Director of Public Prosecutions v Barker

[2017] VCC 2020

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

AT MILDURA
CRIMINAL JURISDICTION

CR-16-01394

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMUEL BARKER

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Mildura
DATE OF HEARING:	7 December 2017
DATE OF SENTENCE:	7 December 2017
CASE MAY BE CITED AS:	DPP v Barker
MEDIUM NEUTRAL CITATION:	[2017] VCC 2020

REASONS FOR SENTENCE
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Subject:         Criminal law – sentencing – blackmail.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	John Cain, Solicitor for Public Prosecutions
For the Accused	Ms J. Clark	Martin Irwin & Richards Lawyers

HER HONOUR:

1Samuel Barker, you have pleaded guilty before me to one charge of blackmail.  That is a serious charge, and that is reflected in the maximum penalty prescribed by Parliament, which is 15 years' imprisonment.

2I shall proceed to sentence you on the basis of the Crown opening.

3You accept that the offending is very serious, and would have been distressing for the victim.  I note that the victim was asked to complete a victim impact statement, but she has declined.

4The context to the offending is that you had accumulated a large drug debt, and you were under pressure to pay that debt.  You had previously been in a relationship with the victim, and after your relationship ended, you both came to an agreement with respect to payment of $5,000, which you said she owed you for some expenses that were incurred when you were together as a couple.  She agreed to pay you the monies to keep the peace, and arrangements were put in place that she would pay $500 a fortnight until the debt was paid.  One payment was made. 

5Your relationship then rekindled, therefore the agreement lapsed.  However, when the relationship ended for good, you renewed the request for her to pay the monies, and the amount of monies to be repaid was increased to $10,000.

6Over time, she paid you $9,000.  In Easter 2015, she decided not to pay you any more money after having a discussion with her mother.

7Charge 1, blackmail, relates to a series of text messages sent by you on 31 May 2015, 2 and 3 June 2015, and over that time you demanded $11,800 be paid to you, and you made several threats to kill Ms Attwell’s dog if the monies were not paid.

8Police investigated the matter, and you were interviewed on 9 July 2015.  You were charged on summons on 29 February 2016.  You were unrepresented at committal mention stage, and ultimately the matter proceeded by way of straight hand-up brief, with a plea of not guilty being entered on 9 August 2016.

9Thereafter there were negotiations, and the matter was resolved during the August 2017 Mildura circuit court sittings of this court. 

10You have no prior criminal history, there is one subsequent matter.  You were dealt with on 7 October 2015 at Mildura Magistrates' Court.  You were convicted of possession of methylamphetamine, trafficking methamphetamine and use methamphetamine.  You were convicted, and the matter was adjourned on the basis of a two-year undertaking on condition that you pay $7,500 to the court fund. 

11I have had regard to the prosecution opening, and I will sentence you on the basis of that material.  There was no real issue taken in respect to the contents of the opening during the course of the plea hearing.

12You are now aged 32, you were 30 at the time of the offending.  You are a long-term resident of Mildura.  Your parents were involved in the establishment of a business known as GBC Motors.  You left school at about age 14 to take up an apprenticeship that you completed through the family business.  You are qualified in light and heavy petrol diesel mechanics. 

13You worked in the family business for six years then left the business to broaden your work experience.  You undertook various positions between the years 2005 to 2010, subcontracting doing drilling work in mines at various locations throughout Australia.  You returned to the family business in 2011. Because of the drought and the GFC, the business was severely impacted, which ultimately forced the business into receivership in February 2014.

14Thereafter, your life took a turn for the worse because of your unemployment.  You started using the drug ice, or methylamphetamines, and your life spiralled out of control, leading to the abhorrent behaviour including the offending behaviour and the offending the subject of the subsequent charges.

15However, as a result of the charges that were laid on 9 July 2015 your family intervened, and with their support you have been able to rid yourself of drugs, and you have been drug-free since mid-2015.  Your life has stabilised, you are currently living with your parents, and you are employed full-time with Global Rotor Motoring. You have held the position there for eight months, with the potential to stay there on a full-time basis.

16Currently you are suffering with fractured ribs as a result of a work injury that occurred on 30 November 2017. 

17In formulating the appropriate sentence, I have had regard to the matters put in mitigation.  I accept that you entered a plea of guilty at an early stage.  There is real utility in the plea.  You have saved the State the time and expense of a trial, and also the victim and other witnesses have not been required to give evidence at trial.  I accept that the plea of guilty does represent acceptance of responsibility on your behalf.  You have facilitated justice, and your sentence with be discounted accordingly.

18I also accept that you now demonstrate appropriate remorse, that you are disappointed in yourself with respect to the way in which your life travelled when you spiralled into using drugs and then offending.

19You are entitled to rely on your good character prior to the offending.  You are a man of some 30 years of age, who had no prior convictions.  You have excellent rehabilitation prospects in my view, having regard to the fact that you are now drug-free.  You have family who are very supportive, full-time employment, and you have ceased all drug use.  Importantly, you have had no contact with the victim since this matter happened. 

20You have had this matter hanging over your head for some considerable time, and I have taken that into account.  The delay in the prosecution of this matter is largely not of your doing, it was due to matters outside your control.  I noted that during the delay, you took productive steps toward your ultimate rehabilitation, so I want to encourage you further in remaining abstinent from drugs by convicting you of the offence of blackmail, and I will be placing you on a Community Correction Order with an operational period of 12 months, with the conditions that you undertake 100 hours unpaid community work over that period.

21The Community Correction Order is subject to the usual mandatory terms that have been explained to you in detail, and you have agreed that you understand the effects and conditions of the order, and you consent to it being made.

22In formulating this as the appropriate sentence, I have had regard to the guideline sentence in Boulton v The Queen[1], and the fact that sentencing courts now do have Community Correction Orders available to them, and that such an order can be punitive, achieve deterrence, and may be suitable even in cases of relatively serious offences which might otherwise have attracted a medium term of imprisonment.

[1][2014] VSCA 342.

23I make the following declaration pursuant to s.6AAA, but for your plea of guilty I would have convicted you and placed you on a Community Correction Order of three years' duration, with supervision and 250 hours community work.

24I think that completes the matter, there are no other ancillary orders. I will give you the Community Correction Order.  Could you ask your client to sign that please?

25All right, so a copy of that will be made, and once it is given to you, you will be free to go.  We can adjourn.

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