Sale v Police [2014] NZHC 1933 (15 August 2014)

Last Updated: 18 September 2014

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-000027

CRI-2014-463-000028 [2014] NZHC 1933

BETWEEN	AMANDA WAITANGI SALE PISILA MARTIN Appellants
AND	NEW ZEALAND POLICE Respondent

Hearing:	14 August 2014
Appearances:	W Lawson for Ms Sale A Schulze for Ms Martin A Hill for the Respondent
Judgment:	15 August 2014

_{JUDGMENT OF ELLIS J}

This judgment was delivered by me on Friday 15 August 2014 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:...............................

Counsel/Solicitors:

W Lawson, Barrister, Rotorua

A Schulze, Barrister, Rotorua

A Hill, Gordon Pilditch, Rotorua

SALE & MARTIN v NEW ZEALAND POLICE [2014] NZHC 1933 [15 August 2014]

[1] Pisila Martin and Amanda Sale are sisters. They both appeal against sentences of two years imprisonment imposed upon them by Judge Gittos on 5 June

2014 after each had pleaded guilty to two charges of blackmail.¹

[2] The name of the victim (V) and his identifying particulars are suppressed.

Facts

[3] On 12 February 2014 Ms Martin and Ms Sale entered V’s convenience store. Ms Sale flirted with V. Ms Martin left the store and waited outside. Ms Sale and V exchanged phone numbers and arranged to meet two days later. When they did so, they engaged in sexual activity.

[4] As V was driving Ms Sale home, she told him she was 17 and that when she was younger she had been raped by her stepfather. She began to abuse V verbally and repeatedly told him that she would “take him down” by “creating a scene” and telling “everyone what [he does] to girls”, before demanding that he give her $2,000. V then withdrew $700 from a money machine and gave it to her. Ms Sale then instructed him to withdraw another $1,000, putting him into overdraft.

[5] On 20 February V received a phone call from a woman claiming to be Ms Sale’s mother who told him that he “did wrong”. In fact, the caller was Ms Sale’s sister, Ms Martin. She also threatened to “take him down” and told him that she knew what school his children attended, and threatened to tell a staff member at that school. Ms Martin also told V that the Mongrel Mob would come and “sort him out” and “get him”.

[6] The next day Ms Martin went again to V’s store. V handed over $1,500 and a bottle of alcohol. Ms Martin told him that she would not bother him again. But two days later, on 23 February, he received another phone call from her. Ms Martin told him she needed money to fix her car and that she could come down and “sort him

_{out”. V heard a male voice in the background repeating the threat.}

¹ Crimes Act 1961, s 237. The maximum penalty for blackmail is 14 years’ imprisonment: s 238.

[7] Later that day Ms Sale also visited the store. She said that unless V gave her his phone she would tell his wife about their sexual encounter. V offered to give her groceries instead, but Ms Sale then demanded money. In the end he gave her two boxes of alcohol and $100. Several hours later Ms Sale returned and again demanded money and cigarettes, threatening to create a scene or to tell V’s wife. V gave her a further $200 and a packet of tobacco filters and papers.

[8] The following day Ms Martin rang V and demanded $2,500. This time she said that she would pay back the money, but it would be good if she did not have to do that. V again heard a male voice in the background threatening to “sort him out”. Ms Martin then said that he should give her his car if he had no money. V agreed to give her $500 that day and another $500 later. After paying the first $500, V contacted the police.

[9] In total, V was blackmailed by Ms Martin and Ms Sale over a period of 10 days, during which time he paid them $4,220 ($2,060 to Ms Martin and $2,160 to Ms Sale).

District Court Decision

[10] The learned District Court Judge sentenced both sisters together. He said that in his view they had acted in tandem from the outset, or at least from a very early stage. On that basis he found little to distinguish between them in terms of culpability. He said:

[5] So there have been two discrete acts of blackmail by each of you which have resulted in payment of money and goods to you to the value of about $2000 each. The maximum penalty for blackmail is 14 years’ imprisonment and it is trite to say that it is an offence which is very seriously regarded by the law and is a vile and invidious offence for which a sentence of imprisonment must generally be the norm. It was put this way in one of the several cases that have been cited to me by counsel today. It was a decision of Justice Keane in R v Takao HC Rotorua CRI-2004-087-2227, 29

April 2005:

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 abhorrent that nothing less than imprisonment will answer it.

[6] While that is the start point for any sentence on a charge of blackmail, it is nevertheless since home detention was introduced as an available sentence, a possible outcome in cases where the sentence, the end sentence would be one of less than two years and I will return to that topic but the presumption for blackmail of any kind is a sentence of imprisonment.

[7] Helpful also were Justice Keane’s comments in that same case about factors which are relevant to the seriousness of the blackmail. Whether there has been a relationship between the blackmailer and the victim, the threat underlying the demand, how much was demanded, how persistently the demand was made, whether the demand was successful, vulnerability of the victim, the effect on the victim of the demand. It is only when those factors are in their least aggravating and combination that the circumstances and needs of the offender can be given much weight in a sentencing exercise. That is as the law was summarised and in my view correctly summarised by Justice Keane with respect in Takao.

[8] Looking at those factors, you Ms Sale engineered a relationship with this man and did so I am satisfied for the express purpose of blackmailing him. I do not accept your explanation made to the probation officer that it was something that he did or asked of you in the course of the sexual encounter which went further than you were willing to offer, that made you spontaneously and suddenly decide to blackmail him in an effort of retribution of some kind. Much less do I accept the proposition that you Ms Martin were activated by some sort of sense of justification because you thought your sister had been abused. Those suggestions were made to the probation officer by both of you for the first time. They have not been suggestions that have been made available to the Crown to test with the complainant and strike me as having a ring of rather distasteful expediency about them. In any event, it is in no way a justification for your conduct if this man did ask for more than you were prepared to give at the time, but as I say I do not regard that as being reliable information and I dismiss it from the consideration of the Court.

[9] The threat underlying the demand coming directly from you Ms Sale was to bring this man down, to destroy his reputation in the town, to undermine his marriage and generally to put him into those sorts of difficulties. You Ms Martin took the whole thing a stage further by telling him that you were associating with the Mongrel Mob having some male voice on the other end of the phone adding weight to that and threatening to come around and sort him out.

[10] Counsel for you Ms Sale suggests that you can be disassociated from the threats and violence that your sister has put across. I do not agree that that is necessarily the case. This sentencing exercise is put to me by both defence counsel on the basis that I should draw a neat line between the two of you and say well this one did this and this one did that and they are not really responsible or aware what the other was doing. The whole thing seems to me to have a very clear overtone of having been an orchestrated and planned venture and you are both in, in my view, responsible for the whole of the threat that was made to this man and I make no doubt well aware of it. The sequence of threats and visits to the shop clearly make that evident to me in as much as you Ms Martin make threats of violence and connection to the Mongrel Mob and then on the same day your sister goes to the shop and gets some more money. The sequence of events and the

closeness evident in your relationship is evident from the fact that you went there in the first place together and have continued this, in tandem as it were and indeed even the comments to the probation officer about the close relationship between you make it clear to me that this was a joint effort and should not be looked at with a fine division as to what each of your respective parts in it was.

[11] The demands were plainly persistent, they were plainly successful. The victim was vulnerable to these demands and the effect on him is shown forth in the victim impact statement which he has prepared for the Court which shows that he was activated by fear and panic at the thought that he was going to be embarrassed and even more so, at the thought that he was likely to be threatened as to his personal safety if he did not pay up. Indeed, the manner in which he responded to your demands very clearly shows the anxiety and mindset that your behaviour put him into. So it is not a particularly straightforward, simple case of blackmail and it is certainly not a case which in my view is at the lower end of the scale. It has all the hallmarks of a planned enterprise and it was persistently pursued.

[11] His Honour adopted a starting point of two and a half years’ imprisonment in both cases. He made no uplift for either woman’s previous convictions and deducted six months for their guilty pleas. His Honour deemed the case inappropriate for home detention, emphasising the principles of deterrence and denunciation.

[12] At the end of his sentencing notes, the Judge ordered Ms Martin and Ms Sale to pay reparation of $2,000 each, by instalments when they were able to do so.

[13] Although Judge Gittos denied both Ms Martin and Ms Sale bail pending their signalled appeals, they were each subsequently released on bail by Lang J and Cooper J on appeal to the High Court. In that respect it is relevant to note that each of the sisters has the sole care and custody of three young children (ie six children in total).

Approach to appeal

[14] Section 250 of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[15] In any other case, the Court must dismiss the appeal.² The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

These appeals

[16] Although there was a divergence between counsel in terms of some of the grounds relied upon I do not propose to traverse the differences in this judgment for the reasons that follow.

[17] First, it became evident that counsel were essentially agreed that the learned judge was right in arriving at the same end sentence for each of the sisters. They accepted that, notwithstanding what might be said about their different roles in the offending (a point particularly emphasised by Mr Lawson), and their differences in age and criminal history, those differences balanced themselves out and there was ultimately no material difference in terms of overall culpability.

[18] Secondly, and notwithstanding Mr Lawson’s submission that the starting point adopted by Judge Gittos was too high I consider that two and a half years was well within range. The cases relied on by Ms Lawson in support of his submission were in my view distinguishable and had fewer of the Takao aggravating features. In light of the ultimate conclusion I have reached in this case I do not think I need to say more than that.

[19] Thirdly, I have formed the view that there were two material errors in the learned judge’s approach. I consider that the effect of those two errors is the same in relation to both sentences and thus both appeals can effectively be dealt with together. The errors are:

(a) the apparent failure to take into account the offers and orders of reparation;

(b) the adoption of the view that there is a presumption in favour of imprisonment in blackmail cases.

² Criminal Procedure Act 2011, s 250(3).

[20] I address each in turn.

Failure to take into account the offers of reparation

[21] The structure and content of the Judge’s sentencing notes make it clear that reparation was addressed by him following a reminder by counsel, after he had arrived at the end sentences. It is therefore apparent on the face of the notes that he could not have taken the offers of reparation into account as is required by s 10 of the Sentencing Act 2002.

[22] In the case of each of the sisters, the offer made (which was confirmed by them before me yesterday) is a significant one. As I understand it both are dependent on State assistance and each has the sole care of three children. If the offers are made good, it would compensate V for almost all of his financial loss.

[23] In my view, therefore, provided the reparation offered is realistic and payments can be structured in a non-crushing way (which I think they can) it was a mitigating factor that should have been reflected in the sentences.

The presumption in favour of imprisonment

[24] As will be evident from the passages from the sentencing notes I have quoted above, the learned Judge did, in reliance on the Takao decision in this Court, proceed on the basis that there was a presumption in favour of imprisonment. It is therefore difficult not to conclude that that presumption ultimately tipped the balance against a sentence of home detention, particularly given that the Judge expressly noted that there “are concerning and strong arguments in favour of a more rehabilitative approach”.

[25] The difficulty with this approach is that the Court of Appeal has held (in a case that was not referred to me by counsel and does not appear to be mentioned in the subsequent sentencing decisions to which I was referred) that, in light of s 16 of

the Sentencing Act³, the presumption in favour of imprisonment for blackmail articulated in R v Takao does not exist.⁴ Rather, the Court said that in cases involving blackmail “it is incumbent on the sentencing judge to consider whether a community-based sentence was appropriate ... or whether the sentence should be imprisonment.”⁵ The sentencing Judge must therefore consider whether a community-based sentence would achieve the relevant purposes of sentencing. It is

not required to consider which type of sentence will satisfy the purpose the best, simply whether the purpose will be achieved. Any choice between two genuinely available sentencing options must instead be guided by the requirement to impose the least restrictive outcome.

What should the sentences be?

[26] As I have said, I consider that the two and half year starting point adopted by the Judge was well within the available range, given the various aggravating factors

_{involved in both cases.}

³ Section 16 provides:

(1) When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.

(2) The court must not impose a sentence of imprisonment unless it is satisfied that, -

(a) a sentence is being imposed for all or any of the purposes in section 7(1)(a)to(c), (e), (f), or (g); and

(b) those purposes cannot be achieved by a sentence other than imprisonment; and

(c) no other sentence would be consistent with the application of the principles in section 8 to the particular case.

(3) This section is subject to any provision in this or any other enactment that - (a) provides a presumption in favour of or against imposing a sentence

^{of imprisonment in relation to a particular offence; or}

(b) requires a court to impose a sentence of imprisonment in relation to a particular offence.

⁴ R v Thomas CA138/05, 6 July 2005. This decision was issued a few months after Takao but related to another appeal from a High Court decision in which the Judge had applied the same presumption.

⁵ At [9].

[27] In my view however, there should be a six month reduction from that starting point to reflect the offers and orders of reparation. I have noted that the amount of reparation ordered (which is confirmed, but on varied terms) below, is significant for both appellants and that it would go some way to repairing at least the financial harm that V has suffered.

[28] There is then really no issue that the appellants are entitled to a full 25 per cent discount, to reflect their early guilty pleas. The discount applied by Judge Gittos was slightly less than that (in percentage terms) but in my view a six month discount is appropriate. That would give end sentences of 18 months imprisonment.

[29] The issue then becomes whether those sentences should be commuted to sentences of home detention. I have already held above that there was a material error underlying the learned Judge’s decision to decline it. But that does not, of course, mean that home detention is automatically the appropriate sentence in this case. In exercising the Court’s discretion in that regard, the ss 7 and 8 purposes and principles of sentencing that are relevant to the particular case, must be considered. The following points can be made in that respect.

[30] First, I wholly accept the particular need to denounce and deter blackmailers. As Judge Gittos said it is a particularly insidious and nasty crime. But as has been noted on numerous prior occasions, home detention is very far from a walk in the park and is recognised as a sentence that can adequately fulfil the clear need for denunciation and deterrence in this case.

[31] Secondly, it is relevant that Ms Martin does appear to take responsibility for her offending and has been able to acknowledge the harm she has done. The rehabilitative steps she has herself taken in relation to other problematic aspects of her life are also noted. I am advised that Ms Sale has also been to counselling and has been attending a budgeting course which, in terms of addressing the drivers for her offending, seems to me to be significant.

[32] Thirdly, there is the offer, and order, of reparation.

[33] Fourthly, I do not consider there is any identified need to protect the community from the appellants. I note that a sentence of home detention was in fact recommended for Ms Martin in her pre-sentence report. And while a different report writer recommended a term of imprisonment for Ms Sale, it is worthy of note that a sentence of home detention is not opposed by the Crown.

[34] Lastly, there is the question of the appellants’ personal circumstances. In Ms Martin’s case some further material was filed that only reinforces the conclusion that a non-custodial sentence is to be preferred, if that is open. And as I think Judge Gittos himself recognised there is the very significant adverse effect that a sentence of imprisonment would undoubtedly have on the appellants’ six children, and the appellants’ mother who (as I understand it) would be required to care for them.

[35] In my view all the above favour non-custodial sentences in both the present cases. In each, I regard sentences of nine months home detention, together with the orders for reparation as the least restrictive sentencing outcome.

Result

[36] Each of the sentences of two years’ imprisonment imposed by the District Court is quashed accordingly. Sentences of nine months home detention are substituted. All counsel are agreed that the standard conditions, together with the special conditions specified in the respective pre-sentence reports are to apply.

[37] The reparation orders made by Judge Gittos stand. But given that the appellants will no longer be spending time in custody, and what I perceive to be the importance of a degree of realism, certainty and structure, the orders are modified to the extent that the payments are to be made by each of the appellants in the amount of $25 per week.

[38] This judgment is not to take effect until Monday 18 August at 9 am, when both Ms Sale and Ms Martin are to be present at their respective addresses and are to remain there until members of the Probation Service have been able to take the

necessary steps to implement their sentences. They are to remain on bail on existing

_{terms until then.}

Rebecca Ellis J