Aitkin v the Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0243

DARREN AITKIN	Appellant
V
THE QUEEN	Respondent

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JUDGES:	WEINBERG AND KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 MAY 2017
DATE OF JUDGMENT:	8 MAY 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 103
JUDGMENT APPEALED FROM:	DPP v Aitkin [2016] VCC 1653 (Judge Hampel)

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CRIMINAL LAW – Sentence – Appellant convicted of a charge of blackmail for which he was sentenced to 5 years’ imprisonment and a charge of breaching a personal safety intervention order for which he was sentenced to 6 months’ imprisonment – Total effective sentence of 5 years and 6 months with a non-parole period of 3 years and 6 months – Sentencing discretion miscarried in relation to blackmail charge because judge impermissibly relied on matters external to the charged conduct – Sentence for blackmail manifestly excessive – Appeal allowed – Appellant resentenced to total effective sentence of 4 years with non-parole period of 2 years and 9 months.

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APPEARANCES:	Counsel	Solicitors
For the appellant	Mr S R Johns	Leanne Warren & Associates
For the Crown	Mr M D Phillips	J Cain, Solicitor for Public Prosecutions

WEINBERG JA
KYROU JA:

Introduction and Summary

On 12 August 2016, the appellant pleaded guilty to a charge of blackmail[1] and two uplifted summary charges. Following a plea hearing on 12 August 2016 and 27 October 2016, he was sentenced by a County Court judge on 3 November 2016 as follows:[2]
[1]Pursuant to s 87(1) of the Crimes Act 1958, a person is guilty of blackmail ‘if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces’.
[2]DPP v Aitkin [2016] VCC 1653 (‘Sentencing remarks’).

Charge

Offence

Maximum

Sentence

Cumulation

1

Blackmail

[s 87 Crimes Act 1958]

15 years

5 years

Base

Uplifted summary charge 4

Breach Personal Safety Intervention Order

[s 100 Personal Safety Intervention Orders Act 2010]

2 years

6 months

6 months

Uplifted summary charge 6

Possess cartridge ammunition

[s 124 Firearms Act 1996]

40 penalty units

$500 fine

Total Effective Sentence: 5 years and 6 months’ imprisonment

Non-Parole Period: 3 years and 6 months’ imprisonment

Pre-sentence detention declaration: 231 days

Section 6AAA statement: Total effective sentence of 8 years’ imprisonment with a non-parole period of 5 years and 6 months.

On 2 March 2017, Priest JA granted the appellant leave to appeal against his sentence on four grounds, the main ones being that the judge impermissibly relied on matters external to the charged conduct, that she inappropriately rejected psychological evidence, and that the sentence is manifestly excessive.

For the reasons that follow, the appeal will be allowed and the appellant will be resentenced in accordance with the table at [116] below.

Circumstances of offending

The precise scope of the charged conduct is central to the appellant’s contention that the judge impermissibly relied on matters external to that conduct. Accordingly, we set out below the relevant parts of the Amended Summary of the Prosecution Opening dated 12 August 2016 (‘Prosecution Opening’), which was read and tendered at the plea hearing.

Overview
1Over a two month period the [appellant] made numerous demands to the [complainant] that she telephone him to discuss the end of their friendship, and that she repay an amount of $310. He threatened her that if she failed to do this he would kill her, and/or he would publish intimate photos of her on social media and send them to her friends and family.

Background
2[The appellant] was born on 25 August 1967 and is 48 years old. He was aged 47–48 at the time of offending.
3The [complainant] was born on 3 April 1998 and is 18 years old. She was 17 at the time of offending and lived in … Queensland.
4The [appellant] was best friends with the [complainant’s] father … who he had known since 1996. The [appellant] has known the [complainant] her entire life.
5The [appellant] lived in Queensland until December 2013, when he relocated to Victoria.
6The [complainant] acquired her first mobile telephone at the age of about 12. From that point, the [appellant] began giving money to the [complainant] in order to buy credit on her phone.
7Initially the [appellant] did not ask for anything in return. This continued on a regular basis for 1-2 years.
8When the [complainant] was 13 or 14, the [appellant] began asking her to send photos of herself in return for the money he was providing. The photos were ‘normal photos’, though the [complainant] noticed she began reaching puberty at this age.
9After a couple of months the [appellant] sent messages to the [complainant] telling her that she could ‘send better’. He sent these messages after the [complainant] sent photos which weren’t revealing or depicted her in a number of layers of clothes. The revealing nature of the photos continued to increase, though there was never any nudity.
10The majority of photos depicted the [complainant] wearing a bra without a shirt, and wearing very short mini-shorts. They included her wearing a bikini.
11Towards the end of 2014 the [appellant] and [complainant] had an arrangement whereby the money he was transferring her was in direct response to the photos she would send him. On average she sent four photographs a week, and the [complainant] estimates she received $10,000 from the [appellant] over the years.
12At about this time the [appellant] made contact with [another girl, AA] through Facebook. [AA] was 16 years old and went to the same school as the [complainant], but was not friends with her.
13His initial messages to [AA] centred on the untrustworthiness of the [complainant]. He would comment on past actions of the [complainant] and ask [AA] for information. He said that he had previously lost one or two of his own daughters, and that the [complainant] and her friend were like his ‘replacement daughters’. On a number of occasions he talked of his hatred towards the [complainant] and how he could kill her.
14At the start of 2015 the [complainant] commenced a relationship with [a young man, BB], then aged 19.
15On one occasion between March and May 2015 the [appellant] sent a text message to the [complainant] stating ‘friends til the end’. It was accompanied by a photograph of the [appellant’s] hand holding two bullets.
16The [complainant] continued sending photos to the [appellant] until April 2015. From April to June the [complainant] did not receive any money from the [appellant]. In June or July she received about $270 from him to undertake a course and fix her phone.
17In June or July 2015 the [appellant] called the [complainant] and said he was at Brisbane airport and was coming to stay with her … The [complainant] refused and the [appellant] became angry. He threatened to post the photos she had sent him on social media.
18In July 2015, the [complainant] took steps to change her mobile phone number given the number of calls she was receiving from the [appellant].

Offending
19Throughout August & September 2015 the [appellant] demanded that the [complainant] repay $310 and call him to discuss the end of their relationship. He contacted her friends and family to communicate his threats.
20While a number of messages were sent from the [appellant’s] personal email, Facebook and Instagram accounts, he also sent numerous communications from fake accounts he had set up.
21From mid-August 2015 the [appellant] began contacting [BB’s] mother by email and phone. He sent her 22 emails between 14 August and 10 September 2015.
22In his messages [to BB’s mother] he asked her to have a chat with him to put an end to the harassment; he made offensive comments about her son and her parenting; he acknowledged his behaviour had been poor, and that he would stop everything if the [complainant] paid back ‘money borrowed’. He stated: ‘… If not … well the saga will continue and believe me I WONT STOP and won’t be seeing my nieces and nephews again (EVER) … All up to [the complainant]… You have 24 hrs to get back to me’.
23A later message attributed his behaviour to his then ‘illness’ and clarified the amount due as $310.
24[BB’s mother] did not respond to any emails. She had never previously met nor spoken to the [appellant]. As a result of the emails she felt distressed, offended and scared.
25At about this time the [appellant] also attempted to contact [CC], the 19 year old sister of [BB]. He sent her messages from two Facebook accounts, ‘[DD]’ and ‘[EE]’. [CC] had never previously met the [appellant] and felt harassed and scared.
26On 28 August 2015, the [appellant] posted a message to [BB’s] Instagram account with an image of the word’s ‘It’s Over!’. [Accompanying] the image was an apology from the [appellant] for his behaviour. He said he had received a wakeup call, and reiterated that if the [complainant] paid the $310 he would leave them alone.
27On 29 August 2015, the [appellant] posted a number of messages on [BB’s] Instagram account. They included threats, demands to repay the money, messages of fondness towards the [complainant], an image showing a message he had sent to the [complainant’s] employer about the money, and a collage of images, some of which included the [appellant] and [the complainant] together.
28The [appellant] was also sending messages to the [complainant’s] father’s fiancée, [FF]. Some of the messages contained threats, indicating that [FF] was to blame and would have ‘blood on [her] hands’. They included threats to kill the [complainant], and threats to ruin [FF’s] impending wedding.
29In total he sent 52 messages [to FF] between 6 August and 25 September 2015, including:
aThat his behaviour was poor and he would stop if the [complainant] paid back the money;
b‘So sad that I WILL end the LIFE of the person who meant the WORLD to me, I don’t smoke no more but that hasn’t changed my mind … I was hoping it was the drug but now I know it’s not … Sorry for all the SHIT, I promise I won’t do anything till after your wedding’;
c‘Make sure you NJOY seeing the UNGRATEFUL KUNT in a few weeks cos she has less than 196 days left … Ps: tell YA mate I finished engraving her farewell present’. Accompanying the message was an image of a hand holding a bullet; and
dOne of the photographs of the [complainant] in her underwear.

30[FF] had blocked the [appellant’s] account on Facebook but she would receive messages from other accounts created by him. [FF] did not respond to the messages. She felt threatened and harassed.
31On 10 September 2015 at 12.47am, the [appellant] sent a text message to the [complainant’s] father, stating:
‘I’m not going to be waiting for that UNGRATEFUL BITCH of a daughter of yours much longer to get hold of me I WILL FKN START BIG TIME and FKN DESTROY her LIFE MORE if she doesn’t make some form of contact SOON (in regards to $$$) I’m well and truly Ready for the consequences, don’t give 2 FUKS as long as that KUNT gets what she deserves. Giving her way too MUCH TIME $300 she owes … should be more like $3000. She keeps it going much longer and that’s what it WILL be. How pathetic for someone to value their LIFE at $300.

32On 10 & 11 September 2015 the [appellant] posted four photos on the Instagram account …:
aThe first photo depicted the [complainant’s] face with a caption ‘[Complainant] How much $$ do I get’;
bThe second photo depicted the same threats made to [BB], [FF] and [the complainant’s father];
cThe third photo was a collage of two pictures. One was a photo of the [complainant], and the other a photo of a gun firing towards the [complainant]. Underneath was the caption ‘THE WALKING DEAD’; and
dThe fourth photo was a screenshot of a message the [appellant] had sent to the [complainant’s] employer.

33Throughout August and September the [appellant] sent the [complainant] and [BB] a number of the [complainant’s] photographs with abusive messages. In one message he told [BB] that the [complainant’s] life was in [BB’s] hands. He reiterated his demands for an apology and repayment.
34Throughout September 2015 when the [complainant] was at work each evening she received at least one phone call from the [appellant]. When she identified herself, the [appellant] either said ‘Bang’ or ‘Dead’.
35Each time the [complainant] received a call or saw a social media post she feared the [appellant] would come to kill her. By mid-September she was in the process of moving house so that he could not find her.
36On 22 September 2015 the [appellant] arranged to catch a train to Brisbane. He had paid for the ticket and reached Sydney before the train was cancelled and he returned to Melbourne. Whilst en route the [appellant’s] sister had telephoned Queensland police reporting that the [appellant] had made numerous threats to kill the [complainant] and was on his way to Queensland.
37The [appellant] subsequently told his mother that the reason he tried to go to Queensland was ‘to do something that he had promised his [deceased] Nan’. He said he desperately wanted the [complainant] to say ‘sorry’ about something but would not explain what. His mother tried to explain to him that if he was like a father figure to the [complainant], he needed to let it go.
38On 30 September 2015, the [appellant] posted a number of images on his Instagram account. The images included the photographs the [complainant] had previously sent him. He also posted a message inviting anyone to contact him if they hated the [complainant] as much as he did, and offering to send revealing pictures.
39One particular post was split into three sections: a silhouette of a man shooting a woman’s head, an image of the [complainant’s] face, and image of an unknown face that had been shot. Accompanying the image was the message ‘That’s wat is going to happen. I tried warning ALL OF YOU, but nobody cared … All [the complainant] had to do was say goodbye and payback $$$... Too late NOW.’

Arrest & Interview
40On Friday, 2 October 2015, police executed a search warrant and arrested the [appellant].
41Inside the [appellant’s] bedroom police located a number of items, including 25 x 22 calibre rounds and 1 x 222 calibre round in a plastic zip lock bag.
42The [appellant] participated in a lengthy Recorded Interview [on 2 October 2015] …

Breaches of Intervention Order
43Following his interview the [appellant] returned home to his mother. She described him as ‘cocky and as good as gold, saying that his experience was a piece of cake’.
44On Thursday, 8 October 2015 a final Personal Safety Intervention Order was made against the [appellant], protecting the [complainant]. The 12 month order prohibited various activity, including publishing on the internet by electronic communication any material about the [complainant]; and contacting or communicating with the [complainant] by any means.
45On Monday, 15 February 2016 at approximately 7.00pm the [complainant] was with her half-sister when her half-sister received a Facebook message from the [appellant].
46The message read:
‘someone better not be single!!!!!!
Wat did he catch her stealing his money or probably cheating
If she is then she can pay back that money to me (as she said)
$220
I believe the [only reason] she didn’t was that he said not to
we will soon see ...
ps: she got [GG] to call me to arrange paying it back (just in case she denies it)’.

47At 11.43pm, the [appellant] used his Instagram account … to send a message to the [complainant’s] 16 year old school friend. The friend and the [appellant] were not known to each other. The message read:
‘what went wrong…. The SLUT … pinch some of his $$$ or get caught fucking 1 of his best mates FKN PUPPYLOVE’.

48On Thursday, 25 February 2016 the [appellant] was arrested by appointment. He participated in an interview and said he did not think his messages were a personal attack. He was subsequently bailed.
49On Sunday, 13 March 2016 the [appellant] posted a lengthy message on his Instagram account. It referred to the [complainant] having lied on many occasions, including in her ‘recent statement’, and that she knew the consequences for this. He made reference to the fact that despite looking after the [complainant] for the previous 5 years she was now putting him in gaol. Accompanying the post were two old photographs of the [appellant] and [the complainant] together.
50On Thursday, 17 March 2016 the [appellant] was arrested at his home address. He participated in an interview and admitted making the message. He admitted it was directed at the [complainant] and said it was a way of venting and recoding his thoughts.[3]
[3]Citations omitted.

Record of interview

The Indictment and the Prosecution Opening make it clear that the blackmail offence was committed by a course of conduct between 1 August 2015 and 30 September 2015. The appellant was charged with that offence on 17 November 2015.

The Prosecution Opening set out the following statements from the appellant’s record of interview dated 2 October 2015:

a‘… [the complainant] was my princess, she was my daughter who I basically supported, looked after, maybe couldn’t let go…’ (Q.15);
bHe described the [complainant’s] partner as a ‘bit of a control freak and jealous’ and noted he had accused the [appellant] of being a paedophile. ‘… So from that moment on, which was maybe in June, July [2015], I’ve sort of been on … a hate campaign against [the complainant]. Mainly – the – the reason is, to sum it up, she hasn’t said goodbye to me. I’ve known her for 15 years, I’ve looked after her, a daughter, I’ve spoiled her as a princess … and I’ve made death threats, I’ve gone – my behaviour has been disgusting, what I’ve said about the person that I love more than anyone in this world and, yeah, it’s just sort of escalated, the behaviour and all that, the hate, and the threats, the death threats, which I mean I never would have done but … Hopefully, maybe this has in a way put an end to it but if she still doesn’t say goodbye to me and pays back just a little bit of money, which she only borrowed recently, which is not much – not much at all – I – I may still go ahead with that threat….’ (Q.15);
c‘…I will not be happy and I will not accept anything else bar her saying goodbye to me in the right manner that I think I deserve … I’ve spoke to police in ... I’ve spoke to the community groups in … just trying to get some sort of way to get through to her that I was, I would say, serious about the death threats.’ (Q.15);
dHe had known the [complainant] her entire life, and had a trust with her family. He described them as his real family, and that he was the first one they would trust with their children (Q.19);
eHe had started ‘smoking ice’. He used it more frequently throughout 2014 and increased to half a gram each fortnight. He attributed his behaviour to the drug (Q.24);
fThe [complainant] would send him photos but he didn’t look at them. He said the [complainant] used to ‘expose herself a lot’ and do ‘some nude stuff’ as a 13 year old on Instagram and Facebook, and he had reprimanded her for it. ‘And she just sent me photos in bikinis or – or – didn’t matter – dressed or – it didn’t matter what it was. But obviously it’s not a good look. Like I said to you guys, don’t judge me by that because there’s a lot more to it …’ (Q.31);

g‘… So there had to be a trust that she would never say anything. I mean, to trust a 15 year old, now I know it’s wrong, now I know it’s stupid. But I had to have that trust. Her mum was a bit different but the dad – dad was me best mate who I love like a best mate. But yeah, I s’pose that the trust that we kept, [Complainant], you can never say stuff. You can never say how I’ve spoiled you. You just can’t do that … (Q.31);

h He never thought anything sexual towards the [complainant] (Q.43);
i‘So I wouldn’t – I wouldn’t give her money no more so – you know, there’s messages there where, “Oh, well, [complainant],” you know, “you’re a little slut. Send me a photo if you want money,” or something like that, you know. It got to that stage where I maybe wanted to sorta make her feel bad for what she had done to me.’
Much later in the interview he was pressed further and said ‘… I hated her guts ‘cause she broke me trust, she still wanted money so – I dunno, maybe somewhere in there I’ve gone, “Send a photo or something, show us your tits or” – I dunno. Not show us your tits. And I would say, “You’re hot, [complainant],” I mean, that – that – that was the only place where I could say anything to her, “You’re looking good, [complainant]. You’ve got some fat there, [complainant]”. I was always commenting on her looks and that – that’s me. And do I think it’s wrong? 95 per cent of the population, yes, but not the way me and [the complainant] had a relationship, no.’ (Q.43, 306);
j‘… then I’m giving her money for whatever reasons – yeah. Sometimes it’ll – it will look like that I’m giving her money for photos and stuff like that, which wasn’t the case. It was she wanted to be money-hungry little bitch. Well, that’s how you’re gunna be treated. I’ll treat ya like one. So that’s probably covered the period up until Christmas [2014] where we’re still fighting and all that and that was the drug – I dunno what it was, but it wasn’t me. It was probably the drug doing stuff …’ (Q.43);
kAfter the [complainant] broke his trust he found ‘another girl’, [AA] in November 2014. ‘I only came in contact with her ‘cause I knew she hated [the complainant] … I knew she hated [the complainant] and I maybe wanted some ammunition or something like that …’ (Q.43);
lIn February 2015 the [complainant] had a boyfriend, and ‘all of a sudden I’m like, I’m losing me princess …’ He could see her slipping away, and later said he found it hard to accept she had a boyfriend (Q.43);
mIn February or March 2015 he had stopped working and was using $300–$400 in ice each week. He suddenly developed a ‘bizarre plan’ where he’d had enough of life (Q.43-44);
n‘… I honestly think there should – there could be a movie made about it, you know, but I don’t know the ending and I hope it’s not the ending that I have put on Instagram and stuff like that …’ (Q.45);
o‘… the next thing I start going through old texts and questioning stuff and the next thing, [the complainant’s] part of the plan to – to end everything … Now, there’s a couple of times basically where I’m telling her, “I’m gunna kill you … You’re part of this plan.” I – I showed her a photo of two bullets … I’m telling ya I’m gunna kill ya and you still don’t know… I said, “[Complainant], there’s two of ‘em.” And all of a sudden I think I must have clicked in the head that – one each, you know, like – it got to the stage where, yeah, it was, “One each, [Complainant]” How I could do that to a person I loved more than anyone in the world – I – I couldn’t, I know that but I said it and I’ve said it many a time since … (Q.45);

p ‘I know my behaviour’s despicable, appalled, disgraceful.’ (Q.45);
q He hadn’t used ice for about 33 days (Q.45);
r‘… I still think I deserve that goodbye. I got to the stage where I told me mum and all that that I was going to kill [the complainant], that was part of the plan and that – that was only, you know, over the last month and then I’ve been able to sort of – I know that’s my way of crying out for help …’ (Q.45);
sHis mindset was caused by the drug, so he decided to see his GP. He obtained a referral and was seeing a psychologist. He had an appointment to see a psychiatrist (Q.45);
t‘… last week I – I was going to Brisbane. I made a trip. I told mum I was gunna fuckin’ kill her. I’d gone to me nan’s grave, I’d had enough, you know, like, I wasn’t going to do it but I didn’t have no money anyway … I was just gunna go up to Brisbane to get away, whatever. I said goodbye to mum and [my half sister], me family and all that. I don’t know what I had planned, I – I dunno, you know, like, I’d seen the psychologist and all that and I don’t know where me head was but I’d lost it. So this is last Tuesday – yeah. Yeah, so I jumped on a train, whatever, I don’t know what me plans were – I honestly don’t know. I know I said I was gunna kill [the complainant] and all that to me mum and all that. Maybe for them they take it serious – I don’t know, it’s – look for help, I don’t know what I was doing. Reaching for help, I dunno … Somehow the train was cancelled … so I ended up coming back …’ (Q.45);
uHe admitted ownership of the ammunition, stating he got them off someone. He later said he had them to show the [complainant] he was ‘serious maybe’. He didn’t realise they were still there (Q.87–88,316);
vHe was asked specifically about the exchange of photos for money, and initially said it was part of his promise to look after her, by giving her money. When pressed further, he stated it was his way of humiliating her for breaking his trust. He then stated: ‘[The complainant] still expected money as a princess. She just thought she could break the trust, I’d have her back as my princess and all that. And it didn’t work like that, she broke me trust so [Complainant] if you want money, you know, show me a photo or something or I – I’m – I’m not sure how that sort of worked out but – ‘cause a lot of the time I was off me tree, as in the ice … and I dunno, bizarre as it sounds but somehow she was like a goddess at stages. As I say, this is a bizarre story, there should be a movie made about it but … [N]ext minute she wanted to be a bloody – a financial dominatrix or whatever, you know what I mean, so well that’s how financial dominatrix go, you send photos or you do this or you do that or you make comments … and she wanted to be that then so I was, in a way, training her to be that … I was helping her but – but not until she was 18 but I was educating her on how you could go about making money by being a bitch or something, you know…’ (Q.166-167);
w‘… If she didn’t have a boyfriend, would we be here right now though? Yeah. There were no nude photos. Plenty of bikini shots or something like that but thousands of people have seen them. As I said I didn’t – it was always in the back of my mind that she would break my trust and I would use those photos again, which I have.’ (Q.175);
x‘I mean, I told the kid on the phone I’m gunna kill her, off me tree, but yet the next day I tell her I love her more than anything when I – and I do understand how [the complainant] must have been going through such a hard time and I do feel so bad and that’s why I need to speak to her about everything to – to tell her that I’m getting better and trying to get off the gear …’ (Q.187);
y‘It’s only her boyfriend stopping her. [The complainant] would do it, it’s only her boyfriend stopping her. I can call her right now if you could organise a proper phone call it would all [be] over and I know it’s probably gone too far but that’s as simple as it is. I even got my mum to try and call her the other day and I got my sister to try and call her the other day before I was going to Brisbane last week … It’s just – I don’t think it’s right. I know what I’ve done is disgusting and appalling and I could be on thousands of charges. I don’t care if I go to gaol, I don’t care whatever …’ (Q.217); and
zHe was asked if he had ever had any serious plans to get a gun, and said ‘Not really, no. Maybe inquired about people, “Where can I get a gun from?” but I wouldn’t probably do it. I have said it many a times with [the complainant], “I’m gunna buy one, I’ve paid half,” but I dunno, it’s just – it’s just bullshit talk. I’ve never held a gun in me hand, I’ve never fired a gun. I’ve never paid a deposit on a gun which I may have said to [the complainant] …’ (Q.229).

The appellant has been in custody since he was arrested on 17 March 2016. He pleaded guilty at the committal mention on 20 May 2016.

Appellant’s personal circumstances

The appellant was born on 25 August 1967. He has one younger brother and one younger half-sister. His parents separated in 1971 and his mother re-partnered in 1973 to a man who was violent towards the appellant and his mother.

The appellant completed year 12 at Assumption College in 1986, where he had been heavily involved in football and athletics. After initially working as a sales clerk, he worked in the construction industry over many years.

In 1989, the appellant moved to Alice Springs with a girlfriend and worked in her parents’ garden centre. They had a daughter in 1991 but the appellant lost contact with her after his relationship with her mother ended in 1993. His daughter and the complainant have the same first name.

The appellant met the complainant’s father in 1996 while playing football in Queensland, and they developed a close friendship. The appellant continued to play football until the age of 42 and in 2006 was the president of his local football club in Queensland.

In 2011, the appellant’s maternal grandmother died.

In late 2013, the appellant commenced using methamphetamine.

In June 2014, the appellant’s long-time female friend, with whom he had had a sexual relationship when he was between around 16 and 18 years of age, died suddenly.

In December 2013, the appellant relocated from Queensland to Melbourne to be with a girlfriend, and worked laying pipelines and on bridge works.

Until the time of the commission of the blackmail offence, the appellant had a limited and unrelated criminal history, comprising mainly drink driving offences. However, between the commission of the blackmail offence in August and September 2015, and the breach of the Personal Safety Intervention Order on 15 February 2016 and 13 March 2016, on 16 December 2015 he breached an earlier Personal Safety Intervention Order by telephoning the complainant. On 17 December 2015 he was convicted in respect of that breach (and other offences) and was sentenced by the Magistrates’ Court to seven days’ imprisonment.

The appellant has the support of his mother and half-sister. In her testimonial that was tendered on the plea, the appellant’s half-sister stated that he would be welcome to live with her upon his release. She said that he had grown a strong bond with her children since he returned to Victoria in 2013 and had assisted with the children on a daily basis with sport and homework. She also said that the appellant had supported her as a single mother and encouraged her to become significantly involved with the local netball and football clubs both as an office holder and a coach.

While he has been on remand, the appellant has held the position of billet and has undertaken various courses, including drug and alcohol courses.

Plea hearing

As indicated, the plea hearing commenced on 12 August 2016 and continued on 27 October 2016.

On the first day of the plea hearing, the Prosecution Opening was tendered as an exhibit and read into the transcript.

The appellant tendered a report from a treating psychologist, Dr Dan Riddle, dated 9 May 2016 (Exhibit D4), and a report from a forensic psychologist, Mr Jeffrey Cummins, dated 8 August 2016 (Exhibit D3).

Dr Riddle conducted several sessions with the appellant between October 2015 and February 2016. The report noted that the appellant’s behaviour had become increasingly abusive, erratic and unreasonable since he had returned to Victoria in 2013 and that he had begun using the drug ‘ice’ in 2013 which ‘appears to have contributed to his abusive and increasingly paranoid behaviour’. His report concluded as follows:

Over a period of years [the appellant] appears to have become somewhat of a mentor to [the complainant] which led to [the appellant] having feelings of betrayal when [the complainant] began a relationship with a young man. It appears that [the appellant] was hurt when [the complainant] began to distance from him in favour of her own boyfriend. I believe [the appellant’s] threats and harassing behaviour toward [the complainant] was fuelled by his drug use and underlying mental health issues.
[The appellant] witnessed much domestic violence as a child and he appears to demonstrate a history of Attention Deficit Disorder related symptoms. … [The appellant] appears to have had difficulties with substance abuse of alcohol and has experienced significant gambling problems in recent years.
If [the appellant] can manage his substance use I believe he has some chance of rehabilitation.

In his report, Mr Cummins noted that the appellant had acknowledged he felt quite rejected by the complainant when she told him she had a boyfriend and no longer wanted to be in frequent contact via the internet, which in turn prompted the appellant to become obsessed and paranoid about whether she would repay the money he lent to her. The report stated that the appellant had said he progressively became more paranoid and more obsessed with the situation, as his dependency on methamphetamine and alcohol increased, to the point where he was no longer able to hold down steady employment.

Mr Cummins stated that the appellant appeared to have a good level of insight into his offending behaviour and had acknowledged that he felt rejected by the complainant because he had regarded her as a substitute for his deceased grandmother, his deceased ex-girlfriend and his daughter. Mr Cummins noted that the appellant described his relationship with the complainant as ‘a father-daughter mentoring relationship’ and that he ‘in no way regarded [the photographs he received from the complainant] as being sexual in type but, rather, regarded them as being indicative of her general development as an adolescent female, in relation to who he experienced a sense of pride’. Mr Cummins also noted that the appellant told him that, as a result of not consuming alcohol and using drugs while on remand, he is now very confident that he will make no further attempt to contact the complainant or any of her associates.

Mr Cummins’s opinion was that the appellant ‘has had a chronic alcohol dependence problem’ and could benefit from receiving mental health treatment with a focus on a number of issues which remain unresolved, namely, the death of his grandmother, the death of his ex-girlfriend and the fact that he has had no contact with his biological father or with his daughter. He also expressed the opinion that the appellant ‘spoke in a genuinely remorseful manner concerning his offending behaviour’ and that, as far as he could ascertain, the appellant ‘no longer represents a threat — direct or indirect — to [the complainant] or to [her] associates’.

Mr Cummins concluded as follows:

In my opinion at the time of offending [the appellant’s] perception, judgement and ability to engage in constructive problem solving was impaired – partly as a result of the extent of his dependency on alcohol and particularly methamphetamine, and also partly because he was then suffering from unresolved grief reactions, including an unresolved grief reaction in relation to [the complainant]. He stated he is no longer grieving in relation to the ending of his contact with [the complainant].

The appellant relied on the testimonial from his half-sister to which we have already referred, a testimonial from a former employer stating, among other things, that he would be welcomed back as an employee upon his release, and a testimonial from the coordinator of a six week course the appellant completed while in custody. The appellant also tendered a letter he wrote to the judge in which he said that he was ‘totally ashamed of [his] behaviour’ and that he had ‘learnt from [his] mistakes and will be a proud and responsible person within our community’.

The appellant relied on a number of mitigating factors, which were set out in his written submission as follows:

a.The full cooperation with police and substantial admissions when interviewed.
b.The early indication of a plea of guilty, the consent to [the] matter proceeding as a straight hand-up brief and the entry of a plea of guilty at the committal mention.
c. The expressions of remorse in the interview with police and to Mr Cummins the psychologist.
d.The absence of any similar offending in [the appellant’s] history, which is characterised by hard work interspersed with low-level alcohol related offending. It is submitted that this offending is out of character.
e.The connection between the offending and [the appellant’s] addiction to methamphetamine in the context of grief at the end of his friendship with the complainant and the relatively recent death of two people upon whom he was emotionally dependent.
f. Reliance is also placed on the content of Dr Riddle’s letter in which he suggests [the appellant] has a history of attention deficit disorder symptoms. It is submitted that this aspect of [the appellant’s] personality had a role in his obsessiveness about the complainant.
g. It is submitted these matters in combination explain [the appellant’s] out of character conduct and enables there to be reasonable confidence about his prospects of rehabilitation. It is not suggested that these matters are mitigating in the Verdins sense.
h. The existence of strong family support from [the appellant’s] mother and sister.
i. The availability of employment … upon release.
j. The evidence of good character contained in the personal references and evident from the employment history.
k. [The appellant’s] efforts to use the time in custody fruitfully as evidenced by the reference from the [Port Phillip Prison] Programs Coordinator and the course certificates.

After the prosecutor read the Prosecution Opening and the appellant’s counsel tendered the defence exhibits and noted amendments to the defence chronology, counsel began his oral submissions. He did so by linking the appellant’s unusual behaviour to his use of ice — which was said to have continued until he was remanded in custody — and by stating that the appellant’s relationship with the complainant had changed from ‘positive and nurturing’ to ‘bizarre and toxic’. The judge immediately referred to the ‘unsavoury’ aspect of the relationship, namely ‘the payment of money to [the complainant] for the sending of images in her underwear or partially dressed or in bikinis which precede[d] [the change in the relationship] … for some years’. The judge said that this ‘bizarre background’ was ‘one of [her] concerns’.[4]
[4]Transcript of Proceedings, DPP v Aitkin (County Court of Victoria, CR 16–00898, Judge Hampel, 12 August 2016, 27 October 2016) 26–7 (‘Plea transcript’).

The judge focused on the nature of the appellant’s relationship with the complainant and the provision of photographs and the payment of money in the course of that relationship, from page 26 to page 41 of the plea transcript. She said that, given the ages of the appellant and the complainant, ‘there is something that is deeply disturbing about his continuing to receive photographs of that nature of [the complainant] over that period’.[5] She said that this is ‘the context against … which [the appellant’s] behaviour over the two months of the charge has to be seen’.[6] The judge continued:

First of all it’s relevant to an assessment of the gravamen of the offending, how serious it was, how you contextualise it. It’s relevant, clearly, to an assessment of his moral culpability but it’s also highly relevant to an assessment of the risk of re-offending and an assessment of dangerousness and the need to protect the community. … That’s why I’m trying to tease these things out … because it seems to me that they’re the concerns that, in terms of sentencing principles, that need to be addressed.[7]

[5]Plea transcript 32.

[6]Plea transcript 32–3.

[7]Plea transcript 33.

The judge then said that ‘in a different context you’d call [the appellant’s conduct] grooming’. When the appellant’s counsel pointed out that the prosecution did not assert that his conduct constituted grooming, the judge explained that she used the word ‘grooming’ in the sense of ‘creating a climate where … there’s an expectation that [the complainant] can ask [the appellant] for money and he’ll give her money’.[8]
[8]Plea transcript 34.

After further discussion, the appellant’s counsel addressed whether a term of imprisonment and a community correction order (‘CCO’) was a more appropriate sentencing disposition than a head sentence with a non-parole period. In that context, the judge said that, what was ‘troubling [her] mind [was] the assessment of prospects for rehabilitation and assessment of risk of future offending sort of tied together’.[9] The judge stated that the ‘very unusual background relationship and the very unusual nature of the offending’, the inconsistencies in the appellant’s statements to Mr Cummins and those in his record of interview and his ‘inability … to control his behaviour, so as to lead to the subsequent breach of … [the] personal violence intervention order’ suggested that it was very difficult to make ‘a realistic assessment of risk to [the complainant] or to other people at this stage’.[10]
[9]Plea transcript 45.
[10]Plea transcript 46.

The judge expressed concerns about Mr Cummins’s report because he took at face value what the appellant told him and expressed opinions ‘based on that’ without any ‘real analysis of the [appellant’s] behaviour … or of the differences in what he said in the interview compared to what he [told Mr Cummins]’.[11] The judge stated that the material before her made it difficult for her to assess the risk of the appellant reoffending and raised the possibility of seeking a report from Forensicare. The judge continued:

[I]n a sense the nature of the offence masks what is … the real concern to me about the behaviour … which is what we’ve been discussing. I’ve got to sentence him for what he’s pleaded to and the offending. … I’m very clear about that. … I know I’m not allowed to … sentence for things that are not the subject of the charge although I can … look at the context in which the offending occurred but I’m … troubled. This is not … a case that fits easily into a slot. … That one where the spectre of risk and danger is there and the material is just not sufficient at this stage to allow me to form a comfortable view about it so as to inform where I go between non-parole period and CCO. … And … the weight to give to it in terms of the overall sentencing process.
…
[W]hat I’m worried about is … the behaviour in the period pre-offending and … up to the end of 2014, or up to mid-2014, the money and the photos before there was the falling out, as well as the behaviour from the time of the falling out up to the commencement of the date of the charge. … Because that to me is or has the potential to be highly relevant to an assessment of the objective gravity of the blackmail offending and to the assessment of the prospects for rehabilitation and dangerousness. That’s part of what I was alluding to before when I spoke of belief systems and concern about the belief [systems] because of this bizarre or unusual intensity of feeling expressed by him in relation to a 16/17-year-old girl and one he’d known since she was a baby. … If the photographs and the money thing is part of a belief system that informed the behaviour in a way that’s relevant to an assessment of dangerous[ness] or what may be needed on release into the community to protect against a risk of re-offending with this girl or with others. Then that could be helpful.
…
[A]s you and I know, having seen many cases involving sexual offending involving children or adolescents, that level of horrified denial may well be part of a layer of denial. But it’s actually more the death threats than the risk of acting out a sexual — a contact sexual offence, if I can put it in those terms, that troubles me.[12]

[11]Plea transcript 49.

[12]Plea transcript 51–2, 54, 56.

The prosecutor then made submissions which focused on the seriousness of the offending, and the matters relied on by the appellant in mitigation. He stated that, although the relationship between the appellant and the complainant was inappropriate, the Crown did not allege that the appellant had an intention ‘to facilitate or encourage some form of sexual conduct or sexual activity’ with the complainant.[13]
[13]Plea transcript 61.

After the appellant’s counsel replied to the prosecutor’s submissions, the judge announced that she had decided to seek a report from Forensicare before proceeding to sentence. The judge requested such a report pursuant to s 8A of the Sentencing Act 1991. The judge requested that the report ‘specifically address any psychological condition or personality trait or disorder which sheds light on the offending behaviour, or risk of reoffending [including] the risk of reoffending generally’. The plea hearing was adjourned until 27 October 2016.

In her sentencing remarks, the judge stated the following reasons for not being content with Mr Cummins’s report and seeking a report from Forensicare:

I was concerned about aspects of the history provided to Mr Cummins, about the significance of the history of soliciting the photographs, and their correlation to the assessment of [the appellant’s] future risk to [the complainant] or others. I was concerned about the absence of any dealing with what appeared to be an obsessive and perhaps paranoid set of behaviours in respect of [the complainant]. I was concerned the conflict between the evidence and [the appellant’s] account to Mr Cummins was not addressed.[14]

[14]Sentencing remarks [46].

A Forensicare report dated 7 October 2016 was prepared by Professor Michael Daffern, principal consultant psychologist. Professor Daffern noted that the appellant told him: that prior to his arrest he took photographs on his smartphone of prepubescent girls dressed in swimming bikinis from various websites; that he had never before had any interest in sex with children; that taking the photographs was an ‘escape’ from his problems; that he did not masturbate to those images; that he thought of the complainant as a daughter and did not have any sexual interest in her; that his relationship with the complainant broke down after she established a relationship with her boyfriend and lied to him about her use of money he had given her; that his motivation for encouraging her to send sexualised photographs was to demean her and punish her for deceiving him; that he would like to find a way to say sorry to her; and that he wants her to be honest.

Professor Daffern concluded that the appellant’s relationship with the complainant ‘appears idealised and fantastic’ and ‘appears to have developed at a time when he was seeking close connection with others’. Professor Daffern said it was likely that: the relationship was ‘one-sided’; the appellant was ‘obsessed’; he overvalued the relationship and the ‘exclusivity’ and ‘specialness’ that he desired and felt was not shared by the complainant. Professor Daffern stated it was unclear whether there was ‘any sexual intent’ on the part of the appellant towards the complainant. He added:

The issue of sexual interest in children also requires further exploration. Although [the appellant] said that he did not have a sexual interest in the [complainant] his plea for more sexualized images and his description of some photographs as ‘Hot’ indicates otherwise. He also took photographs of images of pre-pubescent girls from the computer. It is often the case that clients are reluctant to openly disclose their sexual interests pre-sentencing. As such I respectfully recommend he participate in further assessment with SOATS[15] following sentencing with a view to determining his treatment needs. This assessment could occur in custody or the community.

[15]Sex Offender Assessment and Treatment Team.

Professor Daffern administered the Paulhus Deception Scale, a self-report psychological test measuring a person’s tendency to provide an overly favourable description of himself or herself. The appellant had an above average Impression Management score and a slightly above average Self-Deceptive Enhancement score. Professor Daffern concluded that these results suggest that the appellant ‘is somewhat limited in his capacity to reflect upon and accept his shortcomings’, and has ‘a tendency to present an overly favourable impression of himself’.

Professor Daffern said that he did not believe that the appellant suffered from Attention Deficit Hyperactivity Disorder. He said that even if the appellant had previously suffered from such a condition, which was unclear, it would not have impacted his recent substance use problems or offending. Professor Daffern considered that the appellant had been depressed over the last few years, possibly since the death of his grandmother and heightened following the dissolution of his relationship with the complainant. He considered the appellant remained mildly depressed and that his depression likely exaggerated his methamphetamine use and strengthened his desire for close connection with other people, including the complainant.

Professor Daffern said the following about the risk of the appellant reoffending:

Regarding the risk of reoffending (generally) this will greatly depend on [the appellant’s] use of alcohol and his psychosocial functioning once released. In the absence of alcohol use and with support to manage his desire for reunification with the [complainant] ( … at the moment he is not stating a desire to renew contact) the risk would appear relatively low.

When the plea hearing resumed on 27 October 2016, the appellant’s counsel submitted that Professor Daffern’s report seemed to be ‘reasonably congruent with Mr Cummins’ report’.[16] In the context of a discussion about Professor Daffern’s statement that the risk of the appellant reoffending was in part dependent on whether he continued to abuse alcohol upon his release from prison, the judge said ‘I’m much more concerned about risk of a continued obsession with [the complainant] or the developing of an … interest in or relationship with somebody else’.[17] After referring to that part of Professor Daffern’s report where the appellant said that he hoped that the complainant would forgive him one day and that he wanted her to be honest, the judge said:

So it’s still that, she lied to me, she’s got to be accountable. He’s still framing it in terms of she did the wrong thing. It’s that that sort of gives me the concern both for her in terms of an assessment of future risk and that he might develop such an obsessive relationship or interest in somebody else in the future and wondering how I deal with that.
…
But this is one where I do have a concern as to the weight the protection of the community should carry in the sentencing process and why I’m agonising about it and seeking … submissions about it and teasing it out as broadly as I can.
…
They are risks, but they’re risks I can’t put a value on and risks that … to a great extent I can’t sentence for because I’ve got to sentence for what he did and I’ve got to be very careful that I don’t load the sentence because of a fear of future danger that is unable to be quantified.[18]

[16]Plea transcript 78.

[17]Plea transcript 83.

[18]Plea transcript 86–7, 90.

In response to a submission from the appellant’s counsel that Professor Daffern did not identify the kind of matters that the judge said were of concern to her as significant risks, the judge said: ‘Yes, that’s true’.[19]
[19]Plea transcript 91.

The appellant’s counsel submitted that, in accordance with Professor Daffern’s recommendation, the risk of reoffending could be resolved by SOATS treatment. The following exchange then took place between the judge and counsel:

HER HONOUR: [W]hat [Professor Daffern] says too is [eminently] sensible. That is, that it’s often the case that clients are reluctant to openly disclose a sexual interest pre-sentencing and that’s why it could be so helpful. … That is just so sensible and so soundly based on experience and common sense that it means it relieves me from trying to make predictions on imperfect material … and recognises that there may be a better opportunity to address it later and identifies the factors for that. That doesn’t have any adverse impact … on your client. … [W]hat he’s doing is explaining a very understandable and well recognised phenomenon of human behaviour of people who find themselves before court where there is a … spectre if not a reality of sexual abuse of children. Some people who have sexually abused children have such layers of denial of rationalisation or –––
[COUNSEL]: Well it’s a very big leap from what happened in this case to that.
HER HONOUR: Well, exactly, exactly. So whilst I’ve got that strong feeling of [discomfort] that I keep on articulating I don’t have an evidentiary foundation for making a finding adverse to him. … I think, rightly, [the prosecutor] says there’s a concern but there’s not enough evidence. … But there is a concern and I agree with that. I think there’s a concern, that you acknowledge there’s a concern but there’s not enough to turn that concern into a positive finding adverse to his interests.[20]

[20]Plea transcript 98–9.

The prosecutor then said that the Crown adopted Professor Daffern’s report and the conclusion that it was unclear there was any sexual intent, and added that the Crown did not suggest otherwise.

Following the prosecutor’s submission, the judge said that she was not in a position to proceed to sentence on that day and that ‘it’s clear from the questions I’ve been asking from the time I came onto the Bench that I’m still troubled by, and I was still seeking assistance from the submissions and I’ve received assistance but I need to reflect on that’.[21] She also said:

[I]nsofar as conclusions by Cummins or Daffern are based on an account [the appellant] gives after the event that’s at odds with the contemporaneous evidence I’ve got to be very careful about the weight I place on those conclusions.[22]
[21]Plea transcript 100.
[22]Plea transcript 102.

Sentencing remarks

In her sentencing remarks, after setting out the circumstances of the appellant’s offending conduct in relation to the charge of blackmail, the judge referred to the explanations for his behaviour which he gave in the record of interview. She stated that ‘[t]hese explanations are bizarre, contradictory and irrational’ and that the appellant had ‘been soliciting revealing photographs in return for money since [the complainant] was [13 years of age]’.[23] The judge stated that the appellant’s behaviour indicates ‘an awareness of the private and sexual connotation of the photographs, as well as a belief that [the complainant’s] legal status as a child meant it was wrong to solicit revealing photographs of her’.[24] The judge did not accept that the appellant’s change in attitude towards the complainant was precipitated by her relationship with her boyfriend or her use of money he had given her for a different purpose to the one that he had intended.[25]
[23]Sentencing remarks [23].
[24]Sentencing remarks [23].
[25]Sentencing remarks [23]–[24].

The judge then discussed the circumstances of the appellant’s offending relating to the breach of the Personal Safety Intervention Order, and the reports of Dr Riddle, Mr Cummins and Professor Daffern. She stated that the explanations for his offending that the appellant had given to Mr Cummins were inconsistent with the objective timing of events and statements he made in his record of interview. On two occasions,[26] the judge, incorrectly, stated that the appellant had been soliciting sexually suggestive photographs from the complainant in return for money over a five year period.[27]
[26]Sentencing remarks [39], [52].
[27]The period was in fact of the order of three year rather than five years.

In relation to the risk that the appellant might reoffend, the judge said the following:

Of concern in Professor Daffern’s report is the intensity with which [the appellant] appeared still in August 2016 to express [his] distress about the ending of the relationship [with the complainant], that [he] remained concerned that [the complainant] had lied to [him], as well as [his] expressions of desire to make contact with her, and for her to be what [he has] described as honest. Based on that I do not share Mr Cummins’ optimism that [the appellant] present[s] a low risk of reoffending with [the complainant].
…
Both Mr Cummins and Professor Daffern appeared to accept that continued methamphetamine use was not a risk factor, having regard to [the appellant’s] stated intention not to resume methamphetamine use on [his] release. I am not so sure the risk of resumption of methamphetamine use can be so easily discounted.
I remain concerned about [the appellant’s] risk of reoffending so far as [the complainant] is concerned, and of reoffending in like manner should [he] develop an obsessive interest in another child or young woman. The opinions expressed by Mr Cummins and Professor Daffern are limited by the absence of any confirmation for [the appellant’s] self-report, and also by the failure to reconcile [his] account of the cause of the deterioration in the relationship with [the complainant] with the objective evidence of the start of the deterioration, well before her relationship with her boyfriend developed or the use of the money provided somewhere between April and June of 2015 for a purpose apparently other than [the appellant’s] intention.
Save therefore for accepting and endorsing the opinion of Professor Daffern that [the appellant’s] sexual interest in children needs to be further explored, and the bearing of that on the assessment of [his] risk of future offending after [he has] been sentenced, I have real concerns about the extent to which I can act on their opinions. That is particularly so having regard to [the appellant’s] poor scoring on the Paulhus Deception Scale as well as the dissonance between [his] self-report and the timing as shown by the agreed statement of facts and other materials.[28]

[28]Sentencing remarks [56], [58]–[60].

The discussion set out at [47]–[49] above extended over 25 paragraphs in the judge’s sentencing remarks. The judge then devoted 11 paragraphs to other sentencing considerations and the offence of breach of the Personal Safety Intervention Order.

The judge stated that the appellant was entitled to the benefit of his guilty plea, which had utilitarian value. However, she concluded that, notwithstanding the remorse for his behaviour which he had expressed to Mr Cummins, as he still held a strong view that the complainant did the wrong thing by him, his guilty plea provided limited evidence of remorse.[29] The judge stated that her concerns about the appellant’s risk of reoffending were closely tied to his ‘preparedness to let go’.[30]
[29]Sentencing remarks [62].
[30]Sentencing remarks [62].

The judge accepted that, having regard to the appellant’s limited criminal history prior to the commission of the blackmail offence, his offending ‘is clearly out of character with [his] past history’.[31] She added that he was entitled ‘to the benefit of having got to [his] middle years with a relatively minor and unrelated criminal history, and a history of regular employment’.[32] The judge also referred to the support the appellant has from his mother and half-sister and his ability to return to fruitful employment.[33]
[31]Sentencing remarks [63].
[32]Sentencing remarks [64].
[33]Sentencing remarks [64].

The judge described the appellant’s offending as ‘very serious’ and said that denunciation, general deterrence and just punishment loomed large in the sentencing mix. The judge stated that the appellant had subjected the complainant ‘to a terrifying campaign of death threats and personal and sexual denigration’ and had breached her trust as a person he had known since she was a baby.[34] The judge described the appellant’s pursuit of the complainant over the period of two months covered by the blackmail charge as ‘obsessive’ and said that he had ‘made, repeatedly, the most chilling threats to kill her’ and was ‘determined to assert [his] authority over her, and to insist she do as [he] dictated’.[35] The judge said that the appellant had maintained ‘the same angry, abusive, denigrating and hate filled tone in the communications that breached the Personal Safety Intervention Order’ and also ‘maintained it in [his] interviews with Mr Cummins and [Professor] Daffern’.[36]
[34]Sentencing remarks [65].
[35]Sentencing remarks [66].
[36]Sentencing remarks [66].

The judge then said the following:

I consider having regard to the matters that I have identified that weight must also be given to specific deterrence, and that the sentence should be structured so as to encourage [the appellant’s] prospects for rehabilitation. I find it difficult having regard to the concerns raised by Professor Daffern in relation to whether there was a sexual element in this and his inability to make any assessment of [the appellant’s] risk of sexual reoffending with children, and absence of support for so much of [his] self-report to the psychologists whose opinions were placed before me, and on which their assessments of [his] prospects of rehabilitation were based, to make any prediction with confidence as to [his] prospects for rehabilitation. I consider therefore that the sentence should be structured so as to allow an appropriate and hopefully better informed assessment of [his] prospects for rehabilitation during [his] time in custody. That is a better informed assessment of [his] risk of future reoffending generally and in respect of young girls specifically. I have therefore made allowance for a significant period where should the authorities see it appropriate, [the appellant] could be released under supervision on parole therefore allowing for assessment and monitoring not only whilst [he is] in custody but also if seen appropriate on release in the community in order to encourage [his] rehabilitation and to allow [him] to undertake programs directed towards [his] rehabilitation in the community as well as in custody.
Having said that I am conscious as I said in the course of the plea that I am sentencing [the appellant] for the offence of blackmail, not sexual offending against a child nor for possession of child pornography. But the conduct constituting the offence and the background circumstances leading up to it, what [he] said in [his] interview, what [he] said to the psychologists and the conduct and the subsequent breach of [the] Personal Safety Intervention Order are very disturbing and do have those concerns that flavour the characterisation of and the assessment of the gravity of the offence of blackmail.[37]

[37]Sentencing remarks [67]–[68].

The judge then referred to the maximum sentence of 15 years’ imprisonment for blackmail and stated that sentences imposed in other cases involved dissimilar facts and were not of any assistance. She continued:

The factors which, in my view, make this a serious example of blackmail, and warrant a significant sentence include the fact it was a course of conduct spanning 2 months, the youth of the [complainant] and the nature of the past relationship between [the appellant] and her parents, which had placed [him] in the position of trusted adult to this child as well as the significant age differential between [him] and [the complainant]. The chilling nature of the death threats, the repeated attempts to coerce her into doing what [the appellant] wanted by the threats to post the photos [he] had solicited from her to others or to kill her or [himself], the attempts to manipulate and coerce her by contacting others close to her and speaking of her in the insulting and disparaging or threatening way [he] did, as well as [his] continued assertions even after arrest that [he was] justified in what [he was] doing.
This is not only a grave offence of its type therefore, it also follows from that that I do not consider the offending [is] such as to warrant a combination sentence. In my view it is simply too serious, and the maximum term of imprisonment available before release on a [CCO] is simply not enough.
In the circumstances I consider the sentence for breach of the Personal Safety Intervention Order should be served cumulatively upon the blackmail sentence because of the fact that [the appellant] had already been interviewed, told [he] would be charged, released on bail, subjected to a Personal Safety Intervention Order, and had already served a term of imprisonment for breaching it before committing the acts that make up that rolled up charge.[38]
[38]Sentencing remarks [69]–[71].

Grounds of appeal

The appellant’s grounds of appeal are as follows:

1The sentencing discretion miscarried due to the learned sentencing Judge relying impermissibly upon matters external to the charged conduct to inform her sentence including:
(a)The alleged ‘solicitation’ of child pornography by the [appellant] in the years prior to the commission of the offence
(b)Whether the [appellant] had established a pattern of conduct regarding receipt of photographs from the [complainant] in exchange for money in the years prior to the commission of the offence
(c)Whether the [appellant] had an inappropriate or illegal sexual interest in the [complainant] prior to the commission of the offence
(d)Whether the [appellant] had a sexual interest in pre-pubescent children generally
(e)Whether the [appellant] was at risk of sexually offending (or ‘re-offending’) against children.

2The sentencing discretion miscarried due to the emphasis placed upon the matters external to the charged conduct and to the ensuing investigation and analysis of these matters at Plea and in the Reasons for Sentence, which:
(a)overwhelmed and distorted the proper synthesis of sentencing factors; and
(b)resulted in the Judge’s rejection of Exhibits D3, D4 and the Forensicare Report of Professor Daffern dated 7 October [2016].

3The sentencing discretion miscarried due to procedural unfairness in the manner in which the learned sentencing Judge rejected matters relied upon by the [appellant] in Exhibits D3, D4 and the Forensicare Report of Professor Daffern.

4The learned sentencing Judge erred by:
(i)        Imposing sentences on charge 1 and charge 4
(ii)       Making an order for cumulation, and
(iii)      Imposing a non-parole period,
which were, in all the circumstances, manifestly excessive.

Grounds 1, 2 and 3: Extraneous considerations and procedural fairness
Parties’ submissions

In relation to Ground 1, the appellant submitted that a considerable period of the plea hearing was ‘consumed with a persistent enquiry into matters extraneous to the charged conduct’. According to the appellant, those matters were the subject of a considerable portion of the sentencing remarks and the overwhelming inference is that they ‘impermissibly’ crept into the sentencing exercise. Those matters were said to include, in particular:

(a)whether there was a sexual connotation to the appellant’s pre-offence conduct;
(b)whether the appellant was at risk of offending against children;
(c)whether the appellant had been consistent in accounts provided as to the reasons for the deterioration of his attitude toward the complainant over 2014 and 2015; and
(d)whether the appellant had been consistent in his characterisation of his relationship with the complainant in the various accounts he gave to police and to the three psychologists.

The appellant accepted that the background to the relationship between the complainant and himself was relevant to an assessment of his criminality encompassed by the charge. Similarly, the appellant conceded that it was relevant for the judge to gain an understanding of how he came to be in possession of the photographs of the complainant. However, according to the appellant, the inquiry conducted by the judge went beyond relevant matters and became an investigation of past conduct of a prejudicial nature that did not have a direct connection to the charge.

The appellant submitted as follows:

By the time the learned sentencing Judge came to sentence, the issue of whether there was some underlying sexual misconduct attached to the disputed history regarding photographs had taken on a life of its own. The issue had been elevated beyond mere context helping to explain the relationship between [the appellant] and [the complainant], thus shedding some light on the [appellant’s] charged conduct and criminality, to an essential clue as to whether he was at risk of sexual offending against children in the future.
The sentencing remarks reveal that these extraneous and irrelevant issues had crept into the sentencing exercise.
…
The conduct … which was the subject of a considerable portion of the sentencing remarks lay well outside the charge period. … The overwhelming inference, given the time devoted to the ‘solicitation of photographs’ on the Plea and in the Reasons for Sentence, is that those matters crept into the sentencing exercise impermissibly.

In relation to the disclosure noted in the Forensicare report about the possession of photographs of prepubescent girls, the appellant submitted that those photographs should have played ‘no role whatsoever’ in the exercise of the sentencing discretion.

In relation to Ground 2, the appellant submitted that the judge adopted an inquisitorial approach to the questions of the appellant’s motivation for offending and future risk of offending which led to a ‘lop-sided focus’ and ultimately a miscarriage of the sentencing discretion.[39]
[39]The appellant relied on Wakim v The Queen [2016] VSCA 301 and Beevers v The Queen [2016] VSCA 271.

According to the appellant, the reports from Dr Riddle and Mr Cummins were not inconsistent, and dealt adequately with the issues raised by counsel for the appellant on the plea in his submissions. Further, so it was said, the Forensicare report was ‘essentially consistent’ with the earlier reports. However, the appellant submitted that both at the plea and in the sentencing remarks, the judge engaged in a ‘detailed and at times tortuous analysis’ of the discrepancies between the appellant’s record of interview — which the appellant said was potentially unreliable due to continued methamphetamine use — and the psychologists’ reports, in order to undermine the reliability of the latter.

The appellant submitted that a result of this process was that the judge rejected almost the entirety of the professional opinions expressed in the three psychological reports, on topics such as risk assessment and prospects of rehabilitation, the connection between methamphetamine abuse and the offending, and a past history of depression. The appellant contended that this approach was unwarranted, deprived him of the benefit of relying on some findings of the psychologists in mitigation, and distorted the proper synthesis of sentencing factors. According to the appellant, the effect on the sentencing exercise of ‘such an exhaustive excavation’ of the factual basis of the reports and submissions on the plea, was to ‘overshadow and overwhelm any proper analysis of other sentencing factors.’ In particular, the appellant submitted that the material relating to matters of personal mitigation ‘lost their proper place in the sentencing process’.

The appellant submitted that the sentencing discretion miscarried because the process: created an imbalance and distortion in the synthesis of sentencing considerations; amplified sentencing considerations relating to the protection of the community and diminished matters of personal mitigation; and resulted in procedural unfairness by reason of the rejection of mitigatory matters in the three psychological reports without proper notice or via an unfair process.

The procedural unfairness argument reflected in Ground 3 was put as an alternative to Ground 2.

The appellant submitted that the exhaustive process of analysis undertaken by the judge led to an undermining of the use he sought to make of the psychological reports. According to the appellant, the process was unfair principally because of the judge’s: use of selected parts of the appellant’s ‘rambling’ record of interview as a means of contradicting the history given to the psychologists; criticism of the lack of a detailed history in the ‘brief’ report of Dr Riddle; and cross references to, and comparisons of, the history given to each psychologist where no meaningful discrepancies existed.

The appellant submitted that this process led to a rejection of matters in the reports, including the Forensicare report, upon which he sought to rely. Further, the appellant submitted that his counsel on the plea was not given adequate notice of the judge’s intention to reject significant aspects of the Forensicare report, nor did he have an adequate opportunity to address the court otherwise.[40]
[40]The appellant relied on Beevers v The Queen [2016] VSCA 271 in support of this submission.

In relation to Ground 1, the Crown submitted that when read as a whole, it can be seen from the sentencing remarks that the judge did not rely impermissibly upon matters external to the charged conduct to inform the exercise of her sentencing discretion. According to the Crown, the judge made it clear that she was sentencing the appellant for the offence of blackmail, not sexual offending against a child or possession of child pornography. The Crown submitted that the background circumstances leading up to the offending were nonetheless relevant.

According to the Crown, that the photographs of the complainant had a tendency to sexualise her was obvious from the photographs themselves. It was said to be clear from the sequence of events that the sexualising of the complainant escalated gradually over time and continued for a number of years. In circumstances where it was plain that the appellant had sent sums of money totalling around $10,000 to the complainant over the same approximate period of time, the Crown submitted that it was open to the judge to infer that there was some correlation between the sexualised images being sent and the receipt of money from the appellant. The Crown noted, however, that the judge was not drawing an inference adverse to the appellant’s interests.

The Crown submitted that there is nothing in the sentencing remarks to suggest that Professor Daffern’s recommendation that the appellant participate in a SOATS assessment played any part in the sentencing synthesis beyond an entirely appropriate allowance of a significant period of parole supervision.

The Crown contended that the judge did not reach any conclusion regarding the appellant’s risk of reoffending against the complainant or others, and that it was clearly appropriate for her to give some weight to specific deterrence. Moreover, according to the Crown, in referring to the considerations that affected her assessment of the gravity of the blackmail offence, the judge made no reference to the solicitation by the appellant of sexualised photographs of the complainant.

In relation to Ground 2, the Crown submitted that the judge was not compelled to accept the explanation or motive for the offending proffered by the appellant’s counsel from the Bar table, without proper evidence.[41] According to the Crown, the judge did not make any adverse finding in relation to the appellant’s motive, she simply rejected the defence explanation for the crime. The Crown submitted that this conclusion was open in all the circumstances.
[41]The Crown relied on Kieawkaew & Nguyen v The Queen [2016] VSCA 269 [79]–[80].

The Crown also submitted that the judge was not bound uncritically to accept the contents of the psychological reports. The Crown contended that the opinions expressed in the reports were largely based on the appellant’s self-report. As such, it was said that the judge was entitled to conduct a detailed and logical analysis of the reports, and the record of interview, with a view to determining whether the appellant was a reliable source of information, and thereby determining the extent to which she could rely on the conclusions and opinions contained in the reports. The Crown submitted that, as the judge demonstrated, the appellant was not a reliable historian and this conclusion affected the weight the judge could properly give to the psychological reports.

The Crown further submitted that the judge did give significant mitigating weight to matters personal to the appellant. It was said that, while the judge gave some weight to specific deterrence, given she could make no finding regarding the appellant’s risk of reoffending, she appeared to have given no weight to protection of the community.

In relation to Ground 3, the Crown submitted that there has been no denial of procedural fairness. According to the Crown, it is clear from the course of the plea hearings that the judge voiced her concerns regarding many aspects of the plea and that the appellant’s counsel was given every reasonable opportunity to address them.

The Crown submitted that Beevers v The Queen[42] was distinguishable because in that case, at the plea hearing, the sentencing judge appeared to have accepted that the offender had been the victim of childhood sexual abuse, but in sentencing the offender, the judge rejected that claim, without notice.
[42][2016] VSCA 271 [39].

Decision

It must be said that the unusual and bizarre nature of this case made the judge’s sentencing task very difficult. This Court was greatly assisted by the careful and comprehensive submissions of counsel for both parties.

In relation to the blackmail charge, the appellant fell to be sentenced for his conduct in August and September 2015 that was described in the Prosecution Opening under the heading ‘Offending’, and summarised under the heading ‘Overview’. The material in the Prosecution Opening under the heading ‘Background’ did not form part of the offending conduct but, as the heading implies, the material was relevant to the exercise of the sentencing discretion in that it provided context for the offending conduct. That context included the nature and duration of the appellant’s relationship with the complainant, changes in that relationship over time and the circumstances in which the appellant came to possess revealing photographs of the complainant.

The material was also relevant to an understanding of the nature and gravity of the appellant’s offending conduct, such as the breach by the appellant of the trust of a child he had known since she was a baby and in respect of whom he initially had a relationship that was akin to that of father and daughter.

The summaries and extracts from the appellant’s record of interview that were included in the Prosecution Opening were also relevant to the exercise of the sentencing discretion insofar as they provided similar context, any admissions and any material relevant to sentencing considerations such as remorse and prospects of rehabilitation. All the exhibits that were tendered on the plea and the Forensicare report were obviously relevant.

The judge was not entitled to rely on any other material in any manner that was adverse to the appellant. Further, the judge was not entitled to draw any adverse inferences from the admissible material that was contrary to the agreed position of the parties (as reflected in the Prosecution Opening) without giving notice of her intention to do so and affording the appellant an opportunity to adduce evidence and make submissions against the drawing of such inferences.

Accordingly:

(a)As the prosecution specifically disavowed any suggestion that the appellant had a sexual interest in the complainant, or any other child, it was inappropriate for the judge to have focused to the degree that she did in her sentencing remarks upon the sexual nature of his dealings with the complainant.
(b)The appellant’s statement to Professor Daffern that he had downloaded photographs of prepubescent girls in bikinis was not relevant, in any adverse sense, to the exercise of the sentencing discretion.
(c)As there was no evidence before the judge that there was a risk that the appellant might commit any sexual offences against children, she was not entitled to sentence him on the basis that such a risk existed.

In our opinion, the judge’s sentencing discretion miscarried because there are strong indications in the plea transcript and her sentencing remarks that she strayed beyond the permissible parameters discussed above in sentencing the appellant.

The plea transcript indicates that, as soon as the appellant’s counsel commenced making oral submissions about mitigatory factors, the judge focused the discussion on the inappropriateness of the appellant’s relationship with the complainant — particularly the receipt of revealing photographs in exchange for money — and whether the appellant had a sexual motivation. The judge maintained the focus on these issues for a period that was disproportionate to the time devoted to matters that were of direct relevance on the plea. It is clear that the judge regarded these issues as highly significant to the exercise of the sentencing discretion because she stated that ‘the nature of the offence masks what is … the real concern to [her] about the [appellant’s] behaviour’.[43]
[43]See [33] above.

Although both during the plea and in her sentencing remarks the judge stated that the appellant fell to be sentenced only on the basis of his offending conduct, the sentencing remarks indicate that she took into account extraneous considerations, and relied on matters that were not supported by the evidence. We have reached this conclusion on the basis of the following:

(a)A disproportionate part of the judge’s sentencing remarks is devoted to discussing her concern about the inappropriateness of the appellant’s relationship with the complainant, particularly the receipt of photographs with a ‘sexual connotation’ in exchange for money.[44]
(b)Notwithstanding that Professor Daffern stated in the Forensicare report that the appellant ‘is not stating a desire to renew contact’ with the complainant, the judge stated, on the basis of that report, that she was concerned about ‘[his] expressions of desire to make contact with [the complainant]’.[45]
(c)On the first day of the plea hearing, there was no evidence that there was any risk that the appellant would reoffend against the complainant or any other person. The judge requested the Forensicare report in order to obtain an assessment of such a risk. That report concluded that the risk that the appellant would reoffend against the complainant was ‘relatively low’.[46] Notwithstanding this, the judge stated that she remained ‘concerned about [the appellant’s] risk of reoffending so far as [the complainant] is concerned, and of reoffending in like manner should [he] develop an obsessive interest in another child or young woman’.[47] The risk of the appellant committing an offence against another child was purely hypothetical. There was evidence that the appellant had had contact with the complainant’s friend, AA, and his half-sister’s children without any indication of there being any risk of offending conduct towards them. The judge failed to refer to this evidence and to the appellant’s letter in which he indicated that he would not reoffend. The judge also failed to take into account the unique features of his relationship with the complainant — he knew her since she was a baby because she was the daughter of his then best friend — and the prospect of those features being replicated in relation to any other child.
(d)At para 67 of her sentencing remarks, the judge stated ‘I consider having regard to the matters that I have identified that weight must also be given to specific deterrence’.[48] Read in context, the matters upon which the judge relied included the concerns that she previously expressed in her sentencing remarks about the inappropriate nature of the relationship between the appellant.
(e)Despite the evidence that there was no more than a ‘relatively low’ risk of the appellant reoffending against the complainant, the fact that the judge singled out specific deterrence as an important sentencing consideration[49] indicates that she regarded the risk as more than ‘relatively low’. This indication is supported by the judge’s statement that she did not ‘share Mr Cummins’ optimism that [the appellant presents] a low risk of reoffending with [the complainant]’.[50]
(f)At para 67 of her sentencing remarks, the judge referred to ‘the concerns raised by Professor Daffern in relation to whether there was a sexual element’ in the appellant’s conduct with the complainant and Professor Daffern’s ‘inability to make any assessment of [the appellant’s] risk of sexual reoffending with children’. She also referred to ‘a better informed assessment’ being undertaken post-sentence of the appellant’s ‘risk of future reoffending generally and in respect of young girls specifically’.[51] However, Professor Daffern stated that it was unclear whether there was ‘any sexual intent’ and did not state an opinion that there was a risk that the appellant would offend against children. He simply said that clients are reluctant to openly disclose their sexual interests pre-sentencing and recommended that the appellant be assessed by SOATS. These concerns were so removed from the offending conduct with which the appellant was charged and were so devoid of any proper evidentiary basis, that it was impermissible for the judge to take them into account in sentencing him.
(g)At paras 67 and 68 of her sentencing remarks, the judge made observations which indicate that she treated matters extraneous to the offending conduct as aggravating circumstances. Read in the context of the judge’s previous reference to ‘child pornography’ and her reference to what the appellant told the psychologists, it is clear from those observations that the judge took into account the information that the appellant volunteered to Professor Daffern that he had downloaded photographs of prepubescent girls wearing bikinis. The observations in question are as follows:
But the conduct constituting the offence and the background circumstances leading up to it, what [he] said in [his] interview, what [he] said to the psychologists and the conduct and the subsequent breach of [the] Personal Safety Intervention Order are very disturbing and do have those concerns that flavour the characterisation of and the assessment of the gravity of the offence of blackmail.[52]

[44]See [47] above.

[45]See [49] above.

[46]See [41] above.

[47]See [49] above.

[48]See [54] above.

[49]See [54] above.

[50]Sentencing remarks [56]. See [49] above.

[51]See [54] above.

[52]Sentencing remarks [68]. See [54] above.

It follows from the above that Ground 1 is made out.

In relation to Ground 2, in our opinion, the judge’s undue focus on matters extraneous to the proper exercise of her sentencing discretion resulted in that discretion miscarrying.

The judge was entitled to have reservations about the reliability of the appellant as a historian and to treat with caution any opinions expressed by the three psychologists which were dependent on the accuracy of his statements to them. As is apparent from [46] above, during the plea, the judge put the parties on notice that she would be very careful about the weight she placed on any conclusions by Mr Cummins or Professor Daffern insofar as they were based on statements made to them by the appellant which were at odds with the contemporaneous evidence.

However, the judge erred in the approach she adopted to the Forensicare report. That report was requested by her because of the absence of evidence about the appellant’s risk of reoffending, which the judge said during the plea would inform the choice between a sentence of imprisonment combined with a CCO, and a head sentence with a non-parole period. The only positive opinion in the Forensicare report about the risk of the appellant reoffending is that the risk will greatly depend on his use of alcohol and management of ‘his desire for reunification with the [complainant]’ and that, as the appellant did not state a desire to renew contact with her, the risk ‘would appear relatively low’. The prosecutor informed the judge that the Crown adopted the Forensicare report. In these circumstances, it was not open to the judge to sentence the appellant on the basis that there was more than a ‘relatively low’ risk of reoffending. Yet, as discussed at [85(e)] above, the fact that the judge singled out specific deterrence as an important sentencing consideration must have been based on an assessment that the risk of reoffending was not ‘relatively low’.

It follows that Ground 2 is made out. As Ground 3 is an alternative to Ground 2, it is not necessary for us to consider it.

Ground 4: Manifest excess
Parties’ submissions

The appellant conceded that the particulars of the blackmail offence were very grave and disturbing and that his justification for the offending was ‘baffling, skewed and irrational’. The appellant also accepted that the complainant was subjected to a terrifying and sustained ordeal and that her age and relationship to the appellant were aggravating factors.

The appellant submitted that this was an unusual case of blackmail insofar as the major contributors to the overall criminality were the menaces rather than the demand.

The appellant submitted that notwithstanding the seriousness of the offence, a sentence of one third of the maximum available was unreasonable in the following circumstances:

(a)       The appellant had pleaded guilty at the earliest opportunity.
(b)      The appellant made full admissions.
(c)       The appellant had a limited and irrelevant criminal history at age 42.
(d)The appellant had an excellent work history and had strong future employment prospects.
(e)A number of testimonials spoke to the appellant’s previous good character and remorse.
(f)The offending was out of character and occurred in the context of methamphetamine abuse.
(g)The appellant’s prospects of rehabilitating from drug abuse were supported by evidence.

(h) The appellant had the ongoing support of his mother and half-sister.
(i)The appellant’s conduct in custody had been exemplary. He had completed a number of courses and was a trusted billet within the prison.

In relation to summary charge 4, breach of the Personal Safety Intervention Order, the appellant submitted that the imposition of a six month sentence — which was one quarter of the maximum available — in circumstances where he pleaded guilty and had previous good character to call upon was excessive. The appellant contended that ordering cumulation of the entirety of this sentence upon the sentence imposed on charge 1 was excessive in all of the circumstances, particularly because it formed part of a continuing course of conduct which included the blackmail offence. According to the appellant, some concurrency was required to reflect the relationship between this offence and the blackmail offence and to avoid double punishment.

The Crown conceded that the sentence of five years’ imprisonment for the blackmail offence could be described as ‘solid’ or ‘stern’. However, the Crown submitted that the sentence was not wholly outside the range of sentences available to the judge for such serious offending. The Crown contended that none of the sentences, the order for cumulation, the total effective sentence, or the non-parole period, could be described as so far beyond the bounds of reasonable discretionary judgment as to bespeak error as required for a ground of appeal alleging manifest excess to succeed.[53]
[53]The Crown referred to McPhee v The Queen [2014] VSCA 156 [8].

The Crown submitted that as there are no comparable cases or helpful sentencing statistics, the only guidance as to sentencing range available to the judge was the maximum penalty of 15 years’ imprisonment for the offence of blackmail. Accordingly, the Crown submitted that when balanced with all the relevant factors and measured against that yardstick, a sentence which represents only 33 per cent of the maximum penalty was within the range for a very grave and disturbing example of the offence.

The Crown submitted that summary charge 4 was objectively a very serious example of the offence of breaching a Personal Safety Intervention Order, which carries a maximum penalty of two years’ imprisonment. According to the Crown, given the objective gravity of the offending conduct encompassed within the rolled up charge which involved three breaches, and the circumstances and chronology in which the incidents were committed, a sentence of six months’ imprisonment was a very moderate sentence.

The Crown also relied on the fact that the appellant was on bail when he breached the Personal Safety Intervention Order and that, prior to that breach, he had been convicted and sentenced to seven days’ imprisonment for breaching an earlier Personal Safety Intervention Order.[54]
[54]See [16] above.

The Crown further submitted that the judge’s discretion to not order any concurrency between charge 1 and summary charge 4 did not miscarry. This was said to be because there was no overlap between the two charges and all of the conduct encompassed within summary charge 4 post-dated the conduct encompassed within charge 1. According to the Crown, given the objective gravity of the two offences, and the very moderate sentence imposed on summary charge 4, the totality principle was not infringed.

The Crown submitted that the total effective sentence was within the range of sound discretionary judgment and the non-parole period was unremarkable, particularly given the judge could make no satisfactory finding regarding the appellant’s prospects for rehabilitation.

Decision

There can be no doubt that, for the reasons given by the judge,[55] and further articulated in the Crown’s submissions on the appeal, this was a serious example of the offence of blackmail. The offending extended over a period of two months and involved chilling threats to kill that were made not only to the complainant but also to her friends and members of her family. To underline the seriousness of the threats, the appellant included graphic images of guns and bullets and ‘an unknown face that had been shot’. The complainant was so concerned about her safety that she decided to move house. The threats also caused distress to the other individuals to whom they were addressed. In that sense there was more than one victim of the offending.
[55]See [55] above.

The offending not only involved demands for the payment of money, but also threats to humiliate and embarrass the complainant by posting on social media the revealing photographs she had sent to the appellant. The offending represented a serious breach of trust by the appellant towards a young woman whom he had known since she was a baby and with whom he initially had a relationship akin to that of father and daughter.

The offending was neither spontaneous nor isolated. It was carefully planned and involved various means of communication, including the telephone and social media such as Facebook and Instagram, as well as the creation of customised frightening images. Indeed, the appellant used various fake accounts to overcome the blocking of his normal accounts. The offending continued for a period of two months. Its frequency and persistence was such as to terrorise the complainant.

As against the seriousness of the offending, the appellant was able to call upon significant mitigating circumstances. They were summarised in the appellant’s written submissions on the plea (see [28] above) and on the appeal (see [93] above). The most significant mitigating circumstances were: his early plea of guilty; his limited criminal history prior to the commission of the blackmail offence; his stable work history and ability to resume working upon his release from prison; the support of his mother and half-sister and the latter’s offer for him to live with her family upon his release; his abstinence from drugs while in prison; and the position of trust that he held as a billet while in prison.

When the seriousness of the offending is considered in the context of these mitigating circumstances, the sentence of five years immediately strikes one as so punitive that the sentencing discretion must have miscarried. Indeed, a fair reading of the judge’s sentencing remarks indicates that she unduly focused on the extraneous matters we have discussed under Grounds 1–3 and gave inadequate weight to the mitigating circumstances.

The judge proceeded on the basis that the sentences imposed in other cases of blackmail were unhelpful because the facts of the present case were unique. We agree that the present case has features which are not present in other cases. However, although all cases are unique and only limited assistance can be obtained from the sentences in other cases, regard must be had to current sentencing practices.[56]
[56]Sentencing Act 1991 s 5(2)(b).

The case of Director of Public Prosecutions v Oksuz[57] is instructive. The offending conduct in that case — to which the offender pleaded guilty — was described as follows:

Between mid-October and late-November 2012, the respondent and Mr Demirbas, demanded recovery of an alleged debt for $7,000 by threatening Frank Fusca. The debt was allegedly owed by Frank’s son, Patrick Fusca. Patrick had been incarcerated for unrelated matters on 7 October 2012.
Approximately one week after Patrick was incarcerated, the respondent and Mr Demirbas attended Frank’s house — which was a corner property — to speak with Frank and his brother, Dominic Fusca. They demanded that Frank pay them the alleged debt which they said was owed because they had been supplying drugs to Patrick. They stated to Frank that, because Patrick was in prison, Frank would have to pay the debt. The respondent stated that he ‘knew people inside’ and threatened to have Patrick stabbed in prison if the debt was not paid. He then produced a handgun and displayed it to Frank and Dominic in a threatening manner. Frank and Dominic told the respondent that they would ‘try and get some money together’.
A few days later, the respondent and Mr Demirbas had another meeting with Frank and Dominic at Frank’s house. During this meeting, Frank explained that he would not be able to pay them any money. Dominic said he could give then $700 immediately, however, both the respondent and Mr Demirbas demanded full payment of the debt. Dominic believed that the respondent was carrying a firearm in his pocket during this meeting.

Further demands for payment of the debt by phone calls and text messages were made in the following weeks. On one occasion, the respondent telephoned Frank and threatened that Patrick was going to ‘cop’ it in prison if the debt was not paid. On another occasion, Mr Demirbas telephoned Frank and threatened that he was going to ‘bash his head in’ due to the unpaid debt.
Due to these threats, Dominic arranged for Kalston Randall to move in with Frank in order to provide some protection.[58]

[57](2015) 47 VR 731 (‘Oksuz’).

[58]Oksuz (2015) 47 VR 731, 741 [29]–[33].

The offender in that case was sentenced to two years and six months’ imprisonment for the blackmail offence. This Court rejected a submission by the Director of Public Prosecutions that the sentence was manifestly inadequate.

As in the present case, the offending in Oksuz occurred over a prolonged period, had more than one victim and was ‘a very serious example of the offence of blackmail.’[59] While Oksuz does not have some of the features of the present case — such as the age of the complainant and her relationship with the appellant which gave rise to a breach of trust — there were a number of aggravating features in Oksuz that are absent from the present case. Those features include the production of a gun in a meeting with the victims and the fact that the offence was committed a few weeks after the offender was released on parole and while he was on bail.[60]
[59]Oksuz (2015) 47 VR 731, 757 [112].
[60]Oksuz (2015) 47 VR 731, 758 [115].

The earlier case of Mantovani v The Queen[61] involved two sentences of two years and one sentence of three years for three offences of blackmail involving threats of violence if demands for the payment of significant sums of money were not met. This Court rejected a submission from the offender — who had pleaded guilty — that the sentence of 3 years was manifestly excessive. That sentence was described as ‘moderate’.[62]
[61][2012] VSCA 225 (‘Mantovani’).
[62]Mantovani [2012] VSCA 225 [39]. See also the related case of Latorre v The Queen (2012) 226 A Crim R 319, 326 [31], 347–8 [164]–[172] which involved a sentence of four years’ imprisonment for a blackmail offence involving extortion.

Although Oksuz and Mantovani are not directly comparable to the present case, nevertheless the sentences in those cases provide some guidance as to current sentencing practices in Victoria in relation to the offence of blackmail.[63] Those cases support the conclusion we have reached, independently of them, that the sentence of five years for the blackmail offence in the present case is manifestly excessive.
[63]See also Adamson v The Queen (2015) 47 VR 268, 273 [4], [8], which involved sentences of three years’ imprisonment for each of three blackmail charges.

In our opinion, the sentence of six months’ imprisonment for the rolled up charge of breach of the Personal Safety Intervention Order is not manifestly excessive. The offending conduct involved two improper communications on 15 February 2016 and a third improper communication on 13 March 2016. The offending took place while the appellant was on bail for the blackmail offence. It is also of significance that prior to the offending the appellant had breached an earlier Personal Safety Intervention Order and had served a sentence of seven days’ imprisonment for that breach. It follows that specific deterrence was a significant sentencing consideration.

We reject the appellant’s submission that summary charge 4 formed part of a continual course of conduct which included the blackmail offence and that some concurrency was required to avoid double punishment. The offending which was the subject of the blackmail charge concluded on 30 September 2015, more than four months before the offending which was the subject of summary charge 4 commenced.

Further, we are of the view that, in the light of the above matters, the judge was justified in directing that the sentence for the breach of the Personal Safety Intervention Order be served in its entirety without any concurrency.

Resentencing

Our conclusions that the sentencing discretion has been vitiated by specific error and that the sentence for the blackmail offence is manifestly excessive mean that the sentencing discretion is re-opened.

In the light of the matters to which we have referred, the appellant will be resentenced in accordance with the following table:

Charge

Offence

Maximum

Sentence

Cumulation

1

Blackmail

15 years

3 years and 6 months

Base

Uplifted summary

charge 4

Breach Personal Safety Intervention Order

2 years

6 months

6 months

Uplifted summary charge 6

Possess cartridge ammunition

40 penalty units

$500 fine

Total Effective Sentence: 4 years’ imprisonment

Non-Parole Period: 2 years and 9 months’ imprisonment

Pursuant to s 6AAA of the Sentencing Act 1991, a declaration will be made that, but for the appellant’s plea of guilty, we would have sentenced him to a total effective sentence of six years’ imprisonment with a non-parole period of four years.

Charge	Offence	Maximum	Sentence	Cumulation
1	Blackmail [s 87 Crimes Act 1958]	15 years	5 years	Base
Uplifted summary charge 4	Breach Personal Safety Intervention Order [s 100 Personal Safety Intervention Orders Act 2010]	2 years	6 months	6 months
Uplifted summary charge 6	Possess cartridge ammunition [s 124 Firearms Act 1996]	40 penalty units	$500 fine
Total Effective Sentence:		5 years and 6 months’ imprisonment
Non-Parole Period:		3 years and 6 months’ imprisonment
Pre-sentence detention declaration:		231 days
Section 6AAA statement: Total effective sentence of 8 years’ imprisonment with a non-parole period of 5 years and 6 months.

[2017] VSCA 103

8 MAY 2017