ARTHUR v NEW ZEALAND POLICE [2018] NZHC 279

ARTHUR v NEW ZEALAND POLICE [2018] NZHC 279 [28 February 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2017-409-000161[2018] NZHC 279BETWEEN RUSSELL COLIN ARTHURAppellantAND NEW ZEALAND POLICERespondentHearing: 22 February 2018Appearances: A McCormick for the AppellantC Bernhardt for the RespondentJudgment: 28 February 2018JUDGMENT OF DUNNINGHAM JIntroduction[1] On 13 December 2017, Judge Callaghan sentenced the appellant to 21 months'imprisonment after he pleaded guilty to one charge of blackmail.1[2] The appellant appeals this sentence on two grounds:(a) the Judge erred in his assessment of the appellant's culpability, thusrendering the starting point too high; and(b) the Judge erred by not sentencing the appellant to home detention inlight of his actual culpability and the identified mitigating factors.1 New Zealand Police v Arthur [2017] NZDC 29542.Background[3] In mid-2015 a business arrangement between the victim and an associate,Mr Le Breton, soured. This resulted in the initiation of civil court action by bothparties.[4] On 28 January 2017, the victim was on his bus at a car show. The appellantboarded the victim's bus, saying:I'm the guy who saved your life, you're fucking with family mate, we are the[referring to the gang] family, we are worldwide, nobody fucks with us theLe Bretons are our family.[5] At the same time a number of patched gang members were moving nearbyaround the car show. The appellant told the victim that unless he answered a phonecall the following day at midday, the appellant would disclose confidential documentsto numerous political, governmental and media sources. The victim is the owner anddirector of several construction-related businesses around New Zealand. Thedisclosures would allege that the victim had been intentionally misrepresenting hisbuilding products and was placing the safety of members of the public at risk becauseof that misrepresentation.[6] Prior to leaving the bus, the appellant told the victim that unless he answeredthe phone the next day, "we will destroy you and your company completely".[7] The following day at midday, the appellant phoned the victim. The appellantdemanded an apology from the victim to Mr Le Breton and his wife, as well aswithdrawal of all civil court action by the victim against the Le Bretons. The appellantclearly outlined that a failure to comply would result in disclosure of businessinformation alleging misrepresentation of the building products.[8] Over the following weeks, the victim received a number of threatening textmessages from the same telephone number which the appellant called from. At firstthese text messages were attributed to the appellant, but the appellant disputed this andthe Crown acknowledged it was not able to prove the appellant was responsible forthem. The victim and members of his family also received envelopes with confidentialdocuments related to the building products alleged to be misrepresented.[9] The victim continued to receive threatening text messages until he left thecountry with his family in mid-February 2017, fearing violence against them.[10] On 10 February 2017, the appellant phoned the Auckland-based operationsmanager for one of the victim's companies. The appellant attempted to persuade themanager to join a legal action against the victim, saying he had the co-operation ofother staff members and had secured immunity from prosecution for them. This wasuntrue.District Court decision[11] At the time the appellant pleaded guilty to the charge he sought a disputed factshearing as he denied having sent any text messages to the victim, but accepted that hehad spoken to the victim in person at the Rangiora car show, had telephoned him, andhad telephoned an Auckland-based employee of the victim's business. The Crownconceded that it could not prove the appellant had sent the offending text messages,nor that he had had any other contact with the victim or members of his family, andthe Judge proceeded on the basis of a summary of facts which deleted all allegationsexcept the conduct admitted by the appellant. The Judge noted that despite theappellant being the only person charged so far in relation to this matter, it appearedthat others were involved and the appellant's role was somewhat limited.[12] The Judge recognised the severity of punishment that blackmail usuallyattracts, and that imprisonment has traditionally been the only available sentence. Hecited cases that recognised that prison was now not inevitable but that still suggestedthere was a presumption towards a sentence of imprisonment.2[13] In setting the starting point, Judge Callaghan noted the aggravating features ofthe offending including the use of gang members to intimidate the victim, and themultiple occasions of blackmail, showing a degree of premeditation. His Honour2 R v Takao HC Rotorua CRI-2004-087-2227, 29 April 2005 and R v Williams [2012] NZHC 506.recognised the effect on the victim, as well as the threat involving interference withcivil court processes. In mitigation, the Judge accepted that the appellant was actingunder a form of duress based on an indebtedness to the gang. His Honour weighed upthe fact that the appellant could not be held exclusively responsible for the offendingand effect on the victim, but referred to him as "part of the cog of this plan ofblackmail" and stated that his "involvement can only be viewed as quite integraloverall".3 His Honour confidently set a starting point of two and a half years, indeedstating that was "the very minimum in respect of offending such as this".4[14] Regarding personal mitigating features, the Judge made an allowance for theappellant's wife's ill health, and the fact that the appellant's imprisonment would be areal hardship on her. The Judge also noted the appellant's chronic back injury, lack ofprevious convictions in the last 30 years, and commitments to his family business. HisHonour therefore reduced the starting point to 27 months' imprisonment.[15] Finally, the Judge gave a 20 percent discount for the appellant's later-stageguilty plea. This brought the final sentence to one of 21 months' imprisonment.[16] In considering whether to convert this sentence to one of home detention, theJudge decided that doing so would not meet the accountability and deterrencerequirements of the Sentencing Act 2002 and declined to do so.Principles on appeal[17] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.5 As the Court of Appeal stated in Tutakangahau v R, "an appellate courtwill not intervene where the sentence is within the range that can be properly bejustified by accepted sentencing principles".6 It is only appropriate for this court to3 At [12].4 At [23].5 Criminal Procedure Act 2011, ss 250(2) and 250(3).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].intervene and substitute its own views if the sentence being appealed is "manifestlyexcessive" and not justified by the relevant sentencing principles.7SubmissionsAppellant's submissions[18] The appellant submits that the Judge erred in his assessment of the appellant'sculpability despite the fact that it had been agreed that his offending related to just thethree identified incidents. The particular observation that the appellant takes issuewith is the Judge's comment at [21] of the sentencing notes, that Mr Arthur was "asignificant cog in the blackmail strategy and clearly knew what was going on". Thisconclusion was relied upon to set a starting point of 30 months' imprisonment. Theappellant submits that this assessment was wrong as there was no evidence to suggestthat Mr Arthur knew anything of the extent of the blackmail strategy against thevictim.[19] He then also addresses the features identified in R v Takao,8 as relevant tosentencing for blackmail, and submits that:(a) no physical harm was threatened;(b) no particular sum of money was demanded; and(c) the element of premeditation was not easy to assess given it wasaccepted that the appellant was a "small cog in a far larger wheel" thatwas pressuring the victim.Again he submits these factors should have been reflected in a lower starting point.[20] In relation to the second ground of appeal, which is the failure to grant homedetention, the appellant relies on his submissions as to the Judge's erroneous7 Ripia v R [2011] NZCA 101 at [15].8 R v Takao, above n 2, at [22].assessment of his culpability. He also asserts that the Judge gave insufficient weightto:(a) Mr Arthur's wife's mental health condition and his own physicallimitations as a result of a back condition;(b) Mr Arthur's lack of convictions in the past 30 years; and(c) Mr Arthur's business interests which have now failed since hisimprisonment.9[21] In particular, counsel notes that at sentencing the Judge did not have detailedinformation regarding the appellant's wife's mental health. Detailed information isnow available via a copy of her Canterbury District Health Board file, which theappellant wishes to adduce as fresh evidence. She was diagnosed with a majordepressive episode in 2015 and has an alcohol dependency. Her most recentinteraction with Psychiatric Services was on 8 January 2018, reporting incidentalsuicidal ideations. Her file notes that this criminal proceeding and the risk of herhusband going to prison has been a significant recent stressor in her life. Counselsubmits that had this information been before the Judge, "it would have served tofurther emphasise the hardship that His Honour did identify as being real".[22] Given the clear authority that imprisonment is no longer an inevitable sentencefor blackmail10 and in light of this further evidence, the appellant submits a sentenceof home detention was available to the Judge and would have been the mostappropriate, and least restrictive outcome for the appellant.Respondent's submission[23] In relation to the starting point, the respondent submits that the Judge wascorrect in adopting a starting point of two and a half years' imprisonment.9 However, the paragraph in the Judge's sentencing notes referred to in support of this propositiondo not go so far as to say they have failed, and the information on file suggests simply they arestruggling.10 R v Hulme [2012] NZHC 1766, R v Lal HC Auckland CRI 2009-004-5813, 20 April 2011, andR v Verma [2012] NZHC 3160.[24] Using the case of R v Rewi as a comparison, the respondent submits that thestarting point adopted of two and a half years was, in fact, relatively lenient.11 In Rewi,the defendant entered the victim's business and demanded $1500, made threats to thevictim's business and, in later communications, to his home and family. In that caseCollins J adopted a starting point of three years' imprisonment. Here the respondentargues that this case is arguably more serious than Rewi, in that one of the threatsrequired the victim to discontinue a civil case claiming $2 million. In addition, theappellant was involved in a concerted operation rather than being a single offender,and the demand involved an attempt to interfere with the judicial process by requiringthe cessation of proceedings through threats, which should be seen as a significantlyaggravating feature. The respondent also submits that the Judge's assessment of theappellant as "a significant cog in the blackmail strategy", who "clearly knew what wasgoing on", was available to him on the agreed summary of facts and thus the startingpoint was within the available range.[25] In terms of whether the sentence should have been converted to one of homedetention, the respondent submits that the Judge was justified in his refusal. While theCourts have moved away from imposing a sentence of imprisonment for any case ofblackmail, the respondent nevertheless submits that the appellant would need to show"circumstances out of the ordinary in order for home detention to be considered", andthat was not the case here.[26] Counsel does, however, recognise that the appellant's personal circumstancesmake the choice between imprisonment and home detention a finely balanced one.That said, counsel submits that the weight Judge Callaghan gave a factor at sentencingis not a basis to challenge the exercise of his discretion in deciding betweenimprisonment and home detention.12 As the Court of Appeal stated in R v D:13[66] In a case like this, the sentencing Judge is required to form a judgmenton whether imprisonment is necessary or home detention can respondadequately to the seriousness of the offending. The closer one gets to thedividing line, the more difficult it becomes to articulate reasons for preferringone approach to the other. In such cases, the view of a sentencing Judge fromthe jurisdiction in which crimes of the type in issue are frequently tried11 R v Rewi [2012] NZHC 1410.12 McConnel v R [2013] NZCA 303; Doolan v R [2011] NZCA 542.13 R v D [2008] NZCA 254.assumes greater weight. He or she will be in a much better position than anappellate Court to determine which type of offending falls on one side of theline or another. The broader the base of similar offending a particular Judgesees, the more likely it is that the chosen sentencing response will beappropriate.[27] Accordingly, the respondent submits that the sentence imposed by the Judgewas appropriate and the appeal should be dismissed.AnalysisWas the starting point too high?[28] The appellant's first ground of appeal focuses on whether the Judge wasentitled to describe the appellant as a "significant cog in the blackmail strategy" andsentence on this basis, given the concessions made by the Crown and the modificationof the summary of facts.[29] I consider he was. When the sentencing notes are read as a whole, it is clearthat the Judge's statement that the appellant "knew what was going on" related to thefact the appellant knew that the people who were putting pressure on him to contactthe victim, were endeavouring to put unlawful pressure on the victim and to stop himpursuing the claim against Mr Le Breton. This is captured in the Judge's statement at[10] where he says that the appellant "did not become involved in the text messagesor anything else but you knew very well what was going on and that the supporters ofMr Le Breton were wanting to take substantial steps to affect the victim's business.So you knew that this was more than just an idle threat". This conclusion was clearlyavailable on the amended summary of facts and correctly formed the basis forassessing the appellant's culpability.[30] In all other respects, I consider the starting point set was well within range. Itfairly reflected the factors considered in Takao, including the repetition of the threatsby the appellant, the potentially significant financial consequences for the victim ofcomplying with the demand (being the cessation of civil proceedings claiming asignificant sum of money), and the fact it had a serious effect on the victim and hisfamily, such that he would contemplate, and actually did, leave the country.[31] In cases where money is demanded, and where there have been repeated threatsand those threats include violence, the Courts have adopted a starting point of aroundthree years.14 While the present case did not involve threats of violence (at least notby the appellant) the threats were to wreck financial havoc on the appellant and hisfamily, the repetition of which must have indicated to the victim the seriousness of thethreat. In all the circumstances, I consider that the starting point of two yearssix months' imprisonment for making such threats on three occasions is entirelyappropriate.[32] I therefore reject the first ground of appeal that culpability was wronglyassessed and that the starting point was too high.Was the Judge wrong to reject a sentence of home detention?[33] The second ground of appeal relates to the refusal to grant home detentiondespite that being an available option. However, as the Court of Appeal identified inJames v R:15an appeal against a refusal to grant home detention does not provide anopportunity to revisit or review the merits. The question is whether [theJudge] erred in exercising his sentencing discretion: that is, did he apply anincorrect principle, give insufficient or excessive weight to a particular factor,or was he plainly wrong?[34] In this case, the Judge expressly referred to the purpose and principles of theSentencing Act when concluding that home detention was not appropriate and thatsuggests the appeal is simply challenging the merits of that decision. However, it isnot clear to me that the Judge exercised his discretion on the understanding that therewas no presumption that imprisonment was required to denounce and deter the crimeof blackmail. I say this because early in the sentencing exercise, the Judge cited thedecision in R v Patterson, which emphasised the seriousness with which the Courtsview blackmail and that it generally attracts a sentence of imprisonment,16 and inTakao, where it was said that "only exceptionally is emphasis able to be given also to14 R v Rewi, above n 11; R v Wilkie HC Wellington CRI-2004-078-506, 17 December 2004 (affirmedby CA 6/05, 27 April 2005); R v Thompson [2012] NZHC 798 and R v Zheng [2012] NZHC 1102.15 James v R [2010] NZCA 206, (2010) 24 NZTC 24, 271 at [17].16 R v Patterson CA228/96, 22 August 1996.a sentence which rehabilitates and reintegrates" but otherwise "nothing less thanimprisonment will answer it".17[35] Nowhere is reference made to the fact that those views have been expresslydeparted from in subsequent decisions. For example, in R v Thomas, it was made clearthat in light of the Sentencing Act 2002, a presumption in favour of imprisonment forblackmail does not exist.18 Instead, the Court of Appeal in Thomas said that inblackmail cases "it is incumbent on the sentencing judge to consider whether acommunity-based sentence could achieve the purposes of sentencing" instead ofimprisonment.19 That view was reiterated in Sale v New Zealand Police,20 whereEllis J allowed an appeal against a refusal to grant home detention to the appellantswhen the first instance judge relied on the views articulated in Takao to impose aprison sentence and not home detention. Ellis J held that in light of s 16 of theSentencing Act, the sentencing Judge must consider whether a community-basedsentence would achieve the relevant purposes of sentencing, and any choice betweentwo genuinely available sentencing options must be guided by the requirement toimpose the least restrictive outcome.21[36] In this case, while the Judge referred to the purposes and principles of theSentencing Act, it is not clear to me whether he had full regard to s 16 when he rejecteda sentence of home detention.[37] However, I do not need to decide that conclusively because I consider theappeal should be allowed on other grounds. Mr McCormick sought to introducefurther and updated evidence regarding Mr Arthur's wife's mental health. I wasprovided with her full medical records, which outline significant mental health issues,both prior to and following sentencing. In particular, her psychiatric assessment on8 January 2018 reports her seeking medical attention having presented at theEmergency Department. It says she is "struggling with her moods since her husband'simprisonment" and with the fact that their family business is now struggling. It17 R v Takao, above n 2, at [20].18 R v Thomas CA 138/05, 6 July 2005.19 At [9].20 Sale v New Zealand Police [2014] NZHC 1933.21 Sale v New Zealand Police, above n 20 at [25].appears, too, she has relapsed into alcohol dependence as a consequence of the "recentsocial stressors". This distinct downturn in her mental health as a consequence of herhusband's imprisonment was also reflected in a letter provided to the Court from herclinical psychologist, Terri Donovan.[38] I accept the respondent's submission that the appellant's wife's mental healthissues were not ignored in sentencing. The Judge was clearly alive to them, and theCanterbury District Health Board records which are now available to confirm theposition at the time of sentencing are not strictly "fresh evidence" and are not admitted.However, I do consider the records which update the position since sentencing, andoutline the downturn in her mental health since her husband's imprisonment, constitutefresh evidence which should be allowed on appeal and taken into account in decidingwhether home detention is appropriate. I accept this evidence meets the test of beingsufficiently fresh and sufficiently credible to be admitted and considered.22[39] Having identified a concern that the Judge may have approached sentencingon the basis there was a presumption as to imprisonment, but more importantly,accepting the further evidence as to the recent deterioration in Mrs Arthur's mentalhealth, I consider I must exercise the Court's discretion afresh, having regard to thess 7 and 8 purposes and principles of sentencing that are relevant in this case.[40] In my view, the Judge was correct to place weight on the need to denounce anddeter blackmailers. However, while a prison sentence can do that, that can also beachieved through a sentence of home detention.23 Taking into account the freshevidence as to Mr Arthur's deteriorating family circumstances, Mr Arthur's own lackof convictions in the past 30 years and the adverse effects on the family's incomebecause he is unable to assist his family run business, I consider home detention is themost appropriate sentencing option. I am fortified in this view by the supportivepre-sentence report which assesses Mr Arthur as having the "willingness and theability to abide by such a sentence". I also observe that Mr Arthur has now servedaround two and a half months of his sentence, and has experienced the deterrent effectof spending at least part of his sentence in a prison environment.22 R v Bain [2004] 1 NZLR 638, (2003) 20 CRNZ 637 (CA).23 Sale v New Zealand Police, above n 20, at [30].[41] In the circumstances, I am satisfied that the principles and purposes of theSentencing Act can be achieved by a sentence of home detention. The appeal istherefore allowed and the sentence of 21 months' imprisonment imposed by theDistrict Court is quashed. A sentence of eight months' home detention is substitutedto be served at the address and on the terms proposed in the pre-sentence reportprovided to the Court. The standard and the special release condition imposed by theDistrict Court Judge will continue to apply.[42] This judgment is not to take effect until Friday, 2 March 2018, as I consider itsensible to afford some time to address any practical considerations which may arisein implementing a sentence of home detention.Solicitors:Brandts-Giesen McCormick, RangioraRaymond Donnelly & Co., Christchurch