Director of Public Prosecutions v Buchmasser

[2019] VCC 1098

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

AT GEELONG
CRIMINAL JURISDICTION

CR-19-00205

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMON BUCHMASSER

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	19 July 2019
CASE MAY BE CITED AS:	DPP v Buchmasser
MEDIUM NEUTRAL CITATION:	[2019] VCC 1098

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions
For the Accused	Ms M. Foley	Victoria Legal Aid

HIS HONOUR:

1Simon Buchmasser, you are a young man, 20 now, 19 at the time that you committed the offending.

2At that time, and it seems beyond it, you have aimlessly idle locked up in your bedroom, or at home, smoking cannabis and watching misguided YouTube videos.  You developed a naïve view regarding how you could protect children from sex offenders.  Your views were formed from your uncritical viewing of a YouTube program in which social media stings are played out on men interested in sexual encounters with teenage girls.

3To a point, you followed the template that you had seen on the YouTube program by setting up a false dating site identity pretending to be a 14 year old girl who you named Kylie.  The victim himself young, just 18, communicated with Kylie on the dating site.  Ultimately an arrangement was made whereby the victim would go to a primary school in Grovedale to meet up with Kylie.

4When the victim was walking on a street nearby, you got out of a car driven by a man you refuse to identify.  You approached the victim asking if he was there to meet Kylie.  The victim said he was there expecting to meet Kylie.

5You interrogated the victim about his intentions.  You accused the victim of being a paedophile.  You then told the victim you would report him to the police unless he paid you $500.  The victim in fear agreed to pay the money and then left.

6Two days later, you sent a text message to the victim saying he needed to pay $200 and you provided your own bank details.  Two days further on, you sent a further threatening message to the victim which read as follows,

'Since you want to be smart and disconnect and give us the wrong number, you now have three options; (1) pay us a thousand; (2) we come find you and break your bones and also send the videos to your family; (3) we hand you over to the police.'

7Three days later and in order to get compliance with your demands, you sent the victim a video of the two of you meeting up on the street on 29 July 2018.  It was then that the victim no doubt in fear contacted the police.

8Police arrested you on 5 September 2018 seizing your phone which had details on it of your fake profile of Kylie.  Also found was 12.02 grams of cannabis.

9You pleaded guilty to blackmail and possession of cannabis resolving the matter on 1 February 2019.  It was an early plea.

10Blackmail is always serious.  Reporting the blackmail threats carries with it for the victim that the victim must reveal embarrassing conduct.  Your misguided purpose was to set up and then punish the victim that responded to the false underage profile.

11If you had early on provided the information to police, they could have taken appropriate steps if they thought necessary.  It is for the police and the police alone to properly investigate alleged criminal conduct, not vigilantes who exploit the circumstances as you did to then greedily seek cash for yourself.

12This type of blackmailing behaviour must be deterred, lest vigilantes using the internet take the law into their own hands.  This would amount not to offenders being properly brought to justice according to law but it would be an attack upon civilised law and order.

13I note that your initial demand at the scene was ill conceived and not especially threatening.  Likewise, the first demand sent by text message was moderate and naively included your own banking details.

14The next message which I read out in full was self-evidently threatening and concerning.  However, apart from sending a video of the initial meeting, nothing further was done or followed up to bring the demands to fruition or expose the victim.

15It was a month later when you were arrested.

16The victim has provided a victim impact statement.  He indicated that he thought in the future he would have to be careful of what he did in reality and online.  He indicates that he feels nervous as he has no idea what might happen to him.

17He had to go along and see various people about this, the police and so on, reported to his own educational facility so that they could take steps to ensure his security and safety.  He said he felt scared and frightened as he had no idea what was going to happen.

18In the end, he says,

'I just want this to go away and be done with.'

19In my view, in the end, while your blackmail behaviour was troubling, it was not an especially serious example of this offence.

20As to your personal circumstances, as noted, you are now 20.  You have always resided with your mother.  She works in the local hospital.  Over the years, she has had fragile mental health having lost her first husband in a car accident.

21The man she then married, your father, was an alcoholic and violent to the point of being imprisoned.  Your mother finally separated from your father when you were about eight.  That said, you have kept in contact with him.

22Your siblings are all working and law-abiding young adults.  You left school at Year 10 or it might have been even earlier.  Though, later you did do a Year 12 VCAL course regarding maintenance and repairs of motorcars.

23You have had short term jobs at Kentucky Fried Chicken and a local bakery.  You have been unemployed for about 18 months, maybe up to two years.  You said to the medicolegal psychologist, Mr Cummins, who was engaged by your lawyers that over that period,

'I was being lazy and smoking a lot of weed.'

24To your credit of late, you have given up using cannabis.  You indicated to the psychologist, Mr Cummins, that you do not enjoy close relationships or friendships.  You are emotionally detached preferring your own company.  Mr Cummins considered that you had characteristics of a personality disorder.

25These are troubling and taken with your limited education and employment history, in my view, this makes your rehabilitation more problematic but due to your young age, your reform is of the utmost importance.

26I will apply the principles regarding sentencing young offenders as articulated in the R v Mills and Azzopardi v The Queen.  Thus, while denunciation and deterrence for the crime of blackmail is usually the most weighting matter, in this case, due to your youth, naivety, lack of relevant prior convictions and the fact that the crime was not at the high end of the spectrum, what I need to consider are penalties other than the usual punishment for blackmail which of course is a significant term of imprisonment.

27Taking into account your early plea and your now developing insight into the gravity of your crimes, I am of the view that a community corrections order is in this instance the appropriate punishment.

28The important principles as articulated in Boulton & Ors v The Queen have application here in respect of facilitating your reform and at the same time requiring you to undergo punishment by reason of unpaid community work.

29I had you assessed for a community corrections order and you are found to be suitable.  The community corrections officers did not indicate that you needed any mental health programs and I am not going to include that on the list of programs that you must undergo but, in my view, separately and as a matter really of your mental as it can be dealt with by the health system, you should consider whether or not you should approach your general practitioner for a discussion about a mental health plan.  You might find that it would be more helpful than you otherwise would think but you will have to undergo punishment by way of unpaid work and by undergoing treatment and rehabilitation for drug use.

30Your abstinence from cannabis is, as I said, to your credit but there is in the courts long history of those that are coming up towards a court hearing giving up the drugs and being abstinent and giving an indication that they will stay free of drugs and they lapse quickly.  You need some assistance in ensuring that you do not relapse via the programs that are available under the community corrections order.  You are to also be under supervision by the Office of Corrections.

31So in respect of the offence of blackmail, you are convicted and placed on a community corrections order that will go for 20 months.  You must do unpaid community work being 180 hours of unpaid community.  Also, undergo treatment and rehabilitation for drug abuse and be under the supervision of the Office of Corrections.

32There will be a series of mandatory and program conditions that will be read out to your shortly when the document is produced.

33In respect of the possession of cannabis, you are fined $200.

34Had you pleaded not guilty to these matters and been found guilty of them, I would have imposed a Youth Justice Centre detention of 12 months.

35I make the orders relating to forfeiture.  Is there any debate about that though?

36MS FOLEY:  No, Your Honour.

37HIS HONOUR:  All right.  Just hand me that document.  It is just the cannabis, so the fines and computers go back to him.

38Is there any other orders required?

39MR BROWN:  No, Your Honour.

40HIS HONOUR:  Thank you.  We will just produce the document.  Come out of the dock and sit behind Ms Foley.

41I will make the remarks available on the media portal when they are revised.  It will take some time.

42Mr Buchmasser, the conditions that apply to everyone who is on a community corrections order that you are on now, first is most important, you must not commit another offence for which you could be imprisoned during the time that the order is in force.  That is almost every offence that you could think of would breach this order so do not commit any offences.  Do you understand that?

43OFFENDER:  Yeah.

44HIS HONOUR:  If you do, you come back here.  You might go to the magistrate for those offences but you come back here for breaching it and how I have approached this by giving great emphasis to your rehabilitation, that will not be repeated.  Do you follow?

45OFFENDER:  Yeah.

46HIS HONOUR:  Right.  A breach of a community corrections order itself is a crime punishable by three months' imprisonment and depending on the circumstances, it is highly likely you will just go to gaol for that fact.  Right.

47You must also comply with a number of obligations and requirements.  It is all about cooperating with the Office of Corrections.  The first is that there are prescribed regulations under the Sentencing Regulations.  They, I am told, are really about ensuring that they have your cooperation and taking a photograph of you so they know that you are through the process.  Do you understand?

48OFFENDER:  Yes.

49HIS HONOUR:  You have got to report to and receive visits from the Office of Corrections.  You must report to the Office of Corrections within two clear working days of your order starting.  The office is up on Little Malop Street, the other side of the park.  Do you understand that?

50OFFENDER:  Yes.

51HIS HONOUR:  The address is here.  You must let them know within two clear working days if you change your address or job.  So if you get a job, tell them what it is and where it is.

52You must not leave Victoria without getting permission to do so and you must obey all lawful instructions and directions from the Office of Corrections.

53So that is what applies to everyone and it applies to you.

54The special conditions that apply to you on this particular order are that you must perform 180 hours of unpaid community work over 20 months.

55Now, let me just pause there.  That is not voluntary.  That is just not when you are ready to get down there or you are a bit tired or whatever and you are not going to do it.  If you do not do every single hour every time that you are asked, you will come back here and that will probably mean a term of imprisonment so get down and do whatever the arrangements are.

56Keep in mind that there may be people who are community corrections orders that you will have to interact with who might not be like you with very limited criminal history.  They may have long criminal histories and not very interested in putting an end to that and they might encourage you or discuss with you cannabis use or other things.  That might happen.  You have got to stand firm otherwise you will go downhill.

57You have got to be under the supervision of the community corrections people for 20 months.  They will require you to come and see them, they will require you to contact them.  They have got to supervise you; see how things are going.  That is not voluntary.

58If they say 10 o'clock on Tuesday, you will be there at quarter to 10 waiting.  If they say it is 5.30 or 3 o'clock another month down the track, you will be there waiting.  Do you follow?

59OFFENDER:  Yeah.

60HIS HONOUR:  All right.  No excuse that you could not get a lift there or any of that nonsense.

61Now, you must undergo assessment and treatment for drug abuse so they will try and help you out with your previous problem with cannabis.

62If you sign that, it will bring the matter to an end.

63Thank you.  You will get a copy of that and you are free to go.

64Mr Brown, that puts an end to his bail conditions ‑ ‑ ‑

65MR BROWN:  Yes.

66HIS HONOUR:  ‑ ‑ ‑ which have this social media business.

67MR BROWN:  Yes.

68HIS HONOUR:  So there is no bail condition that prevents you from using social media or the like but be careful.

69OFFENDER:  Yeah.

70HIS HONOUR:  Ms Foley, thank you very much for your assistance.  You are free to leave when you are ready to do so.  I am just going to talk to Mr Brown and probably more his instructors about things that are coming up.

71MS FOLEY:  Yes, Your Honour.

72HIS HONOUR:  Thank you.

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