Director of Public Prosecutions v Arian
[2020] VCC 661
•22 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No CR-19-02299
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JINWAR ARIAN |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 May 2020 | |
DATE OF SENTENCE: | 22 May 2020 | |
CASE MAY BE CITED AS: | DPP v Arian | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 661 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty – One charge of blackmail – Offender obtained $5000 from the victim and made demands and threats over an extended period of time – Limited prior criminal history – Remorse – Circumstances surrounding COVID-19 pandemic taken into account.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991.
Cases Cited:The Queen v Vo (Supreme Court of Victoria Court of Appeal, Phillips CJ, Callaway and Batt JJA, 14 May 1998).
Sentence: Imprisonment for a period of 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H Baxter | Office of Public Prosecutions |
| For the Accused | Mr S Tovey | Marcevski Lawyers |
HIS HONOUR:
Introduction
Jinwar Arian, you have pleaded guilty to one charge of blackmail contrary to s 87 of the Crimes Act 1958, which carries a maximum penalty of 15 years imprisonment.
You have also admitted your prior criminal history.
Circumstances of the offending
A prosecution opening was tendered on the plea and may be summarised as follows:
The victim in this matter is Abraham Pace who was previously unknown to you. On 14 July 2019, Mr Pace’s cousin, Chloe Di Paolo, arranged to buy one gram of cocaine from a male she knew as ‘Nabil’. Ms Di Paolo provided Nabil with
Mr Pace’s address over Facebook Messenger. Mr Pace and Ms Di Paolo met Nabil and three other unknown males a short distance away from Mr Pace’s address. The cocaine was handed over and Mr Pace arranged to pay for the cocaine the next day.
On 15 July 2019, Mr Pace arranged to meet the person he believed was Nabil in Mill Park to pay for the cocaine. Once he arrived, Mr Pace met a person he knew as ‘Hammad’ and paid him the $300.
The person that Mr Pace knew as Nabil then approached him and both he and Hammad yelled at Mr Pace for allegedly not making the payment. Nabil told
Mr Pace, ‘You don’t wanna pay? Well now you owe us $5,000. I’m HA don’t worry about it.’ It is alleged that ‘HA’ is a reference to the Hells Angels outlaw motorcycle gang.
Mr Pace arranged to meet with Nabil through his brother in law, Youseff El-Iss, later that evening. Nabil claimed he had not been paid the $300 and Mr Pace paid a further $300 for the purchase of cocaine. Nabil assured Mr Pace he no longer owed $5000. Mr Pace thought that the debt had now been paid.
On 16 July 2019, Mr Pace received a phone call from you. You introduced yourself as ‘AJ’. You told Mr Pace that you had heard that he had had a run in with your cousin. Mr Pace assumed you were referring to either Hammad or Nabil and told you to speak to his brother in law who had previously been mediating the matter.
Later that night Mr El-Iss told Mr Pace that he had spoken to you. You alleged that Mr Pace owed you a debt of $15,000 but Mr El-Iss had managed to bargain it down to $5000. Mr El-Iss told Mr Pace he had three days to pay the debt.
On 17 July 2019 Mr Pace contacted Mr El-Iss to organise a meeting with you so he could pay the $5000. The meeting was arranged for 11am at Subway in Bundoora. Mr Pace withdrew $5000 from his Commonwealth Bank account.
At 11am on 17 July 2019 Mr Pace, Mr El-Iss and you met in the Subway carpark. You told Mr Pace, ‘If I hear of you doing drugs again or being around drugs again, I’ll put a hole in your leg and if it hadn’t been for your brother in law, you’d already have one.’ Mr Pace had never been threatened before and was in fear of his life.
You directed Mr Pace to put the $5000 in the front seat of your black Jeep.
Mr Pace placed the $5000 in the glove box and left.
On 12 August 2019, you called Mr Pace asking to meet. Mr Pace had reservations but agreed, believing it was a social meeting.
At 11.30pm that night, you arrived at Mr Pace’s house and you went for a walk together. You wanted to know if Mr Pace had been taking cocaine recently.
Mr Pace lied and said he had taken some the previous Thursday. At this point, you became angry and slapped Mr Pace on the face. You told Mr Pace that because he had taken drugs he now owed you $15,000. Mr Pace said he did not have the money and you asked whether he could do a payment plan.
Mr Pace agreed to pay $1000 a week for the next 15 weeks.
As you and Mr Pace walked back to his house, you pointed out one of your friends who was walking down the street. You told Mr Pace ‘see that, he’s strapped, we came here to kneecap you…this Thursday you’ll pay the first $1000, you call me.’ You then left in your car.
On 14 August 2019, Mr Pace reported the matter to police and agreed to record all further telephone conversations with you.
On 15 August 2019, Mr Pace received a phone call from you. When Mr Pace told you that he didn’t have your money, you denied knowing what he was talking about. You told Mr Pace that the way he was going to do things was not very good for you and that he was better off talking to you. Mr Pace asked you if you were going to resolve this, to which you responded that it had to be resolved.
Later that day Mr Pace called you and said that he would have the $15,000 by the following week. You again denied that you were owed money by Mr Pace and asked that you meet in person as you did not want to speak over the phone.
After having received a number of calls, Mr Pace called you on 16 August 2019. You told Mr Pace that you were going to come and visit him at his home. You then asked whether he was still ‘pulling through’ with what he had said to you the other day. Mr Pace responded that the best he could do was next week. You told him that you would hold him to his word and that he got slapped in the mouth the last time for lying. You ended the call by telling Mr Pace that you would expect a call from him on Wednesday.
You and Mr Pace engaged in a number of phone calls on 21 August 2019 which are summarised as follows:
· At 10am you called Mr Pace and asked whether you were meeting that day. When Mr Pace asked whether he had a choice, you told him ‘you’ve got a choice…but it’s better if you see me’ and to ‘stop asking so many questions on the phone’.
· At 2pm Mr Pace called you and told you he needed one day as he was waiting for money to clear in his account. You asked him if he ‘could do some today and the rest tomorrow’ and requested a payment of $5000 with the rest to follow the next day.
· At 3pm Mr Pace called you and said he could not pay you that day and the earliest he could pay was the next day. He arranged to meet you at Westfield at 11am the next day.
· At 5.25pm Mr Pace called you and the meeting time for the next day was confirmed to be at 10.30am at Westfield in South Morang.
On 22 August 2019, you and Mr Pace met at the Westfield Shopping Centre. You explained that this payment was due because you had told Mr Pace to ‘stay off it’, referring to cocaine. You explained that the reason you were doing this, that is, blackmailing him, was to teach him a lesson about not using drugs. You said that if he ever did it again, you would ‘tax him’ and that you had already lost $20,000. Mr Pace left the meeting and you were arrested at the Westfield Shopping Centre.
You made a ‘no comment’ record of interview and were remanded in custody.
Nature and gravity of the offending
Mr Tovey who appeared on your behalf, sensibly conceded that the offending is serious. It occurred over a number of days between 17 July and 12 August 2019 and involved the obtaining of $5000 and a number of demands and threats or veiled threats including a threat to shoot the victim.
The offence of blackmail is by its nature a serious offence which Parliament recognises by the imposition of the maximum penalty of 15 years imprisonment. As has been noted by the Court of Appeal in The Queen v Vo[1], it is an offence that is frequently hard to detect, where the perpetrator preys on the fear that their conduct has caused. It is, in that sense, a nasty offence as the victim, in a case such as this, is often in such a state of fear that they are unable to tell anyone else about the conduct. Here, the victim had the courage to ultimately contact the police, however it is apparent from his victim impact statement that he has been significantly affected by the offence.
[1] (Supreme Court of Victoria Court of Appeal, Phillips CJ, Callaway and Batt JJA, 14 May 1998), 4.
In this instance however I accept that the offending did not have some of the more aggravating features such as use of weapons or attendance at the victim's home. Further, while there is reference in the summary to motorcycle gangs, you did not utter those words or suggest directly to the victim that you yourself were associated with a motorcycle gang in your direct interactions with him.
The victim, in his victim impact statement, notes that as a result of the offence he stayed in hotel accommodation for some days and had cameras installed on his property as a result of your conduct. He developed health issues such as depression and anxiety. Following the offending he put his home up for sale and travelled overseas for a period of time in order to escape the stress he was experiencing.
The victim has sought the assistance of a psychiatrist which he largely funds himself. In addition to the loss of $5000 he notes a number of other financial costs such as loss of income from his business as he was off work for eight weeks and costs associated with upgrading the security on his property.
Personal circumstances
You are now 25 years of age and were 24 at the time of the offending.
You were born in a Kurdish region of Iraq. You have one sister and two half-brothers. One of those half brothers now lives in Sweden.
Your father was involved in the Iraqi Civil War and as result was held prisoner for more than a year after which the family migrated to Australia when you were around four years of age. You originally settled in Adelaide and then moved to Melbourne when you were approximately 14 years of age. You had a relatively strict upbringing which continued into your late teen years. As a teenager you excelled in soccer and by the age of 16, you were playing in the Victorian Premier League.
You successfully completed your VCE year and were accepted into the Royal Military College, ultimately planning to join the army as an officer. Unfortunately this did not eventuate as your mental health deteriorated leading to attempts at suicide and drug use and as such, you did not take up your position at the College.
You ultimately attended Avoca TAFE and completed a diploma in business before transferring to a Bachelor of Business at La Trobe University. You completed a year of that course before dropping out in order to care your mother. It was around this time that you began to use drugs such as cocaine, Xanax and Valium on a daily basis.
Your mother suffers from a number of chronic health issues including fibromyalgia, hypothyroidism and persistent pain syndrome. As a result of her health issues your mother requires ongoing care. Your brother has also developed a psychotic illness which is of great concern to you. While your relationship with your father was not good in your early years, in recent times your relationship has improved, and your father was present at the plea supporting you.
You have suffered from a number of physical health issues including back and spinal injuries as a result of a car accident that occurred when you were 21, in addition to what seems to be a number of mental health issues.
A report was prepared by Ian McKinnon, consultant psychologist, and tendered on the plea. While Mr McKinnon was only able to interview you via a video link, he provides some observation as to your psychological state. Mr McKinnon is of the view that you appear to have symptoms consistent with a moderate mixed anxiety and depression disorder (MADD). Mr McKinnon attributes this to a number of issues including difficulties associated with your move to Australia from Iraq, multiple home address changes, your relationship with your father which included violent punishment, your brother's psychotic disorder and your mothers chronic ill health requiring you to take on the role as a carer.
Understandably, Mr McKinnon concludes that your current legal matters including your incarceration have added to your anxiety and depression.
Mr McKinnon is also of the view that you suffer from a poly substance abuse disorder (PSAD) as a result of your long term drug use. You instructed
Mr McKinnon that at the time of the offending, you were abusing significant quantities of cocaine, benzodiazepines and cannabis on a regular basis which he believes was used as an escape from your domestic responsibilities.
While Mr McKinnon assessed you as suffering moderate anxiety and depression disorder at the time of assessment, later in his report he is of the view that:
'Mr Arian’s MADD and his PSAD were manifested at a severe level and made a major contribution to his offending by degrading his ability to reason and make sound judgement, elevating his impulsivity, lowering his powers of consequential thinking and encouraging a self absorbed perspective that lacked a sense of adult responsibility and concern for other individuals and the wider community.'
It was this paragraph that Mr Tovey initially sought to rely on to enliven Verdins principles. However as discussed at the plea, while the psychological states that you suffer are relevant to the sentencing discretion generally, in my view they do not enliven Verdins principles in this instance.
First, if you were in a state of intoxication over the entire period specified on the indictment then as it was self induced, even if it could be said that your psychological conditions played some part, it is simply impossible on the evidence to determine to what extent and when. Secondly, unlike offences that occur on a single occasion where the surrounding circumstances are able to inform the behaviour and possible connection to a psychological condition, here, there was a series of events constituting the offending over a long period of time and therefore again, it is not possible to determine to what extent your psychological conditions played a part in your offending, if at all.
Nonetheless, your psychological history does have relevance in other respects. As confirmed by Mr McKinnon, your difficult childhood and complex family relationships have led to your depression and anxiety which, in turn has contributed to your drug use and its own associated difficulties. Thus, while the direct connection cannot be drawn to enliven Verdins principles, these matters assist in explaining your state during and prior to the offending period including your drug use.
Since being in custody however, it appears that you have used your time to turn your life around. You have not used drugs and, according to Mr McKinnon your anxiety and depression have ameliorated. You stated to Mr McKinnon that prison has helped you break the cycle you were in and that you have a clearer mind now having improved physically and mentally.
Three references were tendered on the plea. Two were from people who have known you and your family for many years. The third reference was from your mother where she confirms that before you went into custody you played a significant role in her care. All the referees speak of the positive aspects of your character and in the letter from Hwvar Khoshnow, she confirms that you have gained insight since being in custody, that you are remorseful for your conduct and that you are now in a better position to move forward.
Relevant sentencing considerations
You pleaded guilty to this offence at the first committal mention and as such your plea is a plea at the earliest opportunity. Your plea of guilty has saved court time and expense and significantly, in this instance has saved the need for the victim to have to give evidence and relive a traumatic event.
While a plea of guilty may be indicative of remorse, in this instance in my view you have shown remorse over and above your plea. This is most demonstrated in a statement you made to Mr McKinnon where you said:
‘I feel terrible. I did the wrong thing. If the guy would let me, I’d apologise. I have no grudge about it. I take responsibility for my bad choices.’
Mr Tovey submitted that while you are not a ‘young offender’ as defined in Sentencing Act 1991, you are at age 25, a young man with limited prior history and as such rehabilitation should feature prominently in the sentencing discretion. I agree. For the reasons already mentioned above, it seems that a series of life events have led you to a lifestyle of drug use and poor decision making. However you have been able to take positive steps to overcome your issues and move on with your life. Therefore, in my view your prospects of rehabilitation may be assessed positively.
Ms Baxter who appeared on behalf of the Director of Public Prosecutions submitted that general deterrence is a primary sentencing consideration. Further, because the nature of the crime of blackmail is to instil fear as was the case here, denunciation is also a prominent sentencing consideration. Both of these principles in my view are important sentencing considerations.
Specific deterrence in my view need not carry significant weight for the reasons already articulated in relation to your prospects of rehabilitation together with consideration of your limited prior history. In relation to the prior matter, while it was an offence of violence, I note the disposition was an adjourned undertaking without conviction.
Finally, I take into account the current circumstances surrounding the COVID‑19 pandemic. From information provided by Corrections Victoria, it is clear that personal visits to prison have been suspended, there has been a reduction of services and programs, and prisoners are experiencing increased lockdown periods. Those circumstances cause additional stress for prisoners and their families and also affect the programs and supports in prison designed to assist in rehabilitation and transition into the community. Applying these matters to your specific personal circumstances, in my view you are entitled to have this taken into account in mitigation.
Mr Tovey submitted that the time you have served in custody in all the circumstances is sufficient to meet the relevant sentencing considerations. In that respect he provided a number of comparable decisions of this court in relation to blackmail and extortion offences. With the caveat that comparable cases are often of limited assistance and each case must turn on its own individual circumstances, I have taken these into consideration.
Taking all matters into account, in my view the relevant sentencing considerations are able to be met by the time you have already served on remand.
Sentence
Mr Arian, please stand.
Jinwar Arian, on Charge 1, blackmail, you are convicted and sentenced to
9 months imprisonment.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 274 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 18 months imprisonment with a non parole period of 12 months.
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