R v Van Helmond [2012] NZHC 3258 (4 December 2012)

Last Updated: 20 December 2012

ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF VICTIM

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-054-2380 [2012] NZHC 3258

THE QUEEN

V

HENRICUS GERADUS VAN HELMOND

Counsel: I Murray for Crown

F D Steedman for Prisoner

Sentencing: 4 December 2012

_{SENTENCING NOTES OF WILLIAMS J}

[1] Mr Van Helmond, you appear in court today for sentence on one count of blackmail as we have discussed at some length already.

[2] I gave a summary of your offending when I gave my sentencing indication in October but that indication was not made public so I am going to briefly summarise your offending again now.

The offending

[3] In 2007, you became an administrator of the websites called CYFSwatch.org and CYFStalk.org. These websites were aimed at naming and shaming CYFS for

_{their alleged incompetencies and to provide a forum for those who have grievances}

R V HENRICUS GERADUS VAN HELMOND HC WN CRI-2012-054-2380 [4 December 2012]

against that agency in order to discuss their cases. CYFStalk.org was interactive, I understand. Members of the public could register with the site and participate in forum discussions, all of which was accessible.

[4] The victim in the present case was a CYFStalk.org user. She was a grandmother who (at least in 2010) was having real difficulties obtaining legal care of her grandchildren. She came to your websites looking for help, as you know. She trusted you and in turn became a friend and confidant of you – at least that is what she thought. She made several forum posts on CYFStalk that were critical of CYFS, she did that under a pseudonym but they reflected her tense conflict with that agency in respect of her grandchildren. So what is clear is that when she came to you she was in a vulnerable state.

[5] At the end of 2010, for reasons unrelated to this case, you took both those websites down.

[6] In the interim between then and this year, relationships between CYFS and the victim took a positive turn. She was no longer critical of that agency. Her relationship with the agency had turned a corner.

[7] In early 2012, you reinstated the two websites. And on 17 January this year, the victim logged back on to the CYFStalk site. She was surprised and, I think it fair to say, distressed, to discover that she could still see all her old forum posts. Distressed because she thought this would undermine the new relationship (positive in nature), that she had been able to build up with CYFS, in the time after her initial posts. She asked you by email to take them down – worried of course that this might threaten her care rights with respect to her grandchildren. Whether that is true or not, does not matter. It was an honestly felt fear in the victim’s mind.

[8] There was some initial confusion at your end about who was sending the emails. That is set to one side – it is not particularly relevant. But the critical facts are, after she continued to email you asking you to take the material down and threatening legal action if you didn’t, you responded in an extraordinarily aggressive way. Now, I have read the emails. I was myself surprised at your aggression.

[9] In particular, you threatened:

(a) to report the victim’s lawyer to the Wellington District Law Society;

and

(b) to name and shame her for her conduct on your websites through posts, which would include personal and potentially prejudicial information about her, unless her lawyer paid $1,000 both to yourself and a co-administrator of the relevant websites.

[10] Now, that was the bribe. You say you really intended to put her off. But the fact is that threat was taken extremely seriously by this woman. You of all people should understand that people have different vulnerabilities. You were running a CYFS-based website for goodness sake. You were on a daily basis dealing with people in vulnerable situations. You should have understood that – and you didn’t. Instead you got up on your high horse and started firing threats as if by bullying the victim into submission she would go away.

[11] I am pleased to hear that any reference to her is now removed from all sites. Nonetheless this extraordinary outburst, including a bribe, has had a significant effect on this woman’s life.

Discussion

[12] Looking at your offending, the key aggravating factors are really a breach of her trust by your threats, and the harm you have caused to her, palpable in the court room today. Bearing in mind as I said earlier Mr Van Helmond, you must deal with people with the vulnerabilities they have. Some might be unaffected by these things, others deeply. This person was deeply affected. She gave you information in confidence, on a very sensitive issue for her, at a very difficult time in her life, and you disrespected that trust. You heard that in the statement she read. She said:

My health has now become so bad that put simply I can no longer make plans for months ahead, but just live day to day. I believe this is a direct result of the added stress caused by Henk’s actions.

[13] On the positive side, I accept your offending sits at the lower end of the spectrum. The amount you demanded was relatively low, I agree as do both counsel, that the later reference to the payment of $10,000 was a typo – you actually meant

$1,000. So I accept that the bribe was at the lower end of the scale. I also accept that there was an element of naivety or impetuousness around the conflict, the built up on these emails. That is one of the problems with emailing people – you don’t see their body language so you don’t realise the pain being inflicted. That’s not your fault – that’s just the email.

[14] This was not, in my view, a planned Hollywood-style blackmail. It was a spur of the moment aggressive threat – stupid but not evil.

[15] I am also to consider factors relating to you personally. Your health is a matter of some significance to me. I know you suffer from multiple sclerosis. I know you take medication for diabetes and I recall during the sentencing indication that, through your counsel, you indicated you actually been over-medicating for your hypoglaecemia, and although I do not know you, I have now met you twice, I am prepared to accept that your aggression in that email exchange could well be the result of your hypoglaecemia. At least that could well have contributed to its intensity.

[16] You do have previous convictions, but they are old and they are irrelevant in the terms of the issues before me, so I set them to one side.

[17] Now Mr Van Helmond the law treats blackmail very seriously. It is not just an empty statement, it’s a fact. Most blackmail cases end up in jail terms because our legal system and our culture sees the idea of extorting cash from people through threats as abhorrent. In your case though, because of the low level of this and because of your own personal attributes, I do not think jail is appropriate.

[18] In my earlier sentencing indication I suggested that community work coupled with supervision would be appropriate. And I understand this can now work practically, either in Woodville or in Dannevirke.

[19] So I maintain the view that community work is appropriate here. It will uphold the important aims of punishment, denunciation and deterrence – particularly of you – you’ve got to learn this lesson – and rehabilitation. An alternative sentence of community detention is technically open, but I think that is disproportionate on the facts and given your personal attributes.

[20] In reality Mr Van Helmond the real punishment here is in doing to you what you threatened to do her – to name and shame you for what you have done. There is a certain poetic justice in this, and I hope your lesson is well learnt.

[21] The last point I want to make is in relation to computer use. The victim’s fear has been articulated, and you, I hope, have assuaged that fear in the comments you made about excising her posts from the websites. I will say Mr Van Helmond that any future offending of this kind will inevitably be taken very seriously by the courts. You need to take that message away.

Conclusion

[22] You are sentenced on the count of blackmail to 200 hours’ community work.

_{[23] Stand down please.}

Williams J