Director of Public Prosecutions v Balsillie

[2016] VCC 221

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-10506
CR 15.01946
CR 15.01969

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK BALSILLIE

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	18, 19 January, 22 February 2016
DATE OF SENTENCE:	7 March 2016
CASE MAY BE CITED AS:	DPP v Balsillie
MEDIUM NEUTRAL CITATION:	[2016] VCC 221

REASONS FOR SENTENCE
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Subject:  Extortion, possess counterfeit money
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:                  9 months' imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Piekusis
For the Accused	Mr D. Langton	McNamaras Solicitors

HIS HONOUR:

1Mark Balsillie.  You have pleaded guilty to one charge of extortion between 7 and 27 September 2013 by making demands of Keith Tribe that he pay money with a threat to inflict injury. The maximum penalty for the crime of extortion, which is a state offence, is 15 years' imprisonment.

2You have also pleaded guilty to a separate unrelated charge of knowingly possess counterfeit money. That is a Commonwealth offence for which the maximum penalty is 10 years' imprisonment.

3Your plea in relation to the State offence of extortion proceeded before me on 18 January 2016. At that time you also pleaded guilty to a summary charge of possessing cartridge ammunition without a licence and you consented to this summary matter being dealt with in this court. The maximum sentence for this offence is 40 penalty units.

4The circumstances of your offending in relation to the crime of extortion are summarised in a prosecution opening which I marked as Exhibit A on the plea.  The summary was read in open court by the prosecutor Miss Piekusis and was accepted by your counsel Mr Skehan as being accurate and as forming a proper basis upon which I can proceed to pass sentence upon you.

5Your offending in relation to the charge of extortion occurred over a short period between 7 September and 27 September 2013. At all times you were a member of the Comancheros Motor Cycle Club.  However, I heard submissions, which I accept, that you have disassociated yourself with that club since your arrest for this offending.

6Bemir Saracevic is also a member of the Comancheros Motor Cycle Club. He also held office in the South Melbourne chapter of that club.

7At the time of this offending Bemir Saracevic was engaged in blackmailing one Keith Tribe and was the principal involved in that offending. Saracevic has pleaded guilty to a charge of blackmailing Keith Tribe between 27 August  and 27 September 2013, a period that embraces your involvement.

8The offending that you have engaged in occurred in circumstances where you assisted Saracevic and others in demanding money with menaces from Keith Tribe.  Your involvement was to support Saracevic, acting as a foot soldier, obeying his directions to go to Keith Tribe’s home, which you did, either for the purpose of surveillance or  to make a threat, which you also did, attending with another co-offender Gemino Aloia to affix a bullet to the front door of Keith Tribe’s home.  The clear purpose of that act was to instil fear into Keith Tribe that if he did not meet the requests made of him by Saracevic, then harm would come to him.

9There were other persons involved in the offending against Keith Tribe.  Each of them was associated in some way with the Comancheros Motor Cycle Club.

10Emir Jaha, who was convicted of a charge of blackmail on Keith Tribe after a separate trial before the jury, I am yet to sentence him and he has also pleaded guilty to other offences.  His offending occurred over the period between 27 August 2013 to 4  September 2013, before you became involved.

11Tangianau Maratai pleaded guilty to a charge of extortion of Keith Tribe between 27 August 2013 and 4 September 2013.  He went with Saracevic and Jaha and another unknown male to the home of Keith Tribe on 27 August 2013 when Saracevic demanded more than  $852,000 from Keith Tribe.  Tribe was told that Saracevic and the others were from the Comancheros.  The men were wearing clothes identifying themselves as Comancheros.  Maratai also acted as a conduit for further communications between Tribe and Saracevic, who gave Tribe the mobile telephone number of Maratai as a contact number. There is no evidence that you had any knowledge of what had taken place between Saracevic and Tribe before you became involved on 7 September.

12Maratai is a man of borderline to very low intelligence and he has very limited criminal history which, for sentencing purposes, was largely irrelevant. I sentenced him to a community corrections order with conviction and conditions for a period of two years.

13Another offender was Gemino Aloia.  He pleaded guilty to a different offence, that of making a threat to inflict serious injury upon Keith Tribe on 24 September 2013. That offence carries a much lower maximum penalty compared to the offence that you have committed. Mr Aloia’s offending was confined to making one visit to the home of Mr Tribe when he was not present, with you, to affix a bullet to the front door of the premises. That was the implied threat of serious injury. He was convicted and fined the sum of $5,000.  He also had a limited prior criminal history, which was largely irrelevant for sentencing purposes.

14You first became involved in the extortion of Keith Tribe when you were phoned by Saracevic on 7 September 2013. Saracevic told you that he was waiting to receive an address for Tribe and that you would have to go to that address on that night. Telephone records show that your mobile phone utilised a cell tower close to Tribe’s home around 11 pm that night. This shows that you followed the command of Saracevic to go to Tribe’s home.

15The following afternoon you were again contacted by phone by Saracevic who told you to “go there again day and night”. You told him that you had been there the previous day and someone was home but there was no one there today and you described some items that you had observed to be moved. This shows you also went to Tribe’s home at the command of Saracevic on 8 September 2013. Saracevic told you to go past again and he gave you another phone number to contact him on.

16On 9 September you had a further conversation by telephone with Saracevic to the effect that you had been provided with another address for Keith Tribe from a neighbour. This shows that you were prepared to investigate the whereabouts of Keith Tribe after you had ascertained that he was not living at the address you had been given.  In submissions, your counsel told me that you lied to Saracevic when you told him that you had been to Tribe’s house on 9 September.  I do not accept that submission from the Bar table without any evidence.

17You had further conversations by telephone with Saracevic on 9 and 10 September to the effect that Keith Tribe could not be located. On 11 September you told Saracevic that you had attended another address where you believed that Keith Tribe may be.

18On 24 September you had a further telephone conversation with Saracevic.  He informed you that Keith Tribe and his wife were refusing to pay any money.  He told you to go to the home of Keith Tribe that night with Aloia and to knock on the door and call him. In a further conversation later on, Saracevic instructed you to go to the home of Keith Tribe that night and to tape a bullet to the front door. The evidence shows that later that night you went to the home with Aloia and taped a Winchester 30 calibre bullet to the front door. When you attended, you were observed phoning Saracevic. The phone call was the subject of an intercept where you were heard to be detailing to Saracevic details of your observations at the house.

19Even though you were not part of the initial demands made of Keith Tribe between 27 August and 4 September and had no knowledge of the extortion of Keith Tribe at that time, by the time that you went to Keith Tribe’s home on 24 September you were fully aware that Saracevic was demanding money from Keith Tribe and that he was refusing to pay.

20You therefore had full knowledge that all of your actions were part of a joint criminal enterprise orchestrated by Saracevic to extort money from Keith Tribe.

21I do not accept any submission that you were not aware of the nature of discussions between Saracevic and Tribe or, a police woman posing as Ms Krause, on 24 September.  I also do not accept any submission by your counsel that you were an unwilling participant in the extortion of Tribe.  You were fully aware that Saracevic had demanded money from Tribe and that he had refused to pay.  Indeed, you told Mr Cummins, a clinical psychologist to whom I shall later refer, that your offending was motivated in part to impress the Comancheros and importantly, because you thought that if Mr Tribe paid the money demanded, you would earn a “success fee” as reward for the part played by you in the extortion.

22I consider that you were more involved in the offending in relation to the extortion of Keith Tribe than was Maratai and Aloia. As I say, you were a foot soldier of Saracevic and followed commands that you go to the home of Keith Tribe on a number of occasions.  Also, in your case you have some prior convictions, which means that in sentencing you I must have proper regard to application, not only of the principle of general deterrence, but also proper regard to the application of deterrence specific to you. I will deal with your prior convictions a little later.

23When investigators executed a search warrant at your home in Gladstone Park you were found to be in possession of 49 counterfeit $50 notes, with a total face value of $2,450. You were also found to be in possession of laminating paper and an A4 size transparency film pouch containing clear binding, template film of an Australian $50 note and photocopies of Australian $50 notes. Your fingerprints were found on these objects. You made a no comment record of interview.

24I received into evidence as Exhibit B a victim impact statement from Keith Tribe and his partner Sandra Margaret Krause. In those statements they detail the effects which the offending involving the extortion had upon them. Both of them were scared by what happened and had to leave their home because of the threats of harm to them should they not pay debts alleged to be owed from business dealings many years earlier. In passing sentence I have taken into account the content of the victim impact statements.

25I regard the offending that you have engaged in as being very serious. I accept your role can be distinguished from that of Saracevic, who was clearly the principal offender. But his demands for money would have been hollow without the support of Comancheros like you, who were prepared to obey his commands.

26Keith Tribe had been made a bankrupt some years earlier and the so called debts that Saracevic was attempting to collect had been proved in that bankruptcy. Corporation Laws and Bankruptcy Laws in this country are designed to protect both debtors, like Keith Tribe and creditors. Those who attempt to act to collect debts outside of those laws and the courts, through threats of harm, also threaten the proper operation of the commercial fabric around which business must be permitted to operate. There is only one rule of law in this state and that does not permit extortion where the physically strong and violent attempt to prevail over those who obey the law of the State. It is for this reason that the sentence imposed must have proper regard to the application of the principle of general deterrence. That is, the sentence must deter others who would seek to offend in this way.

27In relation to the Commonwealth charge of possession of counterfeit money, the counterfeit notes were examined and found to have been printed using either an ink jet or tone printer and were produced on paper, not the polymer substrata used to print genuine Australian polymer banknotes. The clear window feature of Australian banknotes was missing and was replaced by adhesive film instead. There were other differences in the notes that you were found to possess from a genuine banknote and I accept that the counterfeit money that you were found in possession of was generally of poor quality.  Whilst serious, I am of the view that your offending in relation to the Commonwealth charge was towards the lower end of the scale for this kind of offending.  In order to properly reflect general deterrence the sentence I impose for this offence must be that of imprisonment.  That is especially so where you have eschewed a Community Corrections Order and you have little ability to pay a fine.

28Importantly, you have pleaded guilty to the charges.  Although your pleas were not made at the earliest opportunity, I nevertheless treat you as having done so at an early time. By your pleas of guilty you have saved the time and costs of contested committals and trials and I treat your pleas of guilty as evidencing remorse for the offending that you have engaged in. In my opinion, because you have pleaded guilty, you are entitled to a reduction in sentence and this will be reflected in the sentence that I shall shortly pass.

29I turn to your background and family circumstances and other factors relevant to the sentencing of you. You were born on 20 September 1984 and you are 31 years of age. I received into evidence a psychological report from Mr Jeffrey Cummins which I admitted into evidence as Exhibit 1. That report summarises a number of matters pertinent to you and is useful for that purpose and I borrow from it.

30You were brought up in a caring and loving family. Your father, who was an impressive witness and who gave evidence before me is a detective in Victoria police and has been a policeman for about 40 years. Your mother is employed as a human resources officer. You have an older sister who is married with children.

31You are married and you and your partner have a daughter, now aged four years. She has a hearing impairment and wears a hearing aid. You met your partner when you were 20 years of age and you married in 2010 when you were aged 26. Your partner works as a kindergarten teacher. She suffers from MS, which apparently causes chronic fatigue and so she works part-time.

32You separated for approximately six months in 2013 because you were said to be feeling severely depressed and engaging in intermittent suicidal thinking. You felt anger toward your father-in-law because of matters which I shall shortly set out. You and your wife were separated at the time of this offending. She visited you in custody, which ultimately brought about a reconciliation. You were supported in the court by your wife, who is now estranged from her father.

33You attended Strathmore Secondary College and left shortly before completing year 12. You completed an apprenticeship as a motor mechanic working for Preston motors and then after working for two years as a motor mechanic with another firm you started your own business “M – Tech” where you worked as a self-employed motor mechanic for three years. You employed two part-time mechanics and one apprentice. You leased a factory but the business closed for financial reasons. All the creditors were paid, including a debt to the ATO.

34Around 2007, when you are aged 27, you apparently agreed to become a director of two companies that had been operated by your father-in-law. You apparently did not appreciate at the time that you became a director of these companies that they were heavily in debt and probably insolvent. Your father-in-law did not inform you about the true financial situation of the two companies and you were apparently then made the subject of a director’s assessment for unpaid tax liabilities of the two companies. I was told that as a consequence of becoming a director of these two companies and, because you were tricked by your father-in-law, you now have a personal debt to the Australian Taxation Office, which you cannot pay, of about $500,000.

35You have not been employed, except for a short time with MC Labour, since your involvement with your father-in-law’s companies. As a result of your financial demise caused by the failure of your father-in-law’s companies you were forced to sell a home which you owned with your wife in Gladstone Park. You now occupy rental accommodation.

36When you were arraigned, you admitted prior convictions for reckless conduct endangering serious injury and unlawful assault. You were convicted of these charges at the Magistrates' Court at Heidelberg on 19 September 2013. I was provided with a summary of that offending, which occurred on 30 March 2012. The summary was marked as Exhibit C. The summary shows that you were out drinking at a hotel with others when you got into a vehicle with them and chased another vehicle and assaulted the driver and severely damaged his vehicle. The summary shows that you engaged in an episode of complete lawlessness. You were driving. At that time you had no prior convictions and the Magistrate imposed a term of imprisonment of one month, which he wholly suspended for an operational period of 12 months. Part of this offending occurred within the operational period of that sentence.

37In 2014 you threatened to kill your father-in-law and this resulted in you appearing in the Broadmeadows Magistrates’ Court on 29 January 2015. There was a lead up to this offending where you had threatened to kill yourself and others with a makeshift shot gun and there are other occasions where you threatened harm to yourself and became agitated and your father was concerned for your mental state and well-being. In December 2014 you were arrested and taken to the Northern Hospital because police believed you to be suffering from a mental illness and thought you to be a threat of harm to yourself and others. When interviewed you blamed all of your troubles on your father-in-law.

38In January 2015 the Magistrate imposed a community corrections order. He had earlier granted an intervention order in favour of your parents. In May 2015 you asked the Magistrate to vary the community corrections order because of your then work commitments with MC Labour Hire. The community corrections order was cancelled and the Magistrate imposed a fine instead.  That fine remains unpaid.

39Mr Skehan who appeared on your behalf told me that you became involved with the Comancheros because of your passion for motorcycles with which you have had a long involvement.

40I was told and accept that you have not had any association with the Comancheros whilst you have been on bail for this offending. There was a condition of bail that you do not associate with members of, or former members of, the Comancheros. I was also told and accept that there is no formal process by which a member can resign from the Comancheros.

41Mr Cummins gives the opinion that at the time of offending you were suffering from symptoms of an adjustment disorder with mixed anxiety and depressed mood and features of traumatisation. He said, inter alia:

“In my opinion this adjustment disorder, which is a trauma related disorder, was initially triggered by the demise and eventual forced closure of his business and was then exacerbated as a result of being emotionally pressured and then financially exploited by his father in law. He stated at the time he offended he was feeling he was a failure and he was then financially dependent on his wife.”

42Mr Cummins also expressed the opinion that if you were sent to gaol, there is a genuine risk that your mental health would again deteriorate to the point where you could again attempt to take your life. In his report, Mr Cummins made it clear that you were hoping to receive a disposition in the form of a community corrections order. Indeed, that was the whole thrust of the submissions made by your counsel to me. In the end, I did direct that you be assessed for suitability for a community corrections order, which I was contemplating imposing after you had completed a term of imprisonment. During that assessment, you eschewed a community corrections order and made it quite clear that you would not agree to it in the result that the imposition of a community corrections order as a disposition or part of a disposition is not available.

43Mr Cummins expresses the opinion that at the time of offending your “perception, judgement and problem solving ability was impaired as a result of him suffering from the adjustment disorder.”  Whilst I accept that you may now be suffering from an adjustment disorder, I do not accept Mr Cummins' opinion that your perception, judgement and problem-solving ability was affected at the time you offended. You offended because you were a member of the Comancheros motorcycle club where Saracevic was the treasurer and because you were motivated to earn money.

44I accept that your current mental state of an adjustment disorder and depression may make the serving of a term of imprisonment more difficult for you and I have taken this into account in arriving at my sentence.

45I also received into evidence a psychological report from Mr Bernard Healey, which I marked as Exhibit 2. He has treated you on a number of occasions in October and November 2015 and that treatment is ongoing. His report shows that you are a person of average intelligence and that you suffer from depression. One of the matters raised by Mr Healey’s report is that you have accumulated $25,459 for civic compliance fines and that you are yet to pay fines imposed by the courts in 2012 and 2015. Whilst the failure to pay the fines may reflect your parlous financial state, a number of the fines that can be attributed to you have been accumulated because of your total disregard for the traffic law.

46I received into evidence a number of references from family, friends and acquaintances and people who have known you and your parents for many years.  Your sister speaks highly of you and says that your offending is out of character. She described you as being a good man with good morals and values.  Elizabeth Clegg also speaks highly of you and says you have expressed remorse to her for your offending.  Neville Robinson also says you are remorseful.  Michael Prowse is a police officer who knows your family well.  His reference does not pull any punches.  He makes the point you must be accountable for your own actions.  He believes you have good chances to make a full rehabilitation. In passing sentence, I have taken these references fully into account. I accept you come from a good family, but you lost your way when you became involved with the Comancheros. This happened before your financial demise, which has affected your mental state and exacerbated the fall from grace which began when you joined with and followed the Comancheros.

47Because the whole plea on your behalf was aimed at securing a disposition in the form of a Community Corrections Order, I was somewhat surprised when the assessment outcome report was received, which shows that you would not be prepared to consent to such an outcome. You apparently did not consent because of your financial position, taking the view that subjecting yourself to another Community Corrections Order would have financial strains for your family and you prefer to put an end to the matter by serving a term of imprisonment and getting the sentence out of the way.

48A Court cannot impose a Community Corrections Order without the consent of the person being sentenced.

49I made the assessment outcome report available to your lawyers and invited further submissions. In response, I received a lengthy letter from your father and a further report from Mr Healey. In passing sentence I have taken all of the evidence referred to in those further documents into account.

50The sentence imposed for offending of this kind must properly reflect general deterrence and must appropriately denounce the offending.  It must also have regard to your prospects of rehabilitation, which I regard as only fair and must reflect just punishment.

51Could you please stand Mr Balsillie?

52On the charge of extortion you are convicted and sentenced to a term of imprisonment of nine months.

53On the summary charge of possession of ammunition you are convicted and fined $500.

54On the Commonwealth charge of possess counterfeit money you are convicted and sentenced to a term of imprisonment of three months.

55I declare that there has been 24 days presentence detention and that 24 days be reckoned as time already served under the sentences passed this day and be deducted administratively.

56The sentence imposed on the Commonwealth charge of possession of counterfeit money shall commence this day, at the same time as the sentence imposed on the State charge of extortion, making a total effective sentence of nine months' imprisonment.

57Pursuant to section 6 AAA of the Sentencing Act 1981 I state that had it not been for your pleas of guilty to the charges I would have imposed a total effective sentence of two years, with a non-parole period of 18 months.

58There have been applications for a forensic sample order and disposal orders, which were not opposed and which I will sign.  The reasons for making the forensic sample order are explained in the order.  Are there any matters arising out of that?

59MS PIEKUSIS:  No, only Your Honour, when Your Honour revises Your Honour's remarks, the maximum penalty for the summary offence is not 400 penalty units, it's 40.

60HIS HONOUR:  I beg your pardon.  Is that right?

61MS PIEKUSIS:  Yes.

62HIS HONOUR:  What's the section?

63MS PIEKUSIS:  One hundred and twenty-four.

64HIS HONOUR:  I correct my sentencing remarks.  The maximum penalty for the summary offence is 40 penalty units.  Thank you for bringing that to my attention Ms Piekusis.

65MR LANGTON:  Your Honour, perhaps I'll seek a stay of three months in respect of the fine?

66HIS HONOUR:  Yes, I will grant a stay of three months.  Mr Balsillie, the law requires me to explain to you that I have made what has called a forensic sample order, which means that whilst you are in custody, a member of the police force is permitted to approach you to take a forensic sample from you, which is a - really just a swab from your mouth.  Do you understand?

67PRISONER:  Yes Your Honour.

68HIS HONOUR:  And you will be obliged to comply with that request.

69PRISONER:  Yes.

70HIS HONOUR:  Thank you.  Would you take Mr Balsillie into custody please?  Could you adjourn the court please Mick until ten o'clock tomorrow morning?  Ten o'clock tomorrow morning.

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