KERR v NEW ZEALAND POLICE [2017] NZHC 1830

KERR v NEW ZEALAND POLICE [2017] NZHC 1830 [3 August 2017]IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYCRI-2017-406-8[2017] NZHC 1830BETWEEN JOANNE LEE KERRAppellantAND NEW ZEALAND POLICERespondentHearing: 1 August 2017Counsel: R M Gould for AppellantA B Richards for RespondentJudgment: 3 August 2017JUDGMENT OF THOMAS JIntroduction[1] Ms Kerr pleaded guilty to charges of blackmail,1 wilful damage2 and intimidation.3 She was sentenced on 8 May 2017 to 12 months' imprisonment byJudge Russell in the Blenheim District Court.4[2] Ms Kerr applies for leave to appeal against that sentence on the basis the Judge erred in failing to consider sentencing options other than home detention and imposing imprisonment in the absence of a suitable address. A sentence of intensive supervision combined with community work is said to be appropriate. A secondary ground of appeal is that the Judge erred in declining to adjourn sentencing.1 Crimes Act 1961, s 237(1) and 238, maximum penalty 14 years' imprisonment.2 Summary Offences Act 1981, s 11(1)(a), maximum penalty three months' imprisonment/$2,000fine.3 Section 21(1)(a), maximum penalty three months' imprisonment/$2,000 fine.4 Police v Kerr [2017] NZDC 9437.BackgroundWilful damage and intimidation[3] At about 9.00 pm on 17 November 2016, police were called to the address of the male victim where Ms Kerr was boarding. The relationship between the two had broken down and the police were called to mediate the situation. When matters were concluded Ms Kerr refused a ride from the police and was left on the street. At about 9.25 pm she picked up rocks and began throwing them at the victim's house. At the same time she was yelling profanities at him and threatened to come back with friends and burn his house down. One of the stones went through a lounge window facing the street. In explanation, Ms Kerr said she never intended to break the window and was aiming for the roof.Blackmail[4] Between August 2016 and mid December 2016, the victim of the blackmailcharge was a client of Ms Kerr's.[5] On 10 December 2016, Ms Kerr sent the victim a text message asking for money for a prescription. The victim declined, explaining he had no money. Over the following days Ms Kerr requested more money and he gave her $220. During the following week, Ms Kerr continued to text the victim for more money.[6] On 21 December 2016, the victim offered Ms Kerr $120 not to contact him again. Ms Kerr agreed and the money was transferred. After receiving the $120, Ms Kerr sent a text message to the victim stating that, if he wanted to get rid of her for good, he would have to deposit a further $100 into her bank account. When he declined, Ms Kerr increased the demand to $200 and threatened to go to the police and make a rape allegation against him. Ms Kerr said she would spread all around town and on Facebook he is a convicted sex offender and preys on young girls. The victim tried to negotiate, agreeing to pay $120 a week for a year but could not start the payments for a week. Ms Kerr made further demands for money. He paid her $50 to stop her carrying out her threats.[7] On 28 December 2016, Ms Kerr made a demand for $220 to be paid to her that day or she would go through with her previous threats. She sent repeateddemands and told him he "won't last long in jail, I've got family in there for murder".[8] In fear of these threats, the victim contacted the police. The victim provided a victim impact statement noting the offending cost him financially5 and took a toll on him emotionally. The victim has no convictions for sexual offending. In explanation, Ms Kerr said it was a joke and she was not going to follow through with the threats.Appellant's circumstances[9] Ms Kerr is 34 years old and currently unemployed. Her previous convictions include dishonesty offences of burglary and obtaining credit by fraud. She has a number of other fraud-related convictions going back to 2011.[10] Ms Kerr breached conditions of intensive supervision on two occasions in 2015. In June 2016 Ms Kerr was convicted of breaching special release conditions and was sentenced to intensive supervision for one year. The present offending was committed while Ms Kerr was serving that sentence.[11] Two pre-sentence reports before the sentencing Judge recommended imprisonment. The first report-writer assessed Ms Kerr as at a high risk of harm and re-offending, evidenced by her lack of insight into the effect of her actions. Ms Kerr did however express to the report-writer she was "very remorseful".[12] The second report follows on from an adjournment to investigate whether a suitable property for a home detention sentence was available. Although the proposed address was considered technically suitable, Ms Kerr was asked to find an alternative address. Concerns were expressed about the sponsor of the address who was not considered a pro-social influence. The other occupant was serving a5 The victim impact statement stated it cost the victim $170 although the summary of facts involved a total of $270, plus the $120 for Ms Kerr not to contact him again.community detention sentence at the house. It was considered Ms Kerr's risk ofreoffending would increase if she resided at the proposed address.[13] Ms Kerr has drug use issues and treatment by a specialist addictions clinician is recommended. In the clinician's assessment of Ms Kerr, she presents as motivated to change but has consistently been unable to maintain any change or follow through with plans and interventions over many years.District Court decision[14] Judge Russell declined Ms Kerr's request to adjourn sentencing again for six weeks until the other occupant's community detention sentence at the proposedhome detention address had been completed.[15] In sentencing Ms Kerr, Judge Russell adopted a starting point of 15 months'imprisonment having regard to the seriousness of the charge, the several demands and threats made by Ms Kerr and other cases involving blackmail.6 The effect of Ms Kerr's blackmail on the victim was acknowledged.7 The Judge uplifted the starting point by two months to account for the intentional damage and intimidationcharges. A further uplift of three months was imposed for Ms Kerr's previousconvictions and for offending while serving an intensive supervision sentence. Ms Kerr was awarded a discount of two months for her remorse and full credit for her guilty plea. An adjustment of one and a half months for totality resulted in a final sentence of 12 months' imprisonment.[16] The Judge noted he must sentence Ms Kerr on the basis of the least restrictive outcome. He said:8I have decided, however, that the sentencing purposes and principles of denouncing your conduct and of deterrence both for you and others of acting in this way does, Miss Kerr, require for you a custodial sentence.6 R v Carter HC Palmerston North CRI-2009-054-2693, 21 October 2009; R v YardleyHC New Plymouth CRI-2008-043-3521, 5 March 2009; R v Strange HC Christchurch CRI-2009-069-671, 17 September 2009 and R v ARW [2013] NZHC 1476.7 Police v Kerr, above n 4, at [43].8 At [42].[17] The Judge determined the occupants at the proposed home detention addressmeant such a sentence was inappropriate. Ms Kerr's personal drug problems and herprevious conviction history meant supportive occupants were particularly important. While Ms Kerr's counsel had inspected the property, the Probation Service'sassessment could not be overruled. The Judge did, however, grant leave to apply to substitute Ms Kerr's sentence for one of home detention should a suitable addresswith suitable occupants, which could satisfy the Probation Service's criteria, befound.Approach on appeal[18] The appeal against sentence was filed three days out of time.9 The Crown does not oppose an extension of time and leave is granted. I am to allow Ms Kerr'sappeal if I am satisfied that for any reason there is an error in the sentence imposed and a different sentence should be imposed.10Grounds of appeal[19] Ms Gould submits Judge Russell erred in considering that, given the lack of any suitable address for home detention, the hierarchy of sentencing required him to impose a term of imprisonment.[20] The Court of Appeal decision of R v Rawiri is relied on.11 This was a Solicitor-General appeal against the decision to impose intensive supervision and community work for drug offences involving methamphetamine. In the circumstances of that case, the Court of Appeal held the sentencing Judge had not erred in failing to revert by default to a sentence of imprisonment where home detention was unavailable. Counsel relies on the Court of Appeal's reference toss 10A and 20 of the Sentencing Act 2002, as inserted by the Sentencing Amendment Act 2007:12Parliament's intention was plainly to increase the range of sentencingalternatives available to a Judge other than home detention or imprisonment.9 Criminal Procedure Act 2011, s 248(2).10 Section 250.11 R v Rawiri [2011] NZCA 244.12 At [17].Significantly, the legislature placed community-based sentences well up the hierarchy, immediately below home detention.[21] Ms Gould submits the offence was a low level blackmail offence involving asmall amount of money and imprisonment was an "unusual response" to this form ofoffending. She says sentencing principles of rehabilitation and reintegration were overlooked and the Judge had a statutory obligation to consider whether the purposes of sentencing could be met by an alternative sentence. In her submission, Ms Kerr could not be said to be a danger to the community, her offending being limited to drugs, traffic and dishonesty, there being no record of violence. Furthermore, she refers to the comment by the alcohol and drug clinician, suggesting Ms Kerr has a genetic predisposition to drug use. A sentence of community work and intensive supervision is appropriate, in Ms Gould's submission.[22] On the secondary ground of appeal that the Judge erred in failing to allow for an adjournment to allow for the other occupant's community detention sentence toend in six weeks time, counsel notes the lack of reasons for declining anadjournment. It is said that decision "unfairly prejudiced" Ms Kerr's chances inavoiding imprisonment and an adjournment should have been granted in the interests of justice.Analysis[23] Blackmail is a serious crime for which imprisonment is often the most appropriate sentence having regard to the maximum penalty of 14 years and the provisions of the Sentencing Act.13 However since home detention has been available as a stand-alone sentence, that sentence is now not uncommon.14 Other community based sentences have been imposed when the circumstances have warranted it.15[24] In sentencing Ms Kerr, the District Court Judge carefully considered theprinciples and purposes of the Sentencing Act and noted that he must sentence "on13 R v Thomas CA138/05, 6 July 2005 at [23] and R v Witoko HC Rotorua CRI-2007-063-1355, 5 February 2008 at [20].14 See for example R v Verma [2012] NZHC 3160; R v Hulme [2012] NZHC 1766.15 See for example Currie v R [2011] NZCA 624; R v Thomas, above n 13.the basis that the least restrictive outcome is to be imposed".16 In light of the concerns raised by the pre-sentence report and the proposed home detention address, the Judge appropriately reached the conclusion that home detention was not, at the time of sentencing, an available option.[25] The Judge was not required expressly to rule out any lower level sentence on the sentencing hierarchy. He did not err in failing to impose a lower level community based sentence in the circumstances of this case. The final sentence of 12 months' imprisonment was entirely appropriate for three principal reasons.[26] First, the offending was sufficiently serious to attract a sentence of imprisonment. As noted by the Judge, the blackmail offence did not involve a lot of money but did involve ongoing threats and demands. This was an aggravating feature of the offending and was appropriately taken into account. The threat of a rape allegation was extremely serious.17 The sentence also had to incorporate Ms Kerr's convictions for wilful damage and intimidation.[27] Secondly, the Judge was correct to note Ms Kerr's previous dishonestyconvictions were a concerning factor to take into account.18 Her previous convictions appropriately underpinned principles of denunciation and deterrence in determining the appropriate sentence.19[28] Thirdly, Ms Kerr's offending occurred while subject to an intensivesupervision sentence. She had also breached conditions of community based sentences and release conditions on three previous occasions. It was therefore unsurprising the Judge ruled out a community based sentence when Ms Kerr had a poor history of compliance.16 Police v Kerr, above n 4, at [42]; Sentencing Act 2002, ss 8(g) and 16.17 R v Takao HC Rotorua CRI-2004-087-2227, 29 April 2005 at [22] where Keane J noted thefactors relevant to sentence include "the relationship, if any, between blackmailer and victim, thethreat underlying the demand, the sum demanded, how persistently the demand is made, whether the demand is successful, the vulnerability of the victim to the demand, and the effect on thevictim of the demand".18 Police v Kerr, above n 4, at [44].19 At [42].[29] Ms Gould's reliance on R v Rawiri does not assist Ms Kerr's appeal.20 The circumstances of that case differ and the need for rehabilitation and its connection to the offending at hand was particularly strong in that case. The Court must impose the least restrictive sentence that is appropriate in the circumstances in accordance with the hierarchy set out in s 10A of the Sentencing Act. In view of the nature ofthis offending, a "double drop" down the hierarchy of sentencing would beinappropriate.21[30] Finally, there was no error in the Judge declining another adjournment. TheProbation Service's assessment of the proposed home detention address had been carried out as a result of the first adjournment. Ms Kerr's proper recourse was unders 80I of the Sentencing Act and she was granted leave to apply at a later date to substitute her sentence.Result[31] Ms Kerr's sentence of 12 months' imprisonment was entirely appropriate.The appeal is dismissed.Thomas JSolicitors:Crown Law, Wellington20 R v Rawiri, above n 11.21 See Ministry of Social Development v Albert [2015] NZHC 1288 at [40] and Harris v R [2013] NZCA 611, [2014] 2 NZLR 438 at [21] and Inland Revenue Department v Song HC Wellington CRI-2008-485-158, 10 February 2009 at [32].