Director of Public Prosecutions v Bowen

[2023] VCC 48

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Restricted
 Suitable for Publication

Case No. CR-22-01052

DIRECTOR OF PUBLIC PROSECUTIONS

v

TAYLOR JANE BOWEN

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	17 January 2023
DATE OF SENTENCE:	23 January 2023
CASE MAY BE CITED AS:	DPP v Bowen
MEDIUM NEUTRAL CITATION:	[2023] VCC 48

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords: One charge of blackmail – 23 year old female offender who was working for an escort agency as a sex worker clandestinely videoed male victim at his home while they were having sex and ascertained his full name, occupation and place of work as well as that of his wife – offender extracted four still photographs from the video and threatened the victim that unless he gave her $100,000 she would send the photographs to his family, friends and business associates – offender had no prior or subsequent contact with the criminal justice system and had a troubled mental health history relating to an eating disorder, anxiety and depression, suicidal ideation and autism spectrum disorder – offender had discontinued her antidepressant medication some months prior to the offending and had become addicted to cannabis – minimal supports available to the offender at the time of the offending – early plea of guilty coupled with remorse – significant mitigatory steps by way of drug rehabilitation, education and employment – s6AAA: 18 months imprisonment with a non-parole period of 9 months

Legislation Cited:      Confiscation Act 1997; Sentencing Act 1991

Cases Cited:Worboyes v R [2021] VSCA 169

Sentence:                  Community Corrections Order with a period of two years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A Dearman	Solicitor for the Director of Public Prosecutions
For the offender	Mr J Portelli	David Tamanika & Associates

HER HONOUR:

1Taylor Jane Bowen, you have pleaded guilty to one charge of blackmail which carries a maximum penalty of 15 years’ imprisonment. 

2The circumstances of your offending are detailed in the summary of prosecution opening for plea.[1]  The offence of blackmail was committed over a period of approximately five weeks between 9 June and 15 July 2021.  At that time you were working as a sex worker for Paramour Escort Agency.  Your victim, Damien Lucas,[2] engaged your services for the first time on 12 May 2021.  You went to your victim’s home and provided sexual services to him.  You told him that the escort agency takes half of the fee which is charged for your services and suggested that you and he exchange phone numbers so he could contact you directly and you would get to keep all the money. 

[1]Exhibit “A”

[2]A pseudonym

3He accepted your suggestion and contacted you again on 25 May 2021. You agreed to come to his house the next day, which you did, and again provided sexual services to him.  Your victim noticed that you were looking at family photos and work on his desk while you were at his home.  On 8 June 2021, you contacted your victim and you arranged to meet the following day at a train station.  The next day, when the victim drove up to the station in his car, you walked to the passenger side of his vehicle and stated that you had done some research on him and knew his real name and occupation and who his family were and the name of his supervisor in his professional occupation.  You revealed that you knew where his wife worked, as well as other information about his professional work. 

4You then showed him a folder containing compromising photographs of him with you whilst naked which he had no recollection of you taking.  You told him that, unless within two weeks he gave you $100,000, you would send the photos to his family, friends and business associates.  You threatened him that you had a boyfriend who would “get him” and that he should give you the money if he did not want to ruin his life and family and be a social outcast.  You claimed that your boyfriend was protecting you and stated that, if your victim did not pay in two weeks’ time and it took him two months, then the sum required would be $200,000, or, if it took him three months, the sum required would be $300,000.  Your victim agreed to get $100,000 within two months.  You told him that you had photos on a USB, your phone and your laptop.

5Subsequently, your victim texted you, attempting to negotiate with you as he was unable to find $100,000 at such short notice.  On 5 July 2021 your victim made a pretext call to you which was recorded.  In this call you stated that you would give him more time to pay, but you wanted the money in 20% instalments.  Later you agreed to collect $10,000 on 16 July 2021.

6On 14 July 2021, your victim commenced another pretext conversation via SMS, but the two of you were unable to agree on a suitable time and place to exchange the money.  You then called your victim’s mobile phone. The police were recording the conversation in which you made further demands for money accompanied by threats to expose the victim’s infidelity to his wife and family and further references to digital images of your victim held by you.  Ultimately, it was agreed that you would meet your victim at a train station the following day in order for him to pay $10,000 cash to you.

7On 15 July 2021, as you approached your victim’s car, you were arrested by police and taken to Moorabbin Police Station.  There you admitted in a recorded interview that you knew your victim.  Police executed a search warrant at your home address on that day, but did not locate any photographs of your victim either in hard copy or electronic form. I here interpolate that, at the plea hearing at the request of the court, you gave evidence on oath that you had taken one video on your mobile phone from which you had extracted four still photographs which had been in the folder which you had shown to your victim. You stated that you had lied to him when you told him that you had digital images of him on a USB and your laptop. You told the court that you had destroyed the video and the still photographs printed from it and had no further images of your victim. In their search of your home, police did seize a clear zip lock bag containing cannabis.

8Subsequent to being charged with the offence of blackmail, on 13 August 2021 you sent your victim a text message stating that you had faced hardship as a result of the charge, apologising for your conduct and asking your victim whether he would consider dropping the charge against you and forgiving you for your mistakes.

9You are presently aged 24 years having been born on 21 February 1998.  You come before the court with no prior or subsequent criminal history and no matters pending. 

10On 15 June 2022 at a committal mention the matter proceeded by way of straight hand-up brief and you indicated your intention to plead guilty to the charge at an early stage.

11In a plea on your behalf by Mr Portelli, the court was told that you were born into a family with one older sister and that your parents separated when you were approximately seven years old.  You apparently had limited contact with your father after he left the family home, but at times stayed with him during school holidays.  On one occasion when you were approximately 11 years old, you were sexually abused by him and never again returned to his home.

12After your parents’ marriage broke up, your mother suffered depression and engaged in alcohol abuse.  She re-partnered when you were approximately 10 years of age.  You felt that her new partner enabled your mother’s excessive drinking to continue.  In the middle years of high school, you were bullied and felt lonely and began experiencing depression and anxiety.  This was diagnosed by your general practitioner when you were in Year 8 and, from that time onwards, you were prescribed antidepressant medication which you took on and off over the remaining period of your time in secondary school. 

13When you were in Year 12, you were physically assaulted by your mother’s partner in the context of you attempting to discuss your mother’s drinking habits with her.  You apparently gave your mother an ultimatum to leave her partner or you would leave home.  Your mother chose her partner over you.  You then went to reside at a crisis accommodation centre whilst still undertaking Year 12 and also worked at a local café.  During this time, you developed an eating disorder.  Notwithstanding these problems you had been elected school captain and did well academically with an enter score of 89.1, which earned you the accolade of “Female Dux” of the school.  You won both academic and accommodation scholarships to study at RMIT.  

14In 2016 you began living on campus and undertaking a public relations course at RMIT.  Your counsel stated that you were sexually assaulted during orientation week, following which you began to engage in self-destructive behaviour.  You deferred your course after completing only the first semester of it and began working as a waitress in a restaurant.  You then moved employment and became a sex worker with Gotham City Brothel in South Melbourne at the age of only 18 years.  You funded a trip to Europe from such work and in 2017, at the age of 19, travelled overseas.  For approximately a year in Europe you engaged in hospitality work on various different luxury yachts for periods of months at a time.  You returned to Australia briefly and then spent two months travelling in Cambodia before returning to live in Melbourne.

15Upon your return to Melbourne, you obtained a job as part of the food and beverage team at the Mantra Hotel on Little Bourke Street, where your sister was also employed.  You had a job as a supervisor.  However, your eating disorder resurfaced during this time and you began attending an anonymous group to help with this.  Your depression became problematic at the same time and you began experiencing suicidal ideation.  By June 2018, you had become mentally unwell with suicidal thoughts, problematic binge eating and depression and had ceased taking your antidepressant medication.  On 24 June 2018, you underwent a voluntary psychiatric admission to Western Hospital, where the clinical notes of the Emergency Department registrar noted that you were 20 years old, suffering from depression and a binge eating disorder and presented as being acutely suicidal and were unsafe at home with no real protective mechanisms.  It was noted that you were socially isolated and felt like you were at “rock bottom”.[3]

[3]Part of Exhibit “2”

16Following your discharge from Western Hospital, you commenced seeing a psychologist, Ms Louise McHutchin at Orygen Health.  Whilst hospitalised, you had been diagnosed (apparently incorrectly) with Borderline Personality Disorder and you were treated at Orygen Health on the basis of this diagnosis.  You recommenced taking the antidepressant fluoxetine.  By September 2018 your mental health had again deteriorated.  You apparently engaged in excessive drinking and then overdosed by taking some 55 tablets of diazepam as well as a quantity of thyroxine.  You were discovered by your sister and admitted again to Western Hospital Emergency Department on 9 September 2018.  The clinical notes made at the time of admission state that this was an impulsive overdose after you had had an argument with a friend whilst intoxicated and you had a number of social stressors, including having lost your job because you were too unwell to attend.  You were assessed as being a moderate to high suicide risk.  It seems that you were discharged two days later because there were no psychiatric inpatient beds available.  You returned home to live with your sister, but according to a reference from your sister, you were unable to access the support that you needed and you and your sister were unable to continue to live harmoniously together, so you moved out at the end of 2018.[4]

[4]Reference of Shauney Bowen, sister of offender, dated 31 May 2022, part of Exhibit “3”.

17After leaving the supportive environment of your sister’s home, you obtained a job in the hospitality industry at a bar and restaurant called “Vault” in Yarraville for approximately 12 months.  You then worked at a yoga studio in Moonee Ponds for a couple of months, but, during this time, it seems that you again ceased taking your antidepressant medication Fluoxetine and developed a heavy dependence upon cannabis.  You then returned to work in the sex industry, predominantly for Gotham City Brothel, where you had previously worked, but also took on work with Paramour Escort Agency.  

18Your victim was one of your first clients with that Escort Agency.  The court was told that your offending against him took place at a time when you had minimal support and had not taken your antidepressant medication for some six to eight months and were addicted to cannabis. 

19You personally told the court that you were smoking cannabis “all day every day” and it completely consumed your life.  In a letter to the court dated 16 January 2023,[5] you stated that, at the time of offending, you were living alone and were solely dependent upon what you earned as a sex worker and were struggling to maintain a balance between what you considered your “real life” and “moonlighting” in that industry which did not provide you with any personal support and was isolating, however it enabled you to work around your mood fluctuations and mental health instability, as some days you were unable to get out of bed.  You stated that you hoped that your scheme of blackmailing your victim would provide you with enough financial stability to leave the sex industry, but it brings you “a tremendous feeling of self-disgust to imagine it now”.  You stated that you recently listened to the pretext phone calls with your victim which were recorded by police and you “find it difficult to identify with the person speaking to him on the phone.”  You further stated that you have had much time to reflect on your behaviour and change it and that you are “truly thankful this all occurred as an intervention from (sic) the downward spiral [your] life was heading in.  When in [you] were arrested [you] received the very necessary wakeup call [you] needed to change [your] life.  [You] have since invested all of [your] resources and energy into [your] rehabilitation, and building a strong mental health support network.”

[5]Exhibit “4”

20Tendered at the plea hearing was a report from Dr Aaron Cunningham, forensic psychologist, dated 13 June 2022.[6]  He stated that, although you had been previously diagnosed with a Borderline Personality Disorder, in his opinion the appropriate diagnosis was that of Autism Spectrum Disorder, which is characterised by you having persistent deficits in social communication and social interaction; restricted, repetitive patterns of behaviour, interests or activities; symptoms which have been present since an early developmental period (from approximately 15 years of age); and symptoms which cause clinically significant impairment in social, occupational or other important areas of functioning.

[6]Exhibit “1”

21Dr Cunningham considered that your Autism Spectrum Disorder had contributed to your life instability and life choices, that you were vulnerable in social interactions and that you had experienced trauma which added a layer of emotional distress to your presentation.  He considered that your experience of sexual abuse trauma had contributed to your mindset that you did not want to be taken advantage of by another man and made the poor decision to take revenge on your victim as a symbol of men, whom you perceived to have abused you in the past.  He expressed the opinion that your Autism Spectrum Disorder contributed to your unstable lifestyle and decision to enter sex work, as well as to your obsession with being taken advantage of and inability to consider the bigger picture of the consequences of your actions. 

22In sentencing you, I take into account your mental health history and undiagnosed Autism Spectrum Disorder, but note that at the time of the offending you were heavily addicted to cannabis.  Your counsel appropriately observed that, in those circumstances, you could not satisfy principle one in Verdins case, albeit that your mental health history is an important part of your personal circumstances.

23Ms Bowen, your conduct for which I must sentence you was of a serious antisocial nature and to some extent premeditated as evidenced by you surreptitiously having taken the video of your victim and gathered information somewhat about his personal affairs whilst at his home.  In a Victim Impact Statement made on 13 January 2023, which was tendered at the plea hearing,[7] Damian Lucas outlined the tumult into which his life was thrown by your threats. These included an inability to sleep and great anxiety about how he was to meet your demand to pay hundreds of thousands of dollars and the fear that he would lose everything that he had worked for in life – his family, his personal, social and professional life – which meant so much to him.  He even ceased his current employment for fear of the embarrassment you would cause.  He has suffered adverse financial consequences and grave emotional distress, which caused him to consult with medical professionals and attend a local hospital, but he felt unable to tell health professionals all the information that was causing distress to him.  He developed widespread bodily pain for which he has been prescribed medication and has become socially isolated and withdrawn.  The stress described by your victim and its unpleasant consequences are easy to understand given that you had made him aware of just how much information you had gathered from your research about his private and professional life, and he genuinely believed that you would compromise his relationships by sending the photos you had taken. 

[7]Exhibit “B”

24In this wonderful country of ours, Ms Bowen, we have a strong rule of law. The interference with the right a citizen to live his life without menacing threats like the ones you made, is taken very seriously as reflected by the maximum penalty of 15 years’ imprisonment which applies to the offence.  Generally speaking a term of imprisonment would be seriously considered as a sentence for nasty behaviour like yours.  However, there are number of factors which lead me to believe that the sentence of last resort should not be imposed in your case.  They are as follows:

(1)     You were relatively young (23 years of age) when you committed this offence.

(2)     You have not previously or subsequently committed any criminal offending.

(3)     I am satisfied on the balance of probabilities that you were vulnerable and isolated at the time of committing the offence and were suffering unstable mental health, which had been a problem on and off since you were aged approximately 15 years.

(4)     You pleaded guilty to the offence at an early stage.  This has utilitarian value and has spared the victim having to give evidence and spared the state the cost of a trial.  As the plea was entered at a time when there was still disruption to trials in the State of Victoria due to the Covid-19 pandemic and attendant restrictions, there is added utilitarian value which should be placed on your plea.[8]

(5)     Since the commission of the offence you have taken substantial rehabilitative steps.  These have included the following:

(i)ceasing to work in the sex industry;

(ii)undergoing counselling and treatment for your addiction to cannabis through Addiction Coaching Australia since 27 September 2022 and at the date of the plea hearing it was 100 days since you had used cannabis.  Your counsel stated that you had funded this yourself which, to date, had cost approximately $5,500 and you are incurring an ongoing cost of $250 per week for counselling.  The letter from Addiction Coaching Australia which was tendered to the court[9] speaks of your active participation and enthusiasm and ongoing commitment to abstain from cannabis.

[8]Worboyes v R [2021] VSCA 169

[9]Exhibit “5”

(6)     You have applied yourself assiduously to obtaining employment from August 2021.  Shortly after your arrest, you obtained employment as a personal assistant to a tax economist, John Donaldson, for whom you worked for some 20 to 25 hours per week, earning approximately $800 net per week until the date of his retirement on 13 January 2023.  In addition, from August 2022, you obtained employment as a fitness coach with “Rumble Boxing” in South Melbourne for some 25 to 30 hours per week, where you continue to be employed earning approximately $750 to $900 per week. 

(7)     You have reconnected with your family.  Your mother provided a reference to the court stating that, since you had been arrested for this offence, she had become fully aware of how unstable you had become and was doing all that she could to support you.  Similarly, your older sister, Shauney, provided a reference that she and other friends of the family (two of whom also wrote references to the court) are dedicated to supporting you to help you through your rehabilitation.  The authors of these references, in their different ways, speak very positively about your remorse, your journey of self-reflection and the gains that you have made to get your life back on track.[10]  I am satisfied that your plea of guilty is remorseful.

[10]See Exhibit “3”

25In light of the above, I consider that your situation, now, is markedly different from what it was at the time of committing this serious offending, and that there are significant proactive factors supporting your path of rehabilitation.  In this regard, I note that Dr Cunningham has opined that you do not present as having an antisocial mindset and, if you continue to work towards rehabilitation and stability, this is likely to reduce your risk of re-offending.

26Your counsel urged that a Community Correction Order is an appropriate disposition in this case.  The prosecution has accepted that your plea of guilty is remorseful and acknowledged the substantial steps taken voluntarily by you in order to rehabilitate yourself, and concedes that a disposition by way of conviction and Community Correction Order is within range.

27You have been assessed as suitable for a Community Correction Order.  I note that you were assessed by a registered psychiatric nurse, Mia Cobic who did not recommend a mental health assessment and treatment condition as part of the order, as you currently have a general practitioner, Dr Alison Richards, at Armstrong Medical Centre; a psychotherapist, Monica Vogt, whom you see once per week online; as well as a somatic therapist, Ben Tannahill, whom you see fortnightly online.

28To the best of my recollection, neither of the two latter therapists were mentioned in the course of the plea hearing.  When I asked about your current general practitioner, you were somewhat vague in indicating that Dr Alison Richards was someone whom you had first seen about two months ago and was not the person who was currently prescribing Fluoxetine for you.  Also, you were unable to clarify the qualifications of those from Addiction Coaching Australia, who are providing private online coaching to you, other than to say that they are not qualified psychologists and that one was a “mental health professional” and “qualified in addiction counselling”.

29Although I consider that you do now have far greater insight into your mental health needs, the fact is that you have significant unaddressed trauma in your past, you are still a vulnerable person and have had years of instability with many downturns in your mental health since you left school in 2015.  You have a history of ceasing anti-depressant medication and periods of not engaging with any mental health support.  Given that your rehabilitative gains are relatively recent in nature, I do consider that you should be supervised on your Community Correction Order and I do propose to make conditions relating to ongoing mental health treatment and drug rehabilitation, as well as unpaid community work as part of the punitive aspect of the order.

30I consider it imperative that your medication status be regularly reviewed, and the extent of your cannabis addiction was such that there needs to be some independent monitoring to ensure that you have not relapsed into cannabis abuse, which was clearly at a significant level at the time of offending. 

31I note that Dr Aaron Cunningham has expressed the view that you would benefit from continuing your counselling aimed at improving your emotional regulation and decision-making skills.  As an experienced psychologist, I accept his view after careful assessment over that of the psychiatric nurse.  Of course, if you have medical or mental health professionals with whom you have a rapport, it is desirable that you continue to attend such practitioners and this fulfil the terms of the order that I propose to make.

32As I have said, I also propose to order some unpaid community work as part of the punitive aspect of the sentencing disposition.  The office of Corrections will be advised by the court that 50 hours which are proven to have been undertaken by you in rehabilitative therapy, either in relation to your mental health or drug issues, may be debited against the number of hours of community work which you will be obliged to perform under this order.

33On one charge of blackmail, you are convicted and sentenced to undertake a Community Correction Order for a period of two years.

34The terms of the order are as follows:

(a)   that you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;

(b)   that you must comply with any obligation or requirement prescribed by the regulation;

(c)   that you must report to and receive visits from the Secretary during the period of the order;

(d)   that you must report to the Corrections office specified in the order within two clear working days after the order coming into force;

(e)   you must notify the Secretary or his delegate of any change of address or employment within two clear working days after the change;

(f)    you must not leave Victoria, except with the permission of the Secretary or his delegate given either generally or in relation to a particular case;

(g)   you must comply with any direction given by the Secretary or his delegate that is necessary to ensure that you comply with the order.

35The conditions attaching to the order are as follows:

(a)   that you undertake 200 hours of unpaid community work;

(b)   that you undergo assessment and treatment for drug abuse or dependency, including providing urine samples for analysis on a date to be specified at random by your Community Corrections case manager at two monthly intervals at least;

(c)   that you undergo mental health assessment and treatment, including regular review of your medication and the need for psychological counselling;

(d)   that you be supervised, monitored and managed as directed by the Secretary.

36Ms Bowen, as explained to you at the conclusion of the plea hearing, I am not able to make such an order unless you consent to it.  Do you consent to an order with the terms and conditions that I have just mentioned?

37Offender:  Yes, Your Honour.

38Also as explained to you at the conclusion of the plea hearing, if you do not comply with this order, then you will be subject to proceedings for contravening it and brought back to court for such contravention.  Contravention of a Community Correction Order is, in itself, a criminal offence which carries a maximum penalty of three months’ imprisonment.  In the event that you are brought back before the court for contravening the order, by either not complying with the conditions or further offending, you face the risk of the order being set aside and you being resentenced to an alternative disposition, which is likely to be a term of imprisonment.  Do you understand this?

39Offender:  Yes, Your Honour.

40Upon your conviction of a Schedule 1 offence, namely blackmail, the court orders pursuant to s33(1) of the Confiscation Act 1997 that one mobile phone referred to in the schedule be forfeited to the Minister.

41Upon you being convicted of a Schedule 1 offence, namely blackmail, and upon being satisfied that the property referred to in the schedule, namely cannabis, is a drug of dependence or substance that was used in or in connection with the commission of the offence, the court orders pursuant to s78(1) of the Confiscation Act that such property be forfeited to the State and, further, that it placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.

42Pursuant to s6AAA of the Sentencing Act 1991, I state that, had it not been for your plea of guilty, the total effective sentence would have been 18 months’ imprisonment with a non-parole period of nine months.