity of one to two years. As regards mitigating factors relating to you personally, there are a number of mitigating factors, namely, your previous good record, the fact your guilty plea was made at a very early opportunity, although that needs to be tempered by the fact that it was made in the face of a very strong police case, and also your offer of amends.

[34] On account of those factors, a term of imprisonment would be likely to be in the vicinity of 10 to 12 months imprisonment. That renders you eligible to be considered for home detention. That, as I have said, is the sentence strongly recommended by the Probation Service and both lawyers.

[35] I agree with that assessment, given your lack of previous convictions, your family support and your good work record.

[36] Home detention will still reflect the seriousness of the offending. But, as the report writer notes, home detention coupled with psychological support will be a safe path forward for you, while keeping the safety of the community in mind and your rehabilitative needs addressed.

[37] As regards the period of the home detention, I consider that six months home detention with standard and special post-detention conditions is appropriate. Those conditions are to continue for 12 months at the end of the six months.

Sentence

[38] Stewart William Hulme, you are convicted of blackmail and sentenced to a period of home detention for six months.

[39] The standard and special conditions are as set out in the pre-sentence report, but I will read them:

1. You are to travel to 48A Ti Rakau Drive, Ferrymead, Christchurch, immediately after this sentencing and await the arrival of the probation officer and connection for electronic monitoring.

2. You are to reside at this address for the duration of the sentence of home detention and you are not to leave without the prior approval of the probation officer.

3. You are to undertake assessment for a departmental programme addressing sexual offending and, if you are suitable, to participate in and complete to the satisfaction of the probation officer.

4. You are not to have contact with any persons under the age of

16 years through physical, verbal or electronic means without the permission of the supervising probation officer.

5. You are not to be in possession of a cell phone or computer, or reside at an address with access to a cell phone or computer for the duration of the sentence.

[40] I, however, confirm that this last condition is subject to two exceptions. The first is that your wife, Mrs Hulme, is permitted to retain possession of her cell phone which is to be used solely by her and by no other person. She is also entitled to own and use a laptop computer, again, this is to be used solely by her and by no other

person. There are to be no other cell phones or computers at the home detention address.

[41] There will be standard and special post-detention conditions which are to last for 12 months at the end of the home detention. The special post-detention conditions are:

(i) To undertake assessment for a departmental programme addressing sexual offending and, if suitable, to participate in and complete to the satisfaction of the probation officer.

(ii) The same condition, that you are not to have contact with any persons under the age of 16 years through physical, verbal or electronic means without the permission of the supervising probation officer.

(iii) This condition is the same one as before, regarding being in possession of a cell phone or computer, or residing at an address with access to a cell phone or computer for the 12 months of the post- detention conditions. Again, I confirm that the same exceptions relating to your wife will apply to that cell phone/computer condition.

[42] I also order you to make immediate payment of the sum of $2,000 in reparation for emotional harm to the victim.

[43] Finally, I make an order prohibiting publication of the name of the victim and any identifying particulars. That order is imposed for her protection because, in my view, publication of any identifying particulars or her name is likely to cause her real harm.

Solicitors:

Raymond Donnelly & Co, PO Box 533, Christchurch 8140 – [e-mail]

Papprills, PO Box 376, Christchurch 8140 - [e-mail]

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[1] R v Takao HC Rotorua CRI-2004-087-2227, 29 April 2005