Director of Public Prosecutions v Brooking
[2018] VCC 1618
•27 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00966
Indictment No. J10723753
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STACEY BROOKING |
---
JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 26 September 2018 | |
DATE OF SENTENCE: | 27 September 2018 | |
CASE MAY BE CITED AS: | DPP v Brooking | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1618 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: One charge of blackmail – early and remorseful plea of guilty – discount on sentence for giving undertaking to assist law enforcement authorities re prosecution of an offence by a co-accused – convicted and sentenced to be imprisoned for 20 months with a non-parole period of 10 months
Legislation Cited: Sentencing Act 1991; Crimes Act 1958
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N Burnett | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr P McClure | Balmer and Associates |
HER HONOUR:
1 Stacey Brooking, you have pleaded guilty to one charge of blackmail, which carries a maximum penalty of 15 years’ imprisonment.
2 The circumstances of your offending are summarised in the Crown opening on plea (Exhibit “A”). These circumstances are, also, set out in my sentencing remarks at the time I passed sentence on your co-offender, Khan Che Pera, on 12 December 2017. I append a copy of those sentencing remarks to these sentencing remarks.
3 You and your co-accused, Mr Pera and another co-accused, Ms Treena Kingi, had travelled specifically from Queensland in order to try and get hold of money belonging to your victim whom Ms Kingi had met him some years previously. Ms Kingi held beliefs about his possession of money, as he was a bookmaker. In particular, she believed that he had money hidden in his backyard. Accordingly, after travelling from Queensland, on 7 April 2017, while you waited nearby as a lookout, Mr Pera and Ms Kingi entered the victim’s backyard, with a view to looking for and digging up the suspected hidden money. In entering the backyard, your two co-accused damaged some fence posts. They, unlike yourself, have been charged with criminal damage relating to the fence posts.
4 After failing to find the money, the three of you hatched an extraordinarily brazen scheme that you and Mr Pera would attend the victim’s home and purport to be private investigators and debt collectors with Racing Victoria. Ms Kingi drove you there. You accompanied your co-accused, Mr Pera, to the victim’s front door. Mr Pera made an allegation that the victim was laundering money, which he had buried in his back yard, and demanded the money with a threat to the effect that “You can do it my way or your way”. The victim left you and Mr Pera at his front door. He went to get his mobile phone in order to call police. Meanwhile, the two of you walked away. Soon thereafter, there was a series of nine phone calls made to the victim’s home phone. The first two of those nine calls were made from your mobile phone. The caller who made the first call immediately hung up. Then, another call was made, and the victim erroneously believed that he recognised your voice. The prosecution concedes, in its amended opening, that this second call was made by Ms Kingi, who claimed to be a person called “Shelly” who, the previous evening, had left her purse at the Cranbourne races, where the victim had been working. Thereafter, between 9.39am and 11.25am, Mr Pera made seven phone calls of a menacing and intimidating nature to the victim, initially demanding $300,000.
5 Mr Pera’s calls threatened to expose the victim for money-laundering, of which he was totally innocent, and to put him in prison, as well as threatening his family and his livelihood. The calls included a threat to “fuckin turn your whole world upside down in one fucking phone call”, alleged that “I’ve got people watching the house” and that there were “polaroids … you’ve been watched for the last 6 months to a year” and a threat that, if the victim did not cooperate, “well, fuckin’ kiss your family and everything else goodbye”. It included a demand that the victim meet the caller at a certain place in half an hour otherwise “everything you’ve ever worked for, mate, will be taken away from you”. The final call threatened “do what I ask or I’m pointing these guns in your direction … don’t say I didn’t warn you”. So afraid was the victim, that even after he had telephoned police, who recorded the calls, he and his family moved out of their home for a week, into a motel, and he was unable to attend his employment during that period.
6 In sentencing Mr Pera, I referred to the offending conduct as brazen and intimidating. You accompanied and supported Mr Pera as he stood at the victim’s front door, angrily yelling at him in a frightening fashion, made all the more frightening by the fact that Mr Pera is a large and powerful build.
7 In sentencing Mr Pera, I made mention of the fact that this was unsophisticated offending, in that both you and he were captured on CCTV footage as you left the victim’s home. Also your own mobile telephones were used to make the calls to him. Police managed to track down your identity this way and, ultimately, arrested Mr Pera in Queensland on 26 May 2017. By this stage, you had returned to New Zealand, which is your country of origin. You were ultimately arrested in New Zealand on 16 March 2018 and extradited to Australia on 17 March 2018. On 21 March 2018, a filing hearing was held and, by the date of the committal mention on 8 May 2018, you had indicated an intention to plead guilty.
8 When interviewed by police in Christchurch on 16 March 2018, you made admissions to the offending. In your Record of Interview, you implicated Ms Treena Kingi in the offending. On the following day, namely, 17 March 2018, you made a statement to police setting out the circumstances of the offending. You had indicated to police that you were willing to give evidence against Ms Kingi. Accordingly, at the plea hearing before me, you took an affirmation to tell the truth and affirmed that both your Record of Interview and your statement to police were true and correct. You identified your signature on the statement, together with the acknowledgement that you made the statement in the belief that a person making a false statement, in the circumstances, is liable to the penalties of perjury. You undertook to give evidence in accordance with your statement and your Record of Interview and acknowledged that, in the event that you did not honour that undertaking, you were liable to be re-sentenced accordingly.
9 You are presently aged 33 years, having been born on 14 May 1985. In a plea on your behalf by Mr McClure, the Court was told that you were born in Christchurch, New Zealand. You are the oldest of five children. Your father committed suicide when you were very young. You were reared by your mother, alone, and exposed to violence because of family associations with local gangs. Your mother was often affected by drugs and alcohol. You were forced to leave school at around the age of 12 in order to take on a parenting role in relation to your younger siblings.
10 In your early twenties you had a son (currently aged 11 years) with one partner and, then, another son (currently aged 8 years) to another partner. Neither of the fathers of your children have assisted in their upbringing in any meaningful way.
11 You have been a drug abuser since the age of 15, having been exposed to drug use due to your family’s association with Christchurch gangs. From age 15 you were smoking methylamphetamine regularly. You have no employment history of any significance.
12 In or about 2005, you moved to Queensland with your children. It was there that you met your co-accused, Mr Pera, with whom you formed a relationship only some three weeks prior to this offending. You returned to Queensland after the offending and, shortly thereafter, on 9 May 2017, you left Australia and returned to live in New Zealand, taking your two children with you.
13 You come before the Court with a fairly lengthy criminal history in Queensland, dating from August 2006. Your offending relates primarily to possession of drugs and equipment used in association with the taking of drugs, repeated unlicensed or disqualified driving or driving an unregistered vehicle. However, there are a number of offences which are of a dishonest nature. These included two convictions for possessing tainted property on 3 July 2013, unauthorised dealing with shop goods (maximum $150) on 30 December 2009 and, in 2007, three offences of unlawful use of a registration label or plate or certificate and, also, receiving stolen property. You appear to have shown scant regard for the law and have a number of convictions for contravening a direction or requirement (which apparently relates to your failure to provide fingerprints, as directed, on some seven occasions), and have never held a licence to drive a motor vehicle. All dispositions in the past have comprised fines, with the exception of two sentences in 2012 and 2014 for disqualified driving, for which you were given wholly suspended sentences of imprisonment.
14 Ms Brooking, it would appear that you have had a disadvantaged background and I take that into account. Unhappily, you have gone on to lead a wasted life, to date, and been a very poor role model to your children, who are currently living in New Zealand with your sister. However, I take into account that you have not previously been involved in violence or menacing conduct like this blackmail offence, which is a very serious offence. The Victim Impact Statement made by the victim on 17 October 2017 makes it plain how very afraid he was for himself and his family. Not only did they leave their home and hide in a motel room for one week, but he has had extra security measures installed at his house. These matters, along with loss of a week’s income, occasioned financial loss to your victim, which was a direct consequence of your offending. He and his wife and their teenage child, understandably, suffer ongoing concerns about their safety and feel traumatised by the intimidating conduct associated with the commission of this offence.
15 I accept that your co-accused, Treena Kingi, who knew the victim was the author of the extraordinary plan whereby the three of you deliberately travelled from Queensland to endeavour to find money hidden in the victim’s backyard. When this did not succeed, you apparently all agreed that it would be a good idea to try and extract money from the victim by blackmail. I accept that Ms Kingi drove you and Mr Pera to the victim’s house so that this plan could be carried out. I accept that she kept her distance and left it up to you and Mr Pera to confront the victim because she would have been recognised by him.
16 As I have commented, it was unsophisticated offending and not particularly well planned, and the identity of yourself and Mr Pera was easily tracked by CCTV footage near your victim’s home and by virtue of the fact that your own mobile telephones were used. However, although the prosecution has accepted that there is no evidence that you personally telephoned the victim, you apparently made your mobile phone available for Ms Kingi to use to ring the victim. Notwithstanding its lack of sophistication, this offending still had a terrifying effect on the victim and his family, who could have had no idea what the capability of Mr Pera or yourself was to carry out the threatened harm. In sentencing you, denunciation of your conduct and general deterrence must be the primary sentencing objectives, along with just punishment. A message must go out to the community that those who try to take the law into their own hands and intimidate others, by making menacing threats and bribes, will meet with appropriate punishment.
17 It has been put on your behalf that the offending is a product of you having been a long-term user of methylamphetamine and your consequent dire financial straits. This, in itself, is not a mitigatory factor. Our community is sick of the antisocial conduct of illicit drug users. Indeed, the bizarre nature of the allegations made to your victim, and the persistent and insistent threats, were all the more terrifying because the victim could not comprehend them, or respond to the offending conduct in any rational way.
18 Although you left the country after the commission of the offence, and your counsel conceded that this was to distance yourself from it, once arrested in New Zealand you cooperated with police and made admissions in the Record of Interview on 16 March 2018. You were extradited to Australia to face the charge and pleaded guilty at an early stage, namely, the committal mention date. I accept that you are remorseful for your behaviour, as indicated in your Record of Interview, which acknowledges the stupidity of your offending conduct and its frightening impact upon your victim. Further, the fact that you volunteered to make a statement outlining the role played by Ms Kingi and indicated your preparedness to give an undertaking to give evidence against her, I consider to be further evidence of remorse. Ms Kingi’s committal hearing is listed in the Magistrates’ Court next week, on 2 October 2018. By reason of your early and remorseful plea, you are entitled to a high discount on the sentence which, otherwise, would have been imposed.
19 You are entitled to a further discount by reason of your cooperation with police and your willingness to give evidence against your co-offender. The prosecution has acknowledged that, without your evidence against Ms Kingi, there would have been insufficient evidence to charge her with the offences of criminal damage and blackmail. She had been interviewed on 6 December 2017, but was not charged because police considered there was insufficient evidence to do so. Following your statement made on 17 March 2018, together with an indication that you would be willing to give evidence against Ms Kingi, she was ultimately charged on 18 April 2018.
20 It is well established that a person who is prepared to assist police and give evidence against a co-accused may be entitled to a reduction of the sentence which, otherwise, would have been imposed had such person not given such assistance. There is no set formula for the amount of reduction of an informer’s sentence, which must depend on the circumstances of the particular case. In your particular case, it is apparent that, were it not for your preparedness to make your statement to police and give evidence against Ms Kingi, she would not have been brought to justice for these offences. I have already noted that the offence of blackmail is a serious offence, calling for emphasis upon general deterrence. Thus, there is a need to encourage offenders to inform against other offenders in relation to such crimes. This factor of facilitating the course of justice, together with an acknowledgement that an informer who is serving a custodial sentence is likely to find incarceration more burdensome by virtue of being anxious as to whether other prisoners will become aware that she is an informer, means that this factor should result in a substantial sentencing discount.
21 The Court has been told that, after you returned to New Zealand in May of last year, you determined to try to do something about your long-term drug habit and ceased using methylamphetamine. Somewhat surprisingly, this is said to have happened without medical assistance, in circumstances where you have been an abuser of methylamphetamine for over one-and-a-half decades and, at its worst, had a habit of smoking up to ½ gram each day. Also somewhat surprisingly, it is said that, in part, your motivation to return to New Zealand in May 2017 was related to the fact that the two children of one of your sisters were threatened with being taken into care by Child Services. That threat was said to have arisen by reason of your sister’s drug addiction, yet, the Court is asked to accept that Child Services in New Zealand entrusted the care of those two children to you, another drug addict, who also had the care of your own two children.
22 Very little of this makes sense to me. Your counsel claims that you were somehow shocked into doing something about your drug problem and had been free of methylamphetamine for one week before you left Australia for New Zealand. You claim to have had the assistance of another one of your sisters, who is aged 19 years, in caring for the four children. However, since you were arrested and extradited to Australia, the two children of your other sister have been taken into care by Child Services and your own two children have been left in the care of your 19-year-old sister. It seems that you have been a very poor mother to your two children by reason of your drug abuse and an irresponsible and lawless way of leading your life. They have not known stability, nor the role model of someone leading a decent life and earning an honest lifting. Now they have been left in the care of a teenager, although you claim that you speak to them by telephone once per week. You should be deeply ashamed of yourself in this regard, together with the fact that you obviously did not consider the impact upon your children of the consequences of your offending conduct. However, you are not to be sentenced by me for those consequences.
23 Your counsel stated that, since being remanded in custody, you have remained drug free. You have been doing some work assembling beds and have undertaken a course of some 6 hours in relation to the effects of Ice, together with other courses relating to your psychological wellbeing, namely, managing anxiety and sleep, and prison legal education generally. In addition, you have participated in a number of certificate courses, through Box Hill Institute in workplace safety, hygienic food practices and traffic management. Certificates relating to these various courses were tendered as Exhibit 1. Given the very lengthy history of your drug-abuse problem, I find it difficult to accept the assertion from the bar table based on your instructions that you have been drug free since May of 2017, you are to be given credit for apparently having remained abstinent and applying yourself to rehabilitation by undertaking courses whilst in custody. Although I have difficulty accepting the extent to which you remained abstinent before you were taken into custody, the fact that you are currently abstinent is a factor in your favour. However, it is early days, and one would have to be cautious about your prospects of rehabilitation, given your lengthy history of drug abuse, as indicated by your criminal record.
24 Your counsel abandoned an argument, which was initially contained in his written submissions, that the Court should take into account that, after serving a term of imprisonment here in Australia, you are likely to be deported to New Zealand. In all the circumstances, you would have had the gravest difficulty endeavouring to satisfy a court that your being deported to New Zealand would be a hardship to you. That is where your children are and it is your country of origin and, indeed, you chose to go there to distance yourself from this offending. Hence, should deportation flow from my sentencing order, it could not be a mitigatory factor.
25 Your counsel submitted that your role was a lesser one than your two co-accused. The fact of the matter is that you deliberately accompanied Mr Pera and participated in the plan to impersonate private detectives by brazenly going to the front door of your victim’s house. You stood by and supported Mr Pera in his intimidating behaviour at the front door. Also you were complicit in the series of phone calls later on, in that you gave Ms Kingi your mobile telephone to use, and you stood by while Mr Pera repeatedly telephoned your victim with violent, angry and menacing threats. Further, you have admitted to police in your Record of Interview, that you would have shared in any financial benefit had the blackmail succeeded. As I have said, it was, indeed, brazen and intimidating conduct and has left a lasting legacy of fear and insecurity with your victim and his family. Generally speaking, the principle of parity requires that like offending should result in like sentences. I note that Mr Pera does not have as extensive a criminal history as yourself albeit that he does have a prior history of two charges of making oral threats and two charges of assault relating to family violence matters some years ago in 2009. He has a relative lack of prior offending in recent years, but, like yourself, in spite of a long-term substance abuse problem, did not do anything to address that problem until after the offending. The sketchy nature of the plea material by way of the lack of evidentiary reports referable to what was alleged to be well over a year of abstinence on your part, to my mind, makes your prospects of rehabilitation no better than Mr Pera’s.
26 As I have already stated, this is a serious offence, as indicated by the maximum penalty of 15 years’ imprisonment. Denunciation of your conduct, general deterrence and just punishment, must be the predominant sentencing principles. I do not consider it appropriate to impose a sentence of imprisonment without a non-parole period, as urged by your counsel. However, a central factor which is to be taken into account in your favour, which Mr Pera did not have in his favour, is your undertaking given to the Court to give evidence against your co-accused, Ms Kingi, in accordance with your statement to police and Record of Interview. It is important that the high value of that undertaking, and your more burdensome incarceration by reason of the anxiety that an informer is likely to suffer, be recognised and given effect by a substantial sentencing discount. For this reason, the sentence imposed on the charge of blackmail is substantially less than that imposed in Mr Pera’s case.
27 On one charge of blackmail you are convicted and sentenced to be imprisoned for a period of 1 year and 8 months.
28 I direct that you serve a period of 10 months’ imprisonment before becoming eligible for parole.
29 I declare a period of 195 days’ pre-sentence detention to be time reckoned as already served under the sentence imposed this day.
30 Pursuant to s5(2AB) of the Sentencing Act 1991, I cause to be noted in the records of the Court that the Court has imposed a less severe sentence than it would otherwise have imposed because of an undertaking given by you to assist, after sentencing, law-enforcement authorities in the investigation or prosecution of an offence by Treena Kingi.
31 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your plea of guilty, the total effective sentence would have been 3½ years imprisonment with a non-parole period of 30 months. Obviously, this takes no account of the discount given in relation to your undertaking to assist in the prosecution of your co‑offender, Kingi.
32 Pursuant to s464ZF(2) of the Crimes Act 1958 I order that you undergo a forensic sample for the taking of a scraping from the mouth in accordance with subdivision 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I consider this order to be justified by reason of the seriousness of the circumstances of your offending and the fact that the order is not opposed by you.
33 Ms Brooking, you must understand that if you do not cooperate with police in order to take a sample of saliva from your mouth, then the police are entitled to use reasonable force to obtain such a sample.
---
| A P P E N D I X IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01675
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KHAN CHE PERA |
---
JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 December 2017 | |
DATE OF SENTENCE: | 12 December 2017 | |
CASE MAY BE CITED AS: | DPP v Pera | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1870 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords: One charge of criminal damage and one charge of blackmail – Total Effective Sentence 31 months with Non-Parole period of 16 months.
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Roper | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr L Richter | Robert Stary Lawyers |
HER HONOUR:
Khan Che Pera, you have pleaded guilty to one charge of criminal damage, which carries a maximum penalty of 10 years’ imprisonment. You have also pleaded guilty to one charge of blackmail, which carries a maximum penalty of 15 years’ imprisonment.
2 The circumstances of your offending are summarised in the Crown Opening on Plea (Exhibit “A”). You and your co-offender, Stacey Brooking, were residing in Queensland. You travelled to Victoria for the specific purpose of demanding money from the victim. He and his wife are licensed bookmakers and you claimed to have information that he had up to $1 million buried in his backyard.
3 On 7 April 2017, you attended the victim’s residence. No one was home. You gained entry to the backyard by damaging some fence palings and attempted to locate the buried money without success. (This comprises Charge 1, criminal damage)
4 At approximately 9.20am on Saturday, 8 April 2017 you and your co-accused arrived at the front door of the victim’s home. The door was answered by the victim and his wife’s teenage child. You asked to speak to the victim, who then came to the door. You purported to be private investigators and debt collectors with Racing Victoria. You told the victim that you had information that he was laundering money, which was buried in his backyard, and demanded the money, while making statements to the effect of “you can do it my way or your way”.
5 The victim left you both at the front door in order to get his mobile phone to call police. Meanwhile, the two of you walked away and were captured on a neighbour’s CCTV camera.
6 Shortly afterwards, your co-accused made a call to the victim’s home phone. She made another call at 9.36am and the victim, recognising her voice, told her to call back later and hung up. Between 9.39am and 11.25am, you made a series of seven phone calls to the victim’s home telephone number from your mobile phone. The calls were of a menacing and intimidating nature. They included threats that if the victim did not comply with your demands for money, he would lose everything he had ever cared about. You claimed, “we’ve got enough on you to fuckin’ put you away for the rest of your years” and “turn your whole world upside down in one fucking phone call”.
7 You demanded that he drive to a location, by himself, with the money, claiming that you had people watching the house. You reduced your claim from “half the money that is buried in your backyard” $300,000 to $100,000, claiming “I’m pressed for time and you’re pressed for fucking life. Now if you don’t wanna fucking go away for a holiday you do what I fuckin’ say and I promise you’ll never hear from me again”.
8 You told the victim that he had been watched for the last six months to one year and he had half an hour to do what you said “and if you don’t, well, fuckin’ kiss your family and everything else goodbye”.
9 The calls were persistent and insistent. You told him that if he did not meet you in Flanagan’s underground carpark at the back of the pier in half an hour “you’re fucked, that’s it”. You threatened to ring the Racing Commission, the cops, and, if he was not there in half an hour, “kiss your fuckin’ life goodbye. Everything you’ve ever worked for, mate, will be taken away from you”.
10 In the later calls, you repeated your claim that the victim had “been laundering money for the last fucking eight months” and told him “not to ring the cops”, you “weren’t stupid”, he “had been seen” and “we’ve got photos of you fuckin’ doing it”. You told him to “get your fuckin’ arse down to where I told you to go and bring whatever you’ve got”.
11 In the final call, you stated “I’ve got all the paperwork”, which you said you would give to him in exchange for cash. You followed up with “mate, just do what I ask or I’m pointing these guns in your direction … it doesn’t bother me if you do or you don’t … if you don’t, mate, don’t say I didn’t warn you”.
12 The victim had telephoned police after the initial call made by you and they arrived at the victim’s house at approximately 10.00am. They heard the phone calls between yourself and the victim, which were recorded. The victim’s family were so concerned for their safety, that they moved out of their family home for a period of time, fearful that the threats would be carried out.
13 You and your co-accused returned to Queensland. Police obtained call charge records in relation to your mobile telephone and that of your co-accused. You were ultimately arrested in Queensland on 26 May 2017 and extradited to Victoria. Your co-accused is in New Zealand and is the subject of an extradition application, which is yet to be determined.
14 When interviewed by police, you claimed that a woman called “Trina Kingi” was the “brains” behind this criminal offending. You stated that she and “some bloke called Mitty” had driven you and your co-accused from Queensland, specifically for the purpose of endeavouring to obtain money from the victim. Apparently, she was in debt to someone for approximately $15,000 and she had offered you $10,000 to help her out. You claimed that she was the one who had suggested that you should enter the victim’s backyard and try and look for the money on the evening of Friday, 7 April 2017, and you co-operated even though you told police that you thought it was a stupid idea.
15 You admitted that it was yourself and your co-accused who were captured on CCTV footage leaving the victim’s household on the morning of Saturday, 8 April 2017. You stated that Trina and Stacey had each made a call to the victim’s phone before you made a number of calls, all of which were at the behest of Trina. You stated that you got nervous making the calls and were supposed to have asked for $30,000 not $300,000.
16 You told police that you were unable to remember everything in detail because “to be quite honest with you, it’s a bit hazy coz I was off me fuckin’ guts at the time”.[1] You claimed that they were empty threats and you lacked any means to carry them out. You described the phone calls as being “a bit stupid”.[2]
[1]Answer to Q14 in the Record of Interview
[2]Answer to Q59 in the Record of Interview
17 You agreed with police that the victim and his family would have been quite frightened by the ordeal. You agreed that they did not know who you were or whether you would come back.[3] You stated that you had no access to firearms and that you were meaning to convey that you would take away everything he had ever loved or built with his family, like his house, because he was “in the shit”[4] and that you had not been involved in planning this matter or watching him for several months. You described desperation as being the only reason that you got involved in the offending and described the way in which you had tried to negotiate the value of what you wanted downwards from $300,000 as “pretty pathetic really”.[5]
[3]Answer to Q71-76 in the Record of Interview
[4]Answer to Q100 in the Record of Interview
[5]Answer to Q117 in the Record of Interview
18 You stated that, if you had been the victim, you would have laughed at the demands, but agreed that you could see why he would be scared and react the way he did.[6] You agreed that you were a fairly big build and cut an imposing figure as you started making threats, and that the victim had no way of knowing that they were empty threats.[7]
[6]Answer to Q135-139 in the Record of Interview
[7]Answer to Q141-149 in the Record of Interview
19 You stated that you did not mean the threats to be death threats but rather a threat that he would go to jail for laundering money. You claimed that you were not thinking at the time and got nervous as you were making the call and Trina was telling you what you should say.[8]
[8]Answer to Q165-176 in the Record of Interview
20 You stated that the threat of pointing guns in his direction was “just empty bullshit scare tactics” and stated that “it was fuckin’ stupid and, yeah, if I had the chance to fuckin’ make it right, I’d apologise to Fred face to face, tell him why, and I think he’d be very interested to see exactly who it came from”.[9]
[9]Answer to Q186 & 187 in the Record of Interview
21 You are presently aged 39 years, having been born on 24 October 1978. You have been before the District Court in Invercargill in New Zealand on three occasions. On 24 June 2001 you were convicted of obscenely exposing your person in public and fined $400; on 16 October 2009 you appeared on two charges of making oral threats and two charges of assault relating to family violence matters. On three of the charges you were convicted and sentenced to 200 hours of supervised community work for a period of nine months with special conditions. Subsequently, on 28 May 2010 you were brought before the court for breach of the community work condition and sentenced and convicted to a further 40 hours of community work with a final warning.
22 More recently, in Australia, on 24 June 2015 you came before the Beenleigh Magistrates’ Court in Queensland for possessing dangerous drugs. Without conviction you were fined $1,000.
23 Mr Richter made a plea in mitigation on your behalf. He stated that you are a New Zealand citizen, who has permanent residency of Australia. You suffered a difficult childhood, which was marked by violence from an alcoholic and drug-abusing father and, to some extent, your mother. You witnessed violent assaults by your father upon your mother and, at age 15, were sent to live with an aunt in Brisbane, which brought an end to your schooling. A year later you were returned to New Zealand.
24 Mr Richter said that, from your teenage years, you began abusing alcohol and drugs but for some four years, in New Zealand, had engaged with Alcoholics Anonymous and Narcotics Anonymous and had done quite well, working in various occupations such as fishing and in an abattoir in New Zealand.
25 In or about 2009, a young man, Jason, who had been reared as part of your family and who, ultimately, became your sister’s partner, died in a fishing accident. You had apparently had an argument with him shortly before he went on the fishing trip and have been wracked with guilt and grief ever since. Mr Richter said this destabilised you and provoked a relapse into drug and alcohol abuse, which has endured ever since, and it is a problem for which you have not sought help. Apparently, the domestic violence matters in New Zealand occurred after Jason’s death in 2009 and related to your sister and her new boyfriend.
26 Letters in support of your character were tendered as Exhibit “2”. An aunt provided a letter stating that you were a very special member of the community in Bluff, New Zealand, and she had known you all your life as a delightful and loving character, with a strong sense of loyalty to family, immense leadership qualities, a strong and intelligent boy who had grown into a dedicated and loving family member.
27 Another reference was from Terry Nicholas, who is the manager of an organisation called “Hokonui Runanga” in Invercargill, New Zealand. He stated that he knew you over a number of years while involved with the Runanga youth and elders, and you had valuable skills which had contributed greatly, and you were reliable and generous-hearted and courageous.
28 Your mother also gave a reference, saying that you had suffered through your father’s violence to herself and also to yourself, and that you missed having a father figure around you, but had a special relationship with your maternal grandfather. She said you went to work at an early stage and showed good work habits and had been deeply affected by the loss of Jason, who had been taken into your family, when he died in the fishing accident. She expressed the belief that you have the ability to pull yourself together and that you have good family support and a wide network of friends.
29 I must say that it is difficult to reconcile the attributes referred to in these letters with your appalling, menacing behaviour towards your victim in this case. However, noticeably absent from any of the letters of support is any reference to your drug and alcohol abuse from your teen years, as well as the matters of family violence for which you appeared in the Invercargill District Court.
30 Mr Richter stated that you had moved from New Zealand to Queensland in 2012 and have worked as a scaffolder since that time. There was no material put before the Court concerning your work history, and your counsel was unable to tell me how much income you earned in the last financial year. There seemed to me to be something of a tension between what was put on your behalf, namely that you were using amphetamine and methylamphetamine and alcohol to excess at the time of these offences, yet you managed to work at heights as a scaffolder with some regularity.
31 It is of concern that you have never sought treatment, either for your grief and guilt following the death of your family friend, Jason, or for your alcohol and drug abuse. However, it is to your credit that, since being remanded in custody on 25 May 2017, you have been abstinent from substance abuse, and your counsel said that this is the first time that this has occurred since Jason died in March 2009.
32 It is also to your credit that you have undertaken a number of courses whilst in remand, particularly relating to endeavouring to understand the physical and psychological basis of drug cravings and strategies for managing them, along with managing worry and sleep and loss. A bundle of the certificates was tendered as Exhibit “1”.
33 It is also to your credit that you made full admissions in your record of interview and that you pleaded guilty at an early stage. I am satisfied that you have some insight into the impact that your offending had upon your victims and that your pleas of guilty are remorseful pleas. Indeed, the only evidence concerning the charge of criminal damage came from your admissions to police.
34 Mr Richter also asked the Court to take into account that, depending upon the sentence imposed, you may face a risk of deportation. He claimed that your partner and friends and work were in Queensland. However, it is also plain that you have many friends and family and, indeed, have spent the bulk of your life in New Zealand.
35 It is unclear whether your domestic partner is your co-accused, who in fact has returned to New Zealand. Some reference was made by your counsel to your partner in Queensland having substance abuse issues for which she is currently undergoing rehabilitation. It is possible that your co-accused and your partner are two different people. In any event, should deportation flow from any sentencing order that I make, although you may lose the opportunity to settle in Australia, I do not consider that deportation back to your country of origin is likely to be a hardship for you with so much family and community support. In these circumstances, there is authority that a Court should not consider the possibility of deportation as a mitigatory factor.[10]
[10]DPP (Cth) v Peng [2014] VSCA 128 at 23
36 Mr Pera, your conduct in turning up on the front doorstep of your victim’s home was brazen and intimidating. The victim, in his statement to police, described your build as being extremely muscly and really quite solid, which I note to be the case. He described your conduct at the door as being very forthright and angry and intimidating. The victim’s wife described how shaken and frightened her husband was when he instructed her to call police, as you looked like a stand-over man. She described the confusion and distress that followed, particularly as the threatening calls started. The victim described in his statement to police that in those calls you were yelling and really angry. Notwithstanding that the police had been notified, he told police that he was so fearful that you were going to come back to his house and kill him and his family, that he felt physically ill and could not remain in the house. He described himself as being completely bewildered by your allegations that he had laundered and buried money.
37 The victim made a Victim Impact Statement dated 17 October 2017 (Exhibit “B”). He described how he and his family had had to leave their house for nearly a week and hide in a hotel room because they were so scared. This cost over $1,000 and, as well, the victim lost income through being unable to work. In addition, they have had to have security cameras installed and a security grill and gate on the front and side of the house. All of these matters cost $8,500. The victim stated that, even with these precautions, they still do not feel safe in their own home and are still emotionally affected and worried. They are afraid to let their teenage child, who answered the door to you, out of their sight, and the victim’s wife, too, is traumatised and very jumpy and fearful of strangers. The victim stated that your offending has severely impacted on all of their lives to the point where they are no longer so social, and just try to stay home and keep safe. These are all foreseeable and understandable consequences of your very intimidating behaviour.
38 Every citizen should have the entitlement of feeling secure in their own home. Your conduct has infringed this very basic right. Not only did you turn up unannounced at the front door of your victim’s home (and I here take note that you are a tall and well-built individual), but your demeanour was clearly menacing. This was followed up with sequential and regular and insistent calls of a threatening nature. The victim could have no idea with whom he was dealing or what you were capable of. It must have seemed like a nightmare to him, a movie that he could not get out of, because he had no idea what you were talking about with your allegations of money laundering and money buried in his backyard. There is no evidence that you had a gun or the means to carry out any of your threats, but your victim was not to know this. You were threatening him with exposing an unfounded dishonesty in relation to the livelihood of himself and his wife and the tenor of your threats was understood by the victim to place all that he held dear, including the lives of himself and his family, at risk.
39 It is extraordinary that anyone should feel an entitlement to carry on in this appalling fashion. I accept that it was unsophisticated offending in that you and your co-accused used your own mobile telephone calls and clearly you did not disguise yourself in any way when you came to the victim’s home. however, there was clearly some degree of planning, as you told police that you travelled from Queensland to Victoria for this specific purpose. However, as I have said, your victims had no idea who they were dealing with, and it must have been further unsettling when they discovered that you had forced entry into their rear garden by damaging fence panels the night before.
40 Although your reducing demands for money may aptly be described as pathetic (as you described them to police), there is no doubt about the frightening impact that this had upon the victim’s household. It is dreadful that someone should feel so scared that they feel compelled to leave their own home and, indeed, go into hiding not undertaking their usual work for a period of time, as mentioned in the victim’s Victim Impact Statement.
41 The content of your threats, which mentioned that the victim had been under surveillance and that dire things would happen to him and his family, make this offence of blackmail serious, albeit not in the most serious category of blackmail offences.
42 In sentencing you, this Court must denounce your conduct and place emphasis on general deterrence. This means that the sentence given to you must serve as a message to other members of the community who think it might be an easy way to make money by bribing and threatening others into giving to them. People who are minded to behave in this fashion, standing over others in a bullying and frightening way, must be made aware that they will meet just punishment.
43 I find that the material which has been put on the plea on your behalf is somewhat sketchy. It is troubling that by the age of 39 years, notwithstanding a long-term substance abuse problem, you have never sought to address it. Although your offences relating to family violence are sometime in the past, they show an immature hot-headedness which is of concern. However, you are entitled to a high discount on the sentence which otherwise would have been imposed had it not been for your early and remorseful pleas of guilty and the cooperation that you gave to police in your record of interview.
44 It is possible that, if you can remain abstinent from illicit drugs and alcohol you may be able to turn your life around. I note a relative lack of prior offending in recent years. If you can stay clear of drugs and alcohol your prospects of rehabilitation may be reasonable. For this reason, I consider that a shorter than usual non-parole period is warranted in your case. Mr Pera, you are the only person who can make that decision, to stay clean and try to rehabilitate yourself and now is the time to make it.
45 On Charge 1, damaging property, you are convicted and sentenced to be imprisoned for a period of six months.
46 On Charge 2, blackmail, you are convicted and sentenced to be imprisoned for a period of two and a half years.
47 I direct that one month of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2.
48 The total effective sentence is 31 months’ imprisonment.
49 I direct that you serve a period of 16 months’ imprisonment before becoming eligible for parole.
50 I declare a period of 201 days’ pre-sentence detention be time reckoned as already served under the sentence imposed this day.
51 Pursuant to s464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic sample for the taking of a scraping from the mouth in accordance with sub-division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database.
52 I consider that this order is justified by the seriousness of the circumstances of your offending.
53 Mr Pera, you need to understand that, if you do not cooperate with the police in order to take a sample of saliva from your mouth, then the police are entitled to use reasonable force to obtain such a sample.
54 Pursuant to s6AAA of the Sentencing Act 1991, I state that, had it not been for your pleas of guilty, the total effective sentence would have been four years’ imprisonment with a non-parole period of three years.
0