Director of Public Prosecutions v Aitken
[2016] VCC 1653
•3 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-00898
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARREN AITKEN |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 August 2016 and 27 October 2016 | |
DATE OF SENTENCE: | 3 November 2016 | |
CASE MAY BE CITED AS: | DPP v Aitken | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1653 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Fitzpatrick | |
| For the Accused | Mr J. McLoughlin |
HER HONOUR:
1 Darren Aitken you have pleaded guilty to one charge of blackmail. Blackmail is a charge infrequently prosecuted, and the circumstances of this case are most unusual.
2 You developed a close friendship with the victim’s father 20 years ago, and have known the victim, Ashley[1] since her birth. At the time of the offending, she was 17, and you were 47.
[1]Pseudonym
3 From her earliest years, you were, apparently, devoted to her. You called her your princess. Her parents happily included you in their family life. You spent a lot of time with them, and with Ashley. Although you had a biological daughter, who perhaps not coincidentally, had the same first name, you had had no contact with your own daughter since you had separated from her mother when she was a baby. Your daughter was born about 8 years before Ashley. You told police, and the psychologists who initially treated or assessed you for the purposes of the plea you have had no significant or long term relationships yourself, preferring as you have described it, a life centring around work, football and partying.
4 You had often bought gifts for Ashley when she was a young child, and from the time Ashley got her first mobile phone, when she was 12, you began giving her money to buy credit for it. Initially you did not ask for anything in return, but by the time she was 13 or 14, in response to your requests, she began to send you photographs of herself. They were ordinary shots, where she was fully dressed. Within months, you told her to send “better” photos. She interpreted that, correctly, as a request to send more revealing photos. Thereafter, most photos were of her in a bikini, a bra without her shirt, or what was described as “very short mini-shorts”. The agreed summary states the photos became more revealing over time, although there was never any nudity.
5 By late 2014, when Ashley was 16, you had established a pattern. There was a direct correlation between the sending of photos by Ashley and the transfer of funds to her bank account by you. She estimates she was sending 4 photos a week, and that she received about $10,000. You told one of the psychologists who assessed you that you sent her between $10,000 and $20,000.
6 Also in late 2014, you made contact through Facebook with another 16 year old girl, Vanessa[2], who went to the same school as Ashley, but who was not a friend of hers. It would appear that at least from Vanessa’s perspective, there was dislike, if not enmity between the two of them. You spoke disparagingly to Vanessa of Ashley, and used her to get information about Ashley. On more than one occasion, you told Vanessa of your hatred of Ashley, and how you could kill her.
[2] Pseudonym
7 In early 2015, Ashley commenced a relationship with a 19 year old boy, Jackson[3]. She continued to send you photos, and you continued to send her money until April of that year. Apart from the photos, you remained in contact with her, and her family through phone calls and social media, particularly Facebook and Instagram.
[3] Pseudonym
8 Although you professed still to regard Ashley as your little princess, you were also highly critical of her, and at times angry with her. It is clear you were angry and jealous about her relationship with her boyfriend.
9 Somewhere between March and May 2015, you sent her a photo of your hand, holding two bullets, with the message “friends to the end”. By then, although she and her family remained living in Queensland, you had moved to Victoria, and had stopped working. It would appear you had moved to Victoria some time in 2013 or 2014.
10 In June or July of 2015, you sent Ashley some money, $270, on the understanding she wanted to use it to get her phone fixed, and do a course. In the same time period, you rang her to say you were at Brisbane airport, and coming to stay with her. That is, you rang her, unannounced, to say that you were at Brisbane airport and were coming to stay with her. She told you that you could not come and stay, and you became angry. You threatened to post the photos she had sent you on social media. Your telephone calls to her became so frequent, and unwelcome, that by July Ashley had changed her phone number.
11 Between August and September 2015, you made repeated demands, accompanied by threats to Ashley, Jackson, Jackson’s mother and sister, and Ashley’s father and new partner. You demanded she repay you $310, and call you to discuss what you described as the end of your relationship. You used email, Facebook and Instagram accounts, in your own name, and from fake accounts you set up. Many of the threats you made were to kill Ashley, or yourself, or both of you, if she did not accede to your demands to discuss what you characterised as the end of your relationship, to apologise to you for what you said was a breaking of trust, and to repay $310 that you said you had previously given her, and which you were now demanding be repaid. These demands were interspersed with threats to publish the photos of her that she had sent you over the previous years on social media.
12 The threats included these messages. A demand to pay back the money followed by, "if not well the saga will continue and believe me I won't stop and won't be seeing my nieces and nephews again ever. All up to Ashley. You have 24 hours to get back to me.” “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 until after your wedding.” “Make sure you enjoy seeing the ungrateful cunt in a few weeks 'cause she has less than 1196 days left. P.s. tell your mate I finished engraving her farewell present." Accompanying that last message was an image of a hand holding a bullet. "I'm not going to wait, 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 fucking start big time and fucking destroy her life, more if she doesn't make some form of contact soon in regards to money. I'm well and truly ready for the consequences, don't give two fucks as long as that cunt gets what she deserves, giving her way too much time. $300 she owes, should be more like 3,000. If she keeps going much longer that's what it will be. How pathetic for someone to value their life at $300."
13 You rang Ashley at work at least once a shift during this period saying, "Bang" or, "Dead" when she identified herself.
14 You posted some chilling images on your Instagram account. Including a collage of two pictures, one with a photo of Ashley, the other a photo of a gun firing towards her. And underneath the caption, "The walking dead."
15 By mid September, your threats and demands had so frightened Ashley that she was in the process of moving house so you could not find her.
16 On 22 September you boarded a train from Melbourne to Brisbane, telling your mother and sister in Victoria that you intended to confront Ashley. Your sister was so concerned about your behaviour that she telephoned the Queensland police to advise you had made numerous threats to kill Ashley, and were on the way to Queensland. As it happened, the Sydney/Brisbane leg of the journey was cancelled, and you returned to Melbourne without proceeding to Brisbane.
17 On 30 September, you posted some images that Ashley had earlier sent you on Instagram. You called for people who hated Ashley as much as you did to contact you, and offered to send them revealing photographs of her. Accompanying the images of Ashley and the call for the haters to contact you was a chilling triptych: a silhouette of a man shooting a woman’s head, a face shot of Ashley and an image of the face of a person who had been shot. You wrote across it “That’s what is going to happen I tried warning ALL OF YOU, but nobody cared…All [Ashley] had to do was say goodbye and pay back $$$...too late NOW”
18 You were arrested 2 days later. You participated in a long interview with the police. You said initially she had been your princess, you had spoiled her as a princess, you thought of her, and looked after her as a daughter, that when she got a boyfriend you couldn’t let go and that you loved her more than anyone in the world.
19 So far as the change in your feelings towards her, and the nature of your relationship with Ashley was concerned, initially you said to the police that you had been on a hate campaign against her since June 2015, when her boyfriend had accused you of being a paedophile, and because she had not said goodbye to you. Later you said you had been fighting with Ashley since late 2014, and described her as a money hungry little bitch, and slut, who you wanted to shame, or punish, by demanding revealing photos in exchange for money. Later you blamed her boyfriend, saying he was controlling Ashley, and that but for him, she would do as you asked, namely apologise, and repay the money. You told police you had contacted the authorities in the town in Queensland in which she lived in an attempt to communicate with her, and later in the interview you asked the police to call her, and put you on the phone, so you could speak to her. You appeared convinced, even then, you were justified in doing what you had done and were entitled, indeed should be assisted by the authorities, to contact her.
20 You spoke of Ashley breaking your trust. You said you had trusted her not to say anything about the photos, or about the money you had paid her for them. You said you now realised it was foolish to trust a 15 year old girl. You said you had contacted Vanessa in late 2014, after Ashley had broken your trust, knowing she had fought with Ashley, in the hope she could provide you with ammunition (presumably to use against Ashley). At another stage, you said trust had been broken because you had given Ashley money for one purpose and she had spent it for another. At one stage, you attributed your behaviour to ice, which you said you had been abusing since 2014. Later again, you said your ice use escalated in February or March 2015, and it was then you had developed a bizarre plan, because you had had enough of life.
21 At times you said to the police that you never intended to carry out your threats, at others that maybe you would if she didn’t pay back the money and say goodbye, in the manner you thought you deserved. At times in the interview you said you knew your conduct was despicable, appalling, disgraceful, that you felt bad for what you had put Ashley through, but then you would return to needing to have her give you the apology you believed you deserved.
22 You denied having a sexual interest in Ashley, or being aroused by the photographs she had sent you. At one stage you denied even looking at them. At another stage you said that you had remonstrated with her when, at the age of 13, she had first started posting nude photos of herself on Instagram and Facebook. Later, you said she wanted to be a financial dominatrix. You described what you meant by that as “You send photos, or you do this or you do that or make comments” You said that was what she wanted to be, so you were helping train her so she could go about earning money being a bitch. You seemed to draw a connection between training her, and your belief she could not operate as a financial dominatrix in the way you described until she was 18.
23 These explanations are bizarre, contradictory and irrational. It is clear that far from remonstrating with Ashley for posting revealing pictures of herself when only 13, you had been soliciting revealing photographs in return for money since she was that age. Your suggestion you were training her to become a financial dominatrix is at odds with your assertion you wanted to punish and humiliate her by posting pictures of her online. Your reference to her not being able to become a financial dominatrix until she was 18, to your misplaced trust that she would keep the photographs and payments secret and your threats to post revealing pictures of her online indicate an awareness of the private and sexual connotation of the photographs, as well as a belief that her legal status as a child meant it was wrong to solicit revealing photographs of her. And, you were friending a schoolgirl the same age as Ashley, and who you knew did not like her, telling her you hated Ashley, wanted to kill her, and pumping her for information about Ashley, months before she began her relationship with her boyfriend, and even longer before she, according to you, broke your trust by using money you had given her for a different purpose than you had intended.
24 This cannot be characterised simply as jealous possessiveness, an inability to let go, or to recognise a child was growing up and embarking on her own life which arose after Ashley took up with her boyfriend or in your terms misspent the money you had sent her between April and June of 2015.
25 It is this conduct, over the 2 month period of August and September 2015 which gives rise to the charge of blackmail to which you have pleaded guilty. That is unwarranted demands over that time. It is a course of conduct offence, not a single act.
26 Following the interview, you were told you were going to be charged with a range of offences including threat to kill, stalking and other offences. Within a week of that interview and your release, a final Personal Safety Intervention Order was made in Ashley's favour. It prohibited you from various activity including publishing on the Internet by electronic communication any material about Ashley and contacting or communicating with her by any means.
27 You were formally charged a few weeks after you were questioned and the Personal Safety Intervention Order was made. Your first committal mention in respect of the charges then brought against you was listed for 26 February 2016.
28 Ten days before the committal mention, on 15 February you posted 2 messages, one on Facebook to Ashley’s sister, and one on Instagram to a 16 year old friend of Ashley’s.
29 The messages were in these terms. "Someone better not be single. What, did he catch her stealing his money or probably cheating. If she is then she can pay back the money to me as she said, $220. I believe the only reason she did that was he said not to, we will soon see. P.S. she got Bec to call me to arrange paying it back just in case she denies it." And, "What went wrong? The slut pinched some of his money or get caught fucking one of his best mates. Fucking puppy love."
30 You were arrested and interviewed by appointment 10 days after sending those messages, the day before the committal mention was due to be heard. You said when interviewed that you did not think the messages constituted a personal attack on Ashley.
31 You were charged with breach of the Personal Safety Intervention Order and re-bailed. You attended the committal mention the next day, and a further hearing was set for some weeks later. Within 2 weeks of the committal mention you had posted a message on Instagram. It referred to Ashley having lied on many occasions including in what you described as her “recent statement” and that she knew the consequences for it. You made reference to the fact that despite looking after Ashley for the previous five years, she was now putting you in gaol. And accompanying that post were two old photographs of you and Ashley together.
32 You were arrested again within days, on 17 March. On this occasion, you admitted the message was directed at Ashley, and said it was a way of venting and recording your thoughts.
33 These contacts, on 25 February and 13 March, give rise to the rolled up summary charge of breach of the Personal Safety Intervention Order that you have also pleaded guilty to and come to be sentenced for by me.
34 By the time you committed these acts on 25 February and 13 March, breaching the Personal Safety Intervention Order, you had already previously been convicted, in the Magistrates' Court for breaching the Personal Safety Intervention Order by other contact with or about Ashley, and sentenced to a term of imprisonment of 7 days which you had served.
35 When initially arrested, on 2 October 2014, police executed a search warrant, at your home and found ammunition in your bedroom: twenty-five 22 calibre rounds and one 222 bullet in a zip lock bag. That gives rise to the other uplifted summary charge to which you have pleaded guilty of possession of ammunition.
36 Until the time of the commission of the acts relied on to constitute the blackmail charge over that 2 month period to the end of September 2015, you had a limited, and entirely unrelated criminal history, comprising mainly drink driving offences. Save to say that means you are not to be treated as a first offender and that they indicate a continuing problem with alcohol, they are not relevant to this offending. It is however of great concern that despite being charged with blackmail and related offences and being on bail and being made the subject of a Personal Safety Intervention Order in Ashley's favour, and having served a 7 day sentence for breaching it, you again posted threatening and abusive communications about Ashley to her, and people close to her. That conviction for breach of the Personal Safety Intervention Order is a previous conviction for the purposes of sentencing you for this charge of breach of a Personal Safety Intervention Order.
37 Not surprisingly, you were remanded in custody after the final post, the Instagram post to which I have referred in March 2016, and you have remained in custody ever since.
38 Mr McLoughlin on your behalf sought to paint this as a chaste, fraught, perhaps obsessive love, like that of Brahms for Clara Schumann. I said at the time and I say it again, I do not find it an apt analogy. The differences far outweigh any similarities. Clara Schumann was a mature adult, already established in her own right as a pianist, the mother of 7 children, and significantly older than Brahms, when he came into her life as a young adult, and the protégé of her husband. Clara Schumann remained committed to her husband, despite his unstable mental state and Brahms accepted that. Although Brahms was devoted to her, and she, it would appear, to him, and he continued to live in her family home after Schumann was confined to an asylum, history suggests a mutual, but unrequited passion. The only parallel I see in this is the absence of evidence there was any direct sexual contact between you and Ashley.
39
In late September 2015, following your return to Victoria after the failed attempt to travel to Queensland by train, which so alarmed your sister that she called the police, concerned for Ashley’s life, you consulted a psychologist,
Dr Dan Riddle. He first saw you on 21 September, that is during the period covered by the blackmail charge. He saw you a number of times from then until February 2016, shortly before you committed the breaches of the PSIVO which give rise to the summary charge before me. Dr Riddle reported you as advising you had initially attended on him at the urging of your mother, that your behaviour leading up to the initial consultation had become a severe problem for your family, and that you had become increasingly abusive, erratic and unreasonable. You reported to him you had begun to use ice in 2013. That appears to be a year earlier than the commencement time you reported to
Mr Cummins and Professor Daffern, the psychologists who assessed you some time after you had been remanded in custody following your subsequent breaches of the PSIVO. In Dr Riddle’s opinion the ice abuse appeared to have contributed to your abusive and increasingly paranoid behaviour. He concluded, based on the history you gave him, that you had become “somewhat of a mentor” to Ashley, which led you to have feelings of betrayal when she began a relationship with a young man. On that account, your feeling of betrayal could not have started until after her relationship with her boyfriend began in early 2015. Dr Riddle’s report is brief, and makes no reference to the 5 year history of soliciting suggestive photographs from Ashley in return for secret payments of money, and it is unclear whether he was aware of that or not. He said “I believe Darren’s threats and harassing behaviour towards [Ashley] was fuelled by his drug use and underlying mental health issues." Unfortunately, he does not specify in his report what those underlying mental health issues were.
40 Dr Riddle saw your prospects for rehabilitation as strongly linked to management of your substance abuse (alcohol and ice). Even then the highest he put it was if you could manage your substance use by developing a commitment to self improvement, he believed you had some (my emphasis) chance of rehabilitation. That seems to suggest that he was attributing the offending to your substance abuse. In that regard, I note you have, since your remand shown a commitment to self improvement. An impressive bundle of reports attesting to your participation in drug and alcohol courses, behaviour change courses and vocational programs undertaken whilst in custody was provided. I am told you have remained drug free in custody, and that is supported not only by self report and the absence of negative drug screens, but also by your holding the position of a billet whilst on remand. You instruct you intend to remain abstinent of ice on release, and have recently begun to attend AA meetings in custody, as a result of being confronted by the strong opinions expressed by Dr Riddle, Mr Cummins and Professor Daffern about the risk continued alcohol intake at pre remand levels poses to your prospects for rehabilitation.
41 The histories recounted by each of Mr Cummins and Professor Daffern are more detailed than those set out in your treating psychologist’s report. They of course were assessing you for plea and sentence purpose, not as treaters, so I must be cautious about drawing inferences adverse to you from the absence of reference to matters of history in Dr Riddle’s report compared to the forensic reports. Giving full weight to that allowance, I remain concerned about the difference in history or emphasis in the accounts given to the forensic assessors, compared to that recounted by Dr Riddle, particularly where what was told to Mr Cummins or Professor Daffern is in conflict with the account recounted by Dr Riddle, or seeks to paint you in a more favourable light, or advances matters at odds with the evidence or what you told the police when interviewed.
42 You told Mr Cummins you were attached to your grandmother who died about 5 years earlier and that you had then attached yourself “like becoming a mentor” to Ashley, then she got a boyfriend and excluded you from the picture, leading to you transferring your love and care to her friend Amelia[4]. You also told him that you had been affected by the death approximately 2 years ago of a woman called Louise, with whom you had been in a sexually intimate relationship approximately 20 years ago, when you were between the ages of 16 and 18. You told him that you had now concluded, that is at the time that Mr Cummins assessed you, that one of the reasons you felt so rejected when Ashley told you she had a boyfriend and no longer wished to be in regular contact with you was because it prompted you to realise that you had regarded her as a substitute for your deceased grandmother, your deceased ex-girlfriend Louise and for your then 25-year-old daughter with whom you had had no contact since she was a baby. Mr Cummins said you acknowledged your thoughts and feelings regarding these various significant women in your life had dominated your psychological state in the context where you were regularly abusing alcohol and methamphetamine.
[4] pseudonym
43 The difficulty I have with this account is that again, you connect the changing of your attitude to Ashley to her getting a boyfriend. And yet the evidence reveals your conduct in expressing a hatred of Ashley to her fellow school student Vanessa, and your pumping Vanessa for information about Ashley predated the commencement of Ashley’s relationship with her boyfriend by some months. It is also in conflict with what you told the police about the deterioration of your relationship with Ashley in late 2014.
44 There was nothing other than your self report to support your account that the only significant relationships with women you had had were with your grandmother, your childhood sweetheart Louise and Ashley, and that you had indeed had nothing other than a succession of age-appropriate casual relationships with women between the time of the break-up with Louise, or maybe the break-up of the relationship with the mother of your daughter and the commencement of the offending. There is no reference to any of that in your recorded interview, or in the report of Dr Riddle.
45 You described your relationship with Ashley to Mr Cummins as a father daughter mentoring relationship. You told him that you had given her pocket money and in exchange she would forward images of herself which you in no way regarded as sexual in type. You told him you regarded them as being indicative of her general development as an adolescent female. This sits at odds with the references to her as a slut, as somebody you were teaching to be the financial dominatrix that she wanted to become, and with the threats you made to publish intimate photographs of her unless she dealt with you on your terms.
46 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 your future risk to Ashley 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 Ashley. I was concerned the conflict between the evidence and your account to Mr Cummins was not addressed. Ultimately I requested a report from Forensicare be provided, to specifically address any psychological condition or personality trait or disorder which could shed light on the offending behaviour, or risk of reoffending. In addition to address the risk of reoffending generally.
47 As a result of that Professor Daffern assessed you after the plea was first presented, on 29 August. There are again some differences in the history recounted by him, and that recounted by Mr Cummins, and Dr Riddle.
48
You told Professor Daffern you had a limited relationship with your half sister Christy, that you see her once or twice a year. I note she has provided testimonial in which she said her children had grown a strong bond with you since 2013 when you returned to Victoria. That you had helped her with her children on a daily basis in sport, home work, helping out at dinner time, encouraging the children in their pursuit of sport. She said that you had encouraged and supported her as she became a single mother and supported her to take a significant involvement both as an office holder and coach of the local netball and football clubs. She said in her testimonial that she would not have had the confidence or ability to take on those roles without your support. She said you would be welcome to live at her home upon your release. You described your mother as emotionally detached. You said she was unresponsive when you approached her for help, when you were feeling desperate and distressed before your incarceration. By contrast you told
Dr Riddle you had consulted him at your mother’s behest.
49 You told Mr Cummins you had had no significant intimate relationships since it would appear the breakup of the relationship with Louise when you were aged 18. You told Professor Daffern you had two significant intimate relationships as an adult, a 4 to 5 year relationship with the mother of your daughter, and after that a 10 year relationship with a woman to whom you became engaged.
50 You acknowledged to Professor Daffern you had asked Ashley for photographs including asking for better photographs. Although you maintained to him that you were not sexually interested in her you acknowledged that some of your comments and requests were clearly sexual. You said that you would respond when she sent photographs of her in a bikini or her underwear that she looked nice or hot. You said that your motivation for encouraging her to send sexualised photographs was to diminish and demean her, that you wanted to punish her for contaminating your relationship with deception. You also told Professor Daffern that before your arrest and within the context of depression and methamphetamine dependence you took photographs on your smart phone of prepubescent girls dressed in bikinis from various websites. You told him you thought you had taken hundreds of such images. You said you were distressed and confused by your behaviour and that you had showed those images to the police. You also said you had never before had any interest in sex with children, that you knew taking photographs of the girls from the computer screen was abnormal and wrong but it was an escape from your problems.
51 Again to Professor Daffern you connected the breakdown of you your relationship (as you described it) with Ashley by establishing a relationship with her boyfriend, and by her having spent money that you had given her on something that was not agreed to by you, and that she had told you otherwise. Professor Daffern noted you still appeared to be devastated that Ashley had “lied” to you as you described it, and “tarnished” “the relationship” as you described it. You told Professor Daffern that following the lie Ashley had told you (presumably about spending the money for a purpose other than you had agreed to) and her establishing a relationship with her boyfriend, that you had made repeated desperate contacts, firstly to repair the relationship and then to punish her. Again this is tied to conduct after the start of 2015, and again takes no account of the expressions of hatred toward Ashley made to Vanessa and the pumping of her for information about Ashley in late 2014, or what you told the police about a deteriorating relationship over the last part of 2014.
52 You told Professor Daffern that it was after your grandmother’s death that you felt a need for a strong relationship and it was in that context that you fixated on Ashley. Again that is hard to reconcile with the evidence in relation to the soliciting of the sexually suggestive photographs over the previous five years.
53 Professor Daffern concluded that your relationship with Ashley appeared to be idealised and fantastic, and to have developed at a time when you were seeking close connection with others. He said it was likely the relationship was one-sided and that you were obsessed, that you overvalued the relationship, and the exclusivity and specialness that you desired was not shared by Ashley. There was no suggestion in Professor Daffern's report or in Mr Cummins' report of any psychological condition or state which could explain or contribute to that.
54 In Professor Daffern's view it is unclear whether there was any sexual interest in Ashley. He noted you had denied masturbating to pictures of Ashley or to the photographs of prepubescent children which you had on your phone, and that you denied any interest in a sexual relationship with Ashley or any other children. He concluded that the issue of sexual interest in children required further exploration. He said that although you said you did not have a sexual interest in Ashley, your plea for more sexualised images of her and your description of some photographs that she sent you as hot indicates otherwise. He considered the taking of the photographs of images of prepubescent children from the computer was also of concern in this regard. Professor Daffern noted it is often the case that clients are reluctant to openly discuss their sexual interests presentencing and he recommended that you participate in further assessment with the Sex Offender Assessment and Treatment Team following sentencing with a view to determining your treatment needs. I strongly endorse that suggestion.
55 I note also that as a result of the administration by Professor Daffern of the Paulhus Deception Scale, an assessment tool used to measure a respondent’s tendency to provide an overly favourable description of him or herself, that you scored above average on impression management and slightly above average on self deceptive enhancement. Professor Daffern said these results suggest you are somewhat limited in your capacity to reflect upon and accept your shortcomings, and have a tendency to present an overly favourable impression of yourself.
56 Of concern in Professor Daffern’s report is the intensity with which you appeared still in August 2016 to express your distress about the ending of the relationship, that you remained concerned that Ashley had lied to you, as well as your expressions of desire to make contact with her, and for her to be what you have described as honest. Based on that I do not share Mr Cummins' optimism that you present a low risk of reoffending with Ashley.
57 Like Mr Cummins, Professor Daffern rules out any mental illness other than perhaps depression since the death of your grandmother and following the dissolution of your relationship with Ashley. Like Mr Cummins he is of the view that your depression likely exaggerated your methamphetamine use.
58 Both Mr Cummins and Professor Daffern considered your stated intention to resume alcohol use at pre-incarceration levels as your most significant risk factor when considering your risk of reoffending. That in itself is somewhat surprising as you did not attribute your offending behaviour to alcohol abuse and there does not seem to be a significant correlation between it and the offending behaviour. Both Mr Cummins and Professor Daffern appeared to accept that continued methamphetamine use was not a risk factor, having regard to your stated intention not to resume methamphetamine use on your release. I am not so sure the risk of resumption of methamphetamine use can be so easily discounted.
59 I remain concerned about your risk of reoffending so far as Ashley is concerned, and of reoffending in like manner should you 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 your self-report, and also by the failure to reconcile your account of the cause of the deterioration in the relationship with Ashley 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 your intention.
60
Save therefore for accepting and endorsing the opinion of Professor Daffern that your sexual interest in children needs to be further explored, and the bearing of that on the assessment of your risk of future offending after you have been sentenced, I have real concerns about the extent to which I can act on their opinions. That is particularly so having regard to your poor scoring on the Paulhus Deception Scale as well as the dissonance between your
self- report and the timing as shown by the agreed statement of facts and other materials.
61 I do not consider that your methamphetamine use is to be regarded as a mitigating factor. You were a mature adult, making conscious choices to take methamphetamine, and would appear well aware before the offending behaviour began, that it made you obsessive, angry and irrational. I do not consider, on the basis of Professor Daffern's assessment that the offending behaviour is linked to Attention Deficit Hyperactivity Disorder. In fact I am satisfied on the basis of his report that you do not now display any symptoms of it, and that your self-report of your behaviour as a child is not supportive of such a diagnosis in childhood. I do not consider there is any evidentiary support on the materials before me which would enliven any of the limbs of Verdins and operate so as to reduce the sentence otherwise appropriate.
62
You are entitled to the benefit for your guilty plea, by reason of its utilitarian value. You pleaded guilty at an early stage after your remand in custody and although it might be said the case against you was a strong one having regard amongst other things to the e-trail you left, you are not to be denied the benefit of the utilitarian value of the plea. It is also of significance that by your plea of guilty you have spared Ashley, her family, friends and employers, the ordeal of having to relive and recount the events which give rise to the charges. Although you have expressed remorse for your behaviour to
Mr Cummins, as Professor Daffern's report makes clear your expressions of remorse are closely interwoven with your still strongly stated view that Ashley lied to you, did the wrong thing by you in not allowing the relationship to end on the terms that you wanted it to, and your continued statement that you wished her to be honest. Your plea of guilty in that context therefore in my view provides limited evidence of remorse. And for the reasons I have already identified my concerns about your risk of reoffending are very closely tied to your preparedness to let go. It is clear even after the concerns were expressed in the hearing of the original plea, which resulted in the Forensicare report being commissioned, that you still sought to justify your behaviour to Professor Daffern by reference to what you would characterise as Ashley’s misbehaviour.
63 This offending is clearly out of character with your past history. Your only criminal history up until the time of the commission of the blackmail offence was what is properly characterised as low level but repeat alcohol-related offending. Whilst that bears on your general prospects of reoffending, particularly having regard to what was until recently a stated intention to resume drinking at pre-incarceration levels upon release, I consider that to have little relevance to my assessment of the likelihood of your reoffending in like manner again. I do not consider the sentence should contain any weight given to deterring you from or encouraging your rehabilitation in relation to low-level alcohol related driving offences. It seems to me that would be using deterrence for an inappropriate purpose not related to the offending before me.
64 You are entitled therefore to the benefit of having got to your middle years with a relatively minor and unrelated criminal history, and a history of regular employment. I am told, despite the somewhat disparaging references you made to the psychologists who treated and assessed you to your mother and sister, that you nonetheless have their support and a place to live with them upon your release. You clearly have skills and a work history which should enable you to return to fruitful employment and to engagement in the community, if you can contain your drug and alcohol use and engage in pro social behaviour.
65 I consider this to be very serious offending. It is clear that denunciation general deterrence and just punishment loom large in the sentencing mix. You subjected this young woman, or child as she legally was at the time, to a terrifying campaign of death threats and personal and sexual denigration. You sought to terrorise her into submission to your will, and to demean her and humiliate her to her family, friends and employers. She was only a child and you a mature adult. She deserved to be able to live her life as she chose to, to form the relationships that she chose to and not to be exploited. If there was any breach of trust as you so constantly referred to, I consider the breach of trust came from you. It was your breach as a mature adult to a child who you had known since a baby whose father was a friend, an age appropriate friend of yours, and a child to whom you regarded yourself as a second father figure. That is the true breach of trust.
66
This was an obsessive pursuit of Ashley over a period of 2 months of the blackmail charge. You bombarded her, her family, friends and employer with calls, posts and messages. Despite your protestations of love for her, you made, repeatedly, the most chilling threats to kill her, you demonstrated an angry, irrational, violent hatred of her. You described her in language which revealed a profound lack of respect for her, as a person, and as a woman. You spoke to her, and of her in abusive, hate filled demeaning, disparaging and insulting terms. On the one hand you spoke of your anger that she had broken the trust you reposed in her, although it was not clear whether you were referring to a trust to spend$310 for a particular purposes, or because she had not kept secret the money you sent her in return for sending revealing photos of herself to you. But at the same time as you were speaking of her breaking the trust you had reposed in her, you were threatening to embarrass her by publishing the very photos you apparently thought she should not have told anyone she was sending to you, to her family, friends, and anyone who, like you, hated her and wished her ill. You were determined to assert your authority over her, and to insist she do as you dictated. And you maintained that determination, not only over the two months covered by the blackmail charge, as evidenced by your conduct and answers in interview, but thereafter. Not only did you maintain the same angry, abusive, denigrating and hate filled tone in the communications that breached the Personal Safety Intervention Order nearly 6 months after your initial arrest in early October, you maintained it in your interviews with
Mr Cummins and Prof Daffern of Forensicare.
67 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 your 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 your risk of sexual reoffending with children, and absence of support for so much of your self-report to the psychologists whose opinions were placed before me, and on which their assessments of your prospects of rehabilitation were based, to make any prediction with confidence as to your prospects for rehabilitation. I consider therefore that the sentence should be structured so as to allow an appropriate and hopefully better informed assessment of your prospects for rehabilitation during your time in custody. That is a better informed assessment of your 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, you could be released under supervision on parole therefore allowing for assessment and monitoring not only whilst you are in custody but also if seen appropriate on release in the community in order to encourage your rehabilitation and to allow you to undertake programs directed towards your rehabilitation in the community as well as in custody.
68 Having said that I am conscious as I said in the course of the plea that I am sentencing you 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 you said in your interview, what you said to the psychologists and the conduct and the subsequent breach of 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.
69 The maximum sentence for blackmail is 15 years' imprisonment. I agree with Mr McLoughlin that no guidance can be provided from the very few cases that have been dealt with before these courts in recent years. None has been of like character. There has been no articulation of principle relevant to the circumstances of a case like this in any appellate consideration of blackmail sentences, and no statistical analysis in the circumstances can be of any assistance at all because the sentences imposed were for offences that have no parallel to this. 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 victim and the nature of the past relationship between you and her parents, which had placed you in the position of trusted adult to this child as well as the significant age differential between you and Ashley. The chilling nature of the death threats, the repeated attempts to coerce her into doing what you wanted by the threats to post the photos you had solicited from her to others or to kill her or yourself, 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 you did, as well as your continued assertions even after arrest that you were justified in what you were doing.
70 This is not only a grave offence of its type therefore, it also follows from that that I do not consider the offending as 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 Community Correction Order is simply not enough.
71 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 you had already been interviewed, told you 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.
72 The summary charge of possession of ammunition is punishable by fine only.
73 I have been asked to make orders for disposal and forfeiture and I propose to do so. And I have also been asked to make an order pursuant to s.464ZF of the Crimes Act in relation to the taking of a forensic sample, and I propose to make that. That sample Mr Aitken, I have directed to be taken by way of buccal swab, that is a mouth swab. And I must warn you that if you do not cooperate in the provision of that sample, then the police are authorised to use reasonable force to obtain it and may well use the more invasive means necessary of obtaining a forensic sample, namely a blood sample.
74 On the charge of blackmail to which you have pleaded guilty and the two uplifted summary charges of contravene a personal Safety Intervention Order and possessing cartridge ammunition without a licence or permit, you are convicted.
75 On the charge of blackmail you are sentenced to be imprisoned for a period of 5 years.
76 On the charge of breach of the Personal Safety Intervention Order, you are sentenced to be imprisoned for a period of 6 months. I direct that the whole of that sentence on the summary charge be served cumulatively upon the sentence imposed on the blackmail charge.
77 That makes a total effective sentence of five years and six months and I direct that you serve a period of 3 years and 6 months before being eligible for parole.
78 I declare that you have spent a period of 231 days in custody in pre-sentence detention and direct that that be reckoned as a period of imprisonment already served under this sentence.
79 So far as Charge 6 is concerned of possession of ammunition, you are fined a sum of $500. There is automatic stay on that of one month.
80 Pursuant to s.6AAA of the Sentencing Act, I declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of 8 years' imprisonment and I would have fixed the period of 5 years and 6 months as the time that you would have had to have served before being eligible for parole.
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HER HONOUR: Do those orders reflect the sentence I said I intended to impose?
MS FITZPATRICK: Yes Your Honour.
HER HONOUR: Arithmetic correct?
MR McLOUGHLIN: Yes Your Honour.
HER HONOUR: Any further orders?
MS FITZPATRICK: No Your Honour, that concludes the matters from the prosecution's perspective.
HER HONOUR: Thank you, could you remove Mr Aitken please. I'll stand down.
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