Director of Public Prosecutions v Cassar

[2020] VCC 1957

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02417

DIRECTOR OF PUBLIC PROSECUTIONS

v

CAROLINE CASSAR

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2020
DATE OF SENTENCE:	7 December 2020
CASE MAY BE CITED AS:	DPP v Cassar
MEDIUM NEUTRAL CITATION:	[2020] VCC 1957

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Plea of guilty – One charge blackmail ; related summary offence of contravening conduct condition of bail – deferral of sentence – early plea – admissions

Legislation Cited: s.87(1) Crimes Act 1958; Sentencing Act 1991; s.30A Bail Act 1977

Cases Cited:R v Verdins (2007) 16 VR 269; R v Vo (unreported, Victorian Court of Appeal, Phillips CJ, Callaway and Batt JJA, 14 May 1998).

Sentence:  12 month Community Corrections Order and fine with conviction.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Dawson (For Plea) Ms A. Birkin with Ms K. Van Den Akker (For Sentence)	Office of Public Prosecutions
For the Accused	Ms J. Van Arkadie (For Plea) Ms X. Vela (For Sentence)	Victoria Legal Aid

HER HONOUR:

Introduction

1       Maree Cassar, between 6 November 2018 and 19 November 2018 you sent messages via various electronic platforms to your friend Ms Stevens and her partner Mr Tahiri.  The messages were aggressive in their tone and demanded that Ms Stevens repay the sum of $300 that you claimed you were owed by her. Moreover, the messages suggested, albeit in rather general terms, that if Ms Stevens did not repay the money that you, or people that you knew, would do something to Ms Stevens (or to her property, it is not entirely clear)  in order that you could recover the sum.  In your interview with police you told them that your aim was 'just to scare her so she'll give me my money back'.  Ms Stevens blocked your messages and ultimately you desisted.

2 You have pleaded guilty, Ms Cassar, to one charge of blackmail contrary to s.87(1) of the Crimes Act 1958, which carries a maximum penalty of 15 years imprisonment (Charge 1), and to the related summary offence of breaching a conduct condition of bail contrary to s.30A of the Bail Act 1977, which carries a maximum penalty of 30 penalty units or three months' imprisonment. And you have admitted a prior criminal history dating back to 1996.

Circumstances of the offending

3       The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 22 May 2020; that document is marked Exhibit A on the plea and forms part of these reasons.  I will summarise just some of the facts giving rise to your offence here.

4       You became friends with Ms Stevens in around March 2018 through your mutual involvement with Community Corrections.  You and Ms Stevens would look after each other's children; you would sometimes borrow her car.

5       In early October 2018 Ms Stevens borrowed $50 from you for petrol.  
Ms Stevens was under the impression that the money was payment for allowing you to use her car and for looking after your daughter.

6       On 25 October 2018 Ms Stevens came to your home to babysit your daughter while you went out; she left slightly before you got home and this was contrary to how you understood the arrangement.  You were angry with her.  
Ms Stevens thought there would be no difficulty because she had not left your daughter alone; there were two other people present at the address when she left.

7       It was this event that really precipitated the deterioration in the relationship and it appears to have triggered your sending messages to Ms Stevens about your perceived mistreatment.  You started to send Ms Stevens messages expressing your discontent with her.

8       At around this point Ms Stevens lost her mobile phone.  After about three days it was recovered and there were over 20 missed calls and many text messages from you.  In some of the messages you sent you begged
Ms Stevens to give you the money you felt she owed.  You begged her to do this urgently to help pay for your boyfriend's legal fees.

9       Ms Stevens ignored your calls and messages but you continued to call and send messages.  Ms Stevens changed her phone number. She blocked you on Facebook.

10     Perhaps frustrated by this, and having received no reply, you then started to send messages to Ms Stevens' partner Mr Tahiri.

11     On four occasions in November 2018, you sent Mr Tahiri text messages from a phone you did not normally use.

12     On 6 November 2018 you sent a message to Mr Tahiri to the effect that if
Ms Stevens did not pay the $300 there was going to be 'trouble' and that 'if she honestly think (sic) she can get away with it by disconnecting her number and blocking on Facebook then tell her to think again ‘cause we know where she lives and if she wants to mess with a Madaffrei then go ahead she won't get far'.  On 7, 9 and 10 November 2018 you sent further messages to
Mr Tahiri with similar content.  The reference to 'a Maddafrei' was a reference to Joe Maddafrei, your partner at the time.

13     The same day you sent a Facebook message to Ms Stevens from an account named 'Carol Cas', which went straight to the 'Other' section of Ms Stevens' messenger inbox.  In that message you wrote, amongst other things:

'Now u better pay me my money before I send people to get it 'cause I have had enough of people like u trying to rip me after everything I gave u…You owe me $300 and I want it now understand???  Joe gets out Tuesday so god help u if u haven't paid me by then cause u know he is dying to get at u for calling the police on him and this would be the perfect opportunity for him to come to your house and make a scene…'

14     On 13, 18 and 19 November you sent further messages to Mr Tahiri and
Ms Stevens with the general threatening theme continued.  In effect you demanded the $300 and suggested that you and others would come and somehow harm Ms Stevens if she did not repay the sum.

Complaint

15     On 18 November 2018 and 13 December 2018 Ms Stevens made a statement to the Police about your offending. 

Arrest and interview

16     On 11 December 2018 you voluntarily attended Sunshine Police Station by appointment.  You were arrested and interviewed.

17     You admitted sending the text messages to Ms Stevens and to Mr Tahiri.  You admitted to sending Ms Stevens an email asking her to pay you; you also admitted to making a second account on Facebook to send the message to Ms Stevens after the first account was blocked.  You admitted that your aim was to scare Ms Stevens so that she would give you back the money.

18     On 14 December 2018 your case was brought before the Melbourne Magistrates' Court for a filing hearing.

19     You agreed to plead guilty on the morning of the committal hearing and the matter was listed for a plea at the County Court.

Nature and gravity of the offending

20     Blackmail is an inherently serious offence reflected in the 15 year maximum penalty it commands.  Offences of blackmail are generally difficult to detect, because its victims often fear reporting the events for the same reasons they fear the perpetrator (or their threats).  They often feel they may lose their privacy or their safety, or bring themselves unwanted attention from the authorities.  In the case of R v Vo, the court observed that where a victim of blackmail comes forward it is essential that they know that their courage to report the offence will not be wasted and that the offender will be appropriately punished.[1]

[1]R v Vo unreported, Victorian Court of Appeal, Phillips CJ, Callaway and Batt JJA, 14 May 1998).

21     That said, the offence also contemplates a very wide range of criminal conduct.  Here, there are a number of features of this example of the offence that assists the conclusion that this offending is located at the lower end of the scale of gravity for this offence.  There were no express threats of violence.  The threats remained at a level of generality.  The threatened conduct suggested  general disruption, a scene being caused, or property being taken.  There was no actual violence.  There was never any visit.  In this way it is possible to distinguish this version of the offence from some of the more serious cases where violence is threatened or violence is carried out, property destroyed, or intimate secrets betrayed.

22     Although the offending unfolded between 6 November and 19 November 2018 communications were sent on only seven days in that period.  And I also acknowledge that the quantum demanded, some of $300, is relatively modest though I also acknowledge that the quantum is not a controlling factor in the assessment of gravity if the means used to recover it are very serious.

23     Having said that, I acknowledge both that it was no doubt most unpleasant for Ms Stevens and her partner to receive these messages and it was no doubt difficult for Ms Stevens to come forward and report the threats to police, particularly in circumstances where some of the messages she received referred to illegal substance use and had the potential to invite unwanted attention from the authorities.

24     In recognition of that, and with deference to the principles in R v Vo, this sentence will take into account that you will be appropriately punished;
Ms Stevens will know that her courage in reporting the offence has not gone unrecognised.

Victim impact

25     I pause to note that there were no victim impact statements tendered on the plea, however, I infer that it would have been at least very unpleasant and possibly frightening to receive these messages in this number with this content.

Personal circumstances

26     You are now 41 years old.  You were 40 at the time of the offending.  You were born in Melbourne in 1978.  You were here until the age of five when your parents decided to live in Malta, their country of birth.  Your family decided to return to Australia when you were 11 and when you got back although your languages other than English had advanced while you were overseas, your lack of English skills held you back here and required you to repeat grade five.  You completed your VCE after which time your parents separated.  Your mother is now 66 and is a retired nurse.  Your father is now age 68 and is retired.  You also have a sister, Alison, who is two years younger than you.

27     You have a strong work history.  You got your first job at the local newsagency while you finished your secondary schooling.  After completing your VCE you enrolled in a TAFE course at Footscray College to study administration.  You did not complete the course because you applied for a role in the distribution of a fashion brand label.  You worked with that company until you were approximately 23 years old when you left to take up a role with Linfox where you worked for approximately 14 years.

28     Your role at that company ended when you were approximately 33 years old in the context of an increasing use of methamphetamine.  I pause here to note that prior to this time, you had had a single appearance in the Magistrates' Court in Broadmeadows for one charge of handling stolen goods.  You were fined without conviction.  I regard that matter as irrelevant to the current sentencing task before me.

29     In terms of your family life as an adult, you started a relationship with Mr Cillia in your final years of secondary school.  Your son was born and he is now 13.  Over time that marriage deteriorated; you remained in it for the sake of your son.  Against this background a colleague at work introduced you to methamphetamine.  This event precipitated an unravelling of your otherwise successful and prosperous life.

30     Ultimately, you separated from your husband; your son remained living with his father.  You began a relationship with Mr Maddafrei.  Soon after that relationship began you gave birth to a daughter.

31     Sadly your relationship with Mr Maddafrei appears to have been blighted by your mutual use of methamphetamine in increasing quantity.  The Department of Human Services became involved in your family when your daughter was six months old and she was removed by the Department and placed in the care of her paternal grandmother for her safety.  You spent the following 12 months satisfying Child Protection of your suitability to be her mother again and having convinced them, you were able to return to caring for your daughter.  In January 2020, against a background of your further drug use, your daughter  was again placed in the care of her paternal grandmother.  You are now again in the position of having to satisfy government officials that you are capable of looking after her.

32     I pause here to note that since your being charged for the offending in this case you have had other court appearances where you were charged with the contravention of a Community Corrections Order imposed on 25 July 2017 for offences including handling stolen goods, committing an indictable offence while on bail, trafficking in methamphetamine, and possessing diazepam.  You are currently on a Community Corrections Order imposed by the Magistrates' Court and I have had regard to a judicial monitoring report, Exhibit 2 on the plea, dated 3 August 2020.  I will return to the content of that report and a subsequent report later in these reasons.

33     Significantly, the charges that arose in early 2020 to which you have now been made subject to a Community Corrections Order, caused you to be committed to serving time in custody.  You were remanded on 31 March 2020 and bailed on 30 April 2020.

34     Since your release from custody you have abstained from methamphetamine use.

35     You have participated in psychological treatment with Mr Ben Simon psychologist (Exhibit 4 on the plea) and you have engaged with the Department of Justice and Community Safety.  That Department has been liaising with Child Protection from the DHHS who have been sending you for regular urine screens, mostly for the purposes of establishing your suitability to resume parenting your daughter.  You have also fulfilled your requirements to attend drug and alcohol counselling.

36     At the time of your plea on 19 August 2020 a report dated 12 August 2020 from Ben Simon, writes that you have had five sessions with him since
27 May 2020 and that you have been open and active and cooperative in those sessions.  That counselling is to continue and has continued.

37     A psychological assessment report was prepared on your behalf and exhibited on the plea (Exhibit No.3).  Ms Maynard was the author of that report.  
Ms Maynard notes that you commented to her that getting locked up was the 'best thing' that happened to you because it allowed you to become abstinent from taking drugs and think more clearly.

38     The report sets out your substance use history.  It says that you first started using methamphetamine about four years ago and although the use was intermittent to begin with you became dependent, needing it to get out of bed in the morning.  When your daughter was removed from your care you stopped using for about 18 months.  You managed to get your daughter back into your care but then relapsed again in July 2019.  At this stage, you and your partner were smoking between half and 1 gram of ‘ice’ each day.  Apparently when you used methamphetamine you also developed the parallel habit of gambling, as an escape from the depression and anxiety of not having your daughter with you.  Sometimes, you had to borrow and steal to be able to pay for the things that you needed in order to catch up on the money that you lost.  

39     You have not been diagnosed with any mental health issue in the past.  Anger and aggression have become a problem for you.  In addition to this, when you use methamphetamine you suffer from paranoia which is made worse by the sleep deprivation that goes with it.

40     You told the psychologist that assessed you that when you were in custody you were locked down for two weeks due to the COVID-19 restrictions; this was a very difficult time for you.  You were withdrawing from methamphetamine and unable to have any medication.  Your mental health was not good and you had trouble sleeping and you were only allowed out of your cell for 30 minutes a day.

41     Ms Maynard is of the opinion that when you relapsed into drug abuse again and lost custody of your daughter your life became chaotic and it is in this context that the offending behaviour occurred.  Ms Maynard's diagnosis was a stimulant use disorder at the time of the offending and possibly a gambling use disorder.

42     Ms Maynard noted that your mental health would likely deteriorate if you were placed into custody and that you are at risk of developing depressive symptoms with feelings of hopelessness and worthlessness.  It was put on your behalf, and I accept, that the material in Ms Maynard's report does not enliven any of the 'Verdins' limbs numbers 1 to 4 but does enliven the fifth:  that being that your mental health could deteriorate if you were to serve time in custody.

43     It is clear that the root cause of your offending was your descent into methamphetamine use.  The messages that you sent Ms Stevens reflect this.  You were angry, desperate, irrational, and enraged over the sum of $300.

44     You appear to be taking sincere steps in the direction of your rehabilitation.  From the expert reports and your history it seems that for you this is primarily a battle to permanently cease using methamphetamine.  You have commenced that battle but it is not over yet.

Purposes of sentence

45     Both prosecution and defence conceded the role of general deterrence in sentencing for blackmail.  There is also a role here for specifically deterring you from offending in this way again.  Part of the Court's role is also to denounce your offending and on behalf of the community the Court says it is completely unacceptable to treat people in this way even if, or especially if, you perceive that they have wronged you.  The Court also recognises Ms Stevens' courage and fortitude in making the report of your behaviour.

46     I must also have regard to your prospects of rehabilitation.  I note that until four years ago your life was prosperous and healthy.  You had a good work history.  You have and continue to have a strong and ethical family to support you.

47     You have spoken of a desire to return to paid employment.  At the moment the plan you had in place is put on hold due to the current public health circumstances.

48     I accept that the protection of the community is best achieved by your rehabilitation.  You have already embarked upon this process for the purposes of returning your daughter to your life.

49     Counsel for the prosecution in this case submitted that deferring sentence or imposing a Community Corrections Order would be within range for the offending before this court.

50     At your original plea hearing your barrister submitted that the Court should defer sentence for approximately three months to allow your rehabilitation to progress.  I adjourned the case for that purpose.  Prior to the hearing, I received a judicial monitoring report dated 10 November 2020.  That report summarised your progress on the Magistrates' Court orders and your progress in achieving more contact with your daughter.  Both projects show positive progress.  The Magistrate sentenced you to time served with a Community Corrections Order of 30 months.  I am aware of my obligation to have regard to the principle of totality in sentencing you for these offences while you are still the subject of sentences in the Magistrates' Court.

Breach conduct condition

51     I pause here to note that there is a summary offence that must also be dealt with.  That offence is comprised of a number of occasions you failed to report according to your bail conditions.

Early plea

52     Your plea of guilty has saved the victims from having to give evidence and re-live these events and I accept that your plea can be characterised as having an aspect of remorse.

53     Further, at a time where the public health emergency has prevented criminal trials from being held, I consider that your plea is particularly valuable; it reduces the already large backlog of cases to be heard in the future.

Time in custody

54     I take into account that since you were charged with this offending you served some time in custody. Although this time is not calculable for this sentence it is submitted on your behalf that this was very significant to you.

55     Further, I accept that any further time spent in custody in the context of the current pandemic would be extremely onerous due to the current health requirements in custody.

Admissions

56     You attended at a police station by appointment.  You answered questions in a record of interview and admitted that it was you who sent each of the messages received by Ms Stevens.  I regard this as significant.  First because it shows a willingness on your part to accept responsibility.  Second, because it saved the police and prosecution from having to prove each of those messages, something that is not always straightforward.  I have taken your admissions and your assistance to police into account in this sentence.

Prior history

57     I have had regard to your prior history.  The relevant parts of it have arisen in this four-year period when your life apparently has been taken over by your use of methamphetamine.  You have previously led a decent and healthy and independent life.

Current sentencing practices

58     I am required to have regard to current sentencing practices for the offence of blackmail.  I have considered the cases available to me, however, given that this offence takes in such a wide range of conduct there is a very broad frame of reference.

59     I have considered other sentences for blackmail imposed in Victoria since the case of Vo in 1998.

Deferral of sentence

60     At your plea hearing on 19 August 2020, your counsel submitted that, in the context of your progress on the Magistrates' Court CCO, and your hoped for progress in the Children's Court in returning to care for your daughter, that I should consider deferring your sentence to test your commitment to your rehabilitation.

61     Since that date further materials have been supplied.  The report from the Magistrates' Court summarises your progress since your plea hearing.  First, you have been granted twice-weekly unsupervised visits including sleepovers with your daughter.  You have continued to attend for complex counselling at IPC health.  This counselling is to continue.  The report also refers to having been sent by the Department of Health and Human Services for urine testing.  Although this content of those tests is not disclosed by this latest report it appears that this has all been going well.  You have continued to engage with Mr Ben Simon.  The reports noted that you are returning to the Children's Court in February 2021 with the view of having your daughter return to you full-time.  You have a Community Corrections Order of 30 months to serve in the Magistrates' Court, with 250 work hours to complete. 

62     So, this is the part that I will formally sentence you, Ms Cassar.

Disposition

63     Caroline Cassar, on Charge 1 of blackmail, you will be convicted and sentenced to a CCO of 12 months' duration and on the charge of breaching a conduct condition of bail you will be convicted and fined $400.

64     Ms Cassar, I know you have been through this process before about me telling you what your obligations are under a CCO but I have to do it again.  So, I will do it as briefly as possible.

CCO conditions

65     You will be first subject to the 'standard conditions' of a CCO.  That means, importantly, that you must not commit any other offences that are punishable by imprisonment during the 12-month period.  If you do, you will be brought back to court before me  and re-sentenced.

66     You must report within two days of today; by phone to the Sunshine Office of Corrections.

67     You are required to advise your supervisor in the Corrections Office of any change of address where you are living or working, and you must do so within two clear working days.  It is a term of all Community Corrections Orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections Order.  You are not able to leave the State of Victoria without their prior permission.

Special conditions:

68     There are some special conditions.  You will be required to complete programs to continue to address your treatment and rehabilitation for drug use.  

69     I have noted that unpaid work is not recommended by the Office of Corrections at the moment, and I adopt that recommendation.

70     You must also submit to supervision by your Community Corrections Officer as required.

71     So, Ms Vela and Ms Cassar, what I propose to do is to rise for a moment and give you an opportunity to just check in with Ms Cassar, Ms Vela, so that she understands those conditions.  I can repeat any of them if you need to.  Then what I will do is ask Ms Cassar whether she consents and makes the undertaking to complete the CCO with these conditions and if there is any lack of clarify or anything that she does not understand, I am happy to address that.  We can take Ms Cassar's consent to the order verbally through this medium.  So, I will just rise and allow you to speak directly to one another just for a moment.

72     MS VELA:  Thank you, Your Honour.

(Short adjournment.)

73     HER HONOUR:  All right, Ms Vela, have you had the opportunity just to discuss the conditions with your ­client?

74     MS VELA:  I have, Your Honour, Ms Cassar understands the conditions and will consent to the order.

75     HER HONOUR:  Terrific, thank you.  Ms Van Den Akker, there are no ancillary orders sought I think, am I correct about that.

76     MS VAN DEN AKKER:  I think you are correct, Your Honour.

77     HER HONOUR:  All right, in that case then the paperwork will be forwarded through my associate to each of you and unless there is anything further that the parties wish to raise, we will rise.

78     MS VELA:   No, Your Honour, thank you.

79     HER HONOUR:  All right, thank you both for your assistance.

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