Director of Public Prosecutions v Cummins
[2020] VCC 102
•13 February 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THOMAS CUMMINS |
---
| JUDGE: | HIS HONOUR JUDGE CAHILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 04 February 2020 |
| DATE OF SENTENCE: | 13 February 2020 |
| CASE MAY BE CITED AS: | DPP v Cummins |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 102 |
REASONS FOR SENTENCE
---Subject: Blackmail
Catchwords: Guilty plea – victim known to offender - sustained but not intimidating offending – serious example but gravity of offending less than some very serious cases -early plea – cooperation with police – reasonable prospects of rehabilitation – first time in custody
Legislation Cited:
Cases Cited: Aitkin v the Queen [2017] VSCA 103, Director of Public Prosecutions v Oksuz [2015] 47 VR 731
Sentence: one year and 6 months imprisonment with a minimum non-parole release period of 9 months---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T. Bourbon | |
| For the Accused | Mr P. Casey |
1HIS HONOUR: Thomas Cummins, you have pleaded guilty to one charge of blackmail and one charge of cultivation of a narcotic plant.
2The circumstances of your offending are set out in the amended summary of prosecution opening which is Exhibit A. They are agreed facts.
3RedHotPie is described as a dating and hook up app for singles and swingers. In October 2018 you exchanged messages with a married couple on the app. Consequently, you went to their home twice, they allege, in October and November 2018, where you had sexual intercourse with the wife while her husband either watched or participated in sexual activity himself.
43 months later, on 10 February 2019, you sent the husband, who was known to you as you had played Australian rules football together with the 10 years earlier, a text message. You told him you were a drug addict and you owed a drug dealer $1,500. You demanded two payments of $750 from him. You told him you had screen shots of sexually explicit photos which the couple had previously sent you on the app. You threatened to post them to social media and tagged people the couple knew unless they pay the money. You promised they would never hear from you again once you have paid your drug debt. They made one payment to your bank account. The husband told you that you must keep your word because his wife became hysterical when she heard of your threat. You repeated your promise and he made the 2nd payment to your bank account.
5In a series of later text messages you made more demands for money with the threat you would post the comprising images to social media if they did not pay.
6On 19 February 2019 you sent the man another message. You told him you had hocked your grandmother's jewellery and needed money to get it back. You demanded $500 and said you would delete all the photographs after you received the money. $500 was paid into your bank account.
7On 10 March 2019 you demanded another $200 and again threatened to post the photos to social media. You were paid $200 into your TAB account. Next day, you demanded another $200. You said you felt bad;; another $200 was paid into your TAB account. Next day on 12 March you demanded another $200. You wrote what you had done was 'putrid' and knew what you were doing was 'not on'. You wrote that you hoped, 'This is it.' Another $200 was paid into your TAB account.
8Next day, on 13 March, you demanded another $250. You threatened the man that if he replied to your message you would post everything on social media. You promised you would send him all of the photographs after he had paid the money. When he paid it you sent him a message that you had deleted the photographs.
9Three days later on 16 March, you sent the man another message. You wrote you had recovered 193 photos which you had previously deleted. You threatened to post them to Facebook unless he paid you $400.
10Next day, 17 March, you demanded another $300, and you threatened you would post the photographs on the couple's children's school Facebook page if the money was not paid. It was paid into your account that evening.
11Next day, 18 March, the couple reported the matter to police. While they were at the police station, in another text message you demanded $300 to be paid that day and $200 the next. You again threatened to post the photographs to social media if the money was not paid. The man borrowed $500 from a work mate and paid $300 into your TAB account. He paid the remaining $200 into your account the next day.
12On 22 March you demanded $300. You wrote, 'I'm cooked and have no emotion so won't have any problems putting it all out there.' The man deposited $300 into your TAB account that day and on the next day, 23 March, in another message, you demanded $300. You said it was not for drugs but to pay your phone bill. You promised it would be the last time they heard from you as you were now working.
13You threatened, 'There'll be a post on every primary school' unless the money was paid. $300 was deposited into your TAB account later that day, and then on 24 March in another message you demanded $200 or else you would post the photographs online. The man told you he was at breaking point and did not have any money left. He proposed a final one-off payment which would include his next week's work pay and whatever other money he could get before then.
14The man wrote, 'We are done. Mentally, emotionally and financially.' You replied you would accept $1,000 in the next week but needed $200 that day. The man said he only had $50 and asked you to wait while he borrowed money from his parents. He deposited $50 into your TAB account. You pressured him for more money, threatening the photographs were, 'going up for the world to see.' The man told you he had to take his wife to hospital the previous night because she 'lost it' and was heavily sedated.
15You said it would all end by the following Friday 29 March, but you needed $100. You said you knew how badly she must have been feeling, but you were just a drug addict who put drugs before everything else.
16Between 10 February and 25 March 2019 the couple paid you $5,650 in response to the 12 demands I have outlined and the threats that you made, and that conduct constitutes Charge 1, blackmail.
17On 27 March police went to your parent’s home, where you were living, to speak to you in relation to the blackmail allegation. Six cannabis plants were growing on the property. Police seized them, their total weight was 470.1 grams and you have pleaded guilty to Charge 2, cultivating those plants. You attended the police station and were arrested there.
18At interview, you said you met the couple on RedHotPie and exchanged naked photos, but you had deleted the explicit photos about six months earlier when the man asked you to. He said they were asking you to buy them drugs and it got too much. To get rid of them you told them if they did not pay you money you would, 'post all their shit online.' You told police you wanted the money for drugs, you said that some of the messages you sent were 'brutal' and would have made them feel badly.
19You said you were using drugs, it got too easy, so you kept doing it as a way to get money. You admitted you sent all the messages and that you had threatened to post their photos to Facebook unless they met your demands for money.
20You admitted growing the cannabis plants. You told police you used to be a 'big bong smoker' but do not use cannabis anymore. You said you planted them for something to do.
21You were released on bail. 1 of your bail conditions was that you not publish anything online. You complied.
22You pleaded guilty at the first committal mention.
23You have admitted a criminal record from three Magistrates' Court appearances. On 2 August 2012 you were fined $500 without conviction for possessing MDMA. On 18 March 2014 you were released on a community correction order without conviction for 12 months on charges of burglary and theft and failing to answer bail, and on 2 August 2016 on charges of contravening that community correction order and failing to answer bail, you were released on a further community correction order for 12 months.
24You were born on 20 January 1989 and are now aged 31 years. Your counsel Mr Casey told me you were born and grew up in Melbourne. You have an older sister who is married with children, and a younger brother who lives at home. Your mother, who supported you in court, is a factory worker and your father has never worked. Mr Casey told me that through your childhood your father had alcohol and drug problems and was abusive at home. I was told your father was a heroin addict and that both your parents were cannabis users.
25You started using drugs yourself when you were 17 years old. You had enjoyed your primary school years but, when you were 12 years old, your father was gaoled for two years, and then shortly after his release he was gaoled for another year. In his absence, and without parental supervision, you made bad decisions. You stopped going to school and in Year 12 you were asked to leave. You then completed a three-year bricklaying apprenticeship with your uncle.
26While you were working, you started using ecstasy and methamphetamine in the party scene on weekends. As your drug use escalated your work performance deteriorated and ever since you have worked irregularly. Your uncle takes you back each time you want work. You last worked for him in October 2019 for two months.
27You have admitted to an ice addiction for the last 15 years. Mr Casey told me you have had two periods of significant abstinence.
28Firstly, when you were 26 years old, you moved to Queensland to get away from your local drug culture. You were in remission for 12 months and had stable employment. When you were offered a good job in Melbourne you returned and fell back in with old friends. The other period of abstinence was in 2018. Between August and December 2018 you completed a CISP bail program. A progress report, dated 15 October 2018, which was Exhibit 1, indicates you were working during the period. Urinalysis results showed you were drug abstinent. You attended scheduled appointments, including counselling sessions, which you found beneficial, and also saw a psychologist, David Ball, who assessed you in anticipation of your court appearance for dishonesty, drug and driving offences. His report, dated 27 July 2018, Exhibit 2. In his opinion, you were suffering from mild cannabis use disorder and severe stimulant use disorder.
29You explained your misconduct in the context of substance addiction. You told Mr Ball then, 'If I was awake, I was on drugs. I didn't speak to my family for two years.' You also said you were motivated to work and rebuild your life. On 7 January 2019, a magistrate released you on a community correction order for 12 months for that offending and for the contravention of the community correction order made on 2 August 2016. By your offending here, you breached that 2019 order.
30I have read the contravention report, dated 14 November 2019, which was Exhibit C. Not only did you reoffend, your compliance, noted by a number of unacceptable absences, was unsatisfactory, and, in February and March of 2019, at the time of this offending, you tested positive for methylamphetamine.
31Your lengthy history of drug abuse notwithstanding, you have a good history of participation in sports. You played Australian rules football with a local club from the ages of eight until 23, and cricket as an opening bowler with a local club from the age of seven until last year.
32In relation to your offending, Mr Casey told me there were four to five occasions when you engaged in sexual activity with the couple you blackmailed. During your contact with them they were asking you to buy party drugs for them and you obliged.
33I have read the text messages, which are Exhibit 1 on the prosecution brief, between the husband and you. They show in October 2018 and January and February 2019 he was asking you to supply them party drugs.
34Your offending commenced, on 10 February, after he had requested ecstasy tablets from you, you told him your drug dealer had bashed you because you owed him money, and you asked for $1,500 'to keep the little secret.' You also wrote that you knew you were a 'dog' for making the demand. Next day you wrote that you appreciated the payment he had made, and you apologised for what you had done and you said you would not contact him again.
35Two days later, on 13 February, you demanded more money. You said you did not want to ask and you felt bad. He replied he hoped you would stick to your word and delete everything. He also wrote he believed you had a conscience. He said your threats were affecting his wife badly. You replied you were sorry and that you had no other options and that he would not hear from you again.
Six days later, on 19 February, you wrote you needed money to get your grandmother's jewellery back from Cash Converters, and with this payment, 'This will be the end of it.' You wrote, 'I know what it would do on your end.' However, your demand on 10 March was aggressive. You wrote, 'I'm not asking, I'm telling. I need you to put $200 into my TAB account.' Next day you were apologetic, you wrote, 'I promise that's it. I have a pre-written email to send you that says how much I extorted you for to go to the cops. I feel bad. This is not me and I'm sorry.'
36And on the next day you wrote, 'I woke up this morning feeling sick. I know everything I've done over the last few days is putrid.'
37But, in a later message, you threatened to post the images to the children's school's Facebook account unless your demand for money was met. You repeated that threat on 23 March, and then finally on 24 March you wrote, 'Deep down, I hate myself for this.'
38The messages exchanged between the husband and you were often lengthy and conversational; often apologetic but, at times, threatening. You wrote, 'I'm a drug addict. I've put that before everything.'
39In written and oral submissions, Mr Casey relied on the following factors in mitigation of penalty. Your plea of guilty, your cooperation with police when you were arrested and interviewed, your difficult upbringing in a family environment of drug use, your limited criminal history, you have not previously been sentenced to a term of imprisonment, and your reasonable prospects of rehabilitation given your motivation to abstain from drug use and the availability of stable accommodation and employment to you.
40He submitted I should impose a combination sentence of imprisonment and community correction order for your offending.
41Mr Bourbon, who appeared for the prosecution, submitted your offending was a quite serious example of blackmail. In response to questioning by me, he submitted it was not low because you had made numerous demands for money over a six-week period. He acknowledged you made no threats of physical violence, and, while at times you were apologetic, at others, you were insistent the couple meet your demands.
42He also acknowledged that the proceeds of your demands, $5,650, were less than in more serious cases. He submitted that you were subject to two community correction orders when you offended, is an aggravating feature. He also submitted while the victims made no victim impact statements, it is plain they have suffered emotional stress and financial loss by your criminal conduct.
43He acknowledged your plea of guilty was made at the earliest opportunity and, in addition to its utilitarian value, your plea of guilty and cooperation with police are evidence of remorse. He submitted your rehabilitation was dependent upon drug abstinence, and given your long history of addiction and relapses your prospects of rehabilitation are guarded.
44He submitted, taking into account all the circumstances of your offending and your personal circumstances, a term of imprisonment was warranted but a combination sentence was not properly open.
45To enable me to consider all sentencing options I have had you assessed for a community correction order.
46You have been subject to six community-based dispositions since 2013. You completed two fine default orders in 2014, contravened a community work only order in 2015 and have contravened community corrections orders made in 2017 and 2019. In 2019 you did not complete any of your 170 hours of community work. You failed urinalysis drug screens and you did not attend any of your scheduled counselling appointments.
47There are two outstanding Magistrates' Court bench warrants for two charges of contravening the 2019 community corrections order. Unsurprisingly, given your history of non-compliance and reoffending whilst on orders, you were found not suitable for another community correction order.
48At all events, accepting the prosecution submissions I have decided the only appropriate sentence is one of imprisonment.
49I have moderated the term of imprisonment and non-parole period to take into account the mitigating factors Mr Casey identified.
50I have used other sentences, making allowances for differences in offending and personal circumstances to yours, as a guidepost. For example, in the cases of Aitkin v the Queen [2017] VSCA 103, and the Director of Public Prosecutions v Oksuz [2015] 47 VR 731, each described by the Court of Appeal as a very serious example of the offence of blackmail, sentences of three years and six months, and two years and six months respectively were imposed. The objective gravity of the offending of both Aitkin and Oksuz, involving as they did threats to kill and firearms, was clearly greater than yours.
51Please stand, Mr Cummins.
52By the sentence I impose I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
53Taking into account the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of blackmail you are convicted and sentenced to a term of imprisonment of one year and six months' imprisonment, and to give you the opportunity to continue your rehabilitation under supervision in the community, I order you be eligible for parole release after serving nine months' imprisonment.
54I accept your counsel's submission, which was not disputed, you have accepted responsibility for the cultivation of the cannabis plants to protect someone else. The prosecution did not allege cultivation was for a purpose other than personal use and the applicable maximum penalty is a term of imprisonment of 12 months or a fine of 20 penalty units or both. In the circumstances, on the charge of cultivating a narcotic plant you are convicted and fined $400.
55You may have a seat, Mr Cummins.
56I declare, but your plea of guilty, I would have imposed a term of imprisonment of two years and six months' imprisonment and fixed a minimum non-parole period of one year and six months.
57By consent I make orders for the disposal of the six cannabis plants seized from your family home, and an order for payment of compensation in the sum of $5,650 to the victims of your crime.
58COUNSEL: As Your Honour pleases.
59HIS HONOUR: Mr Bourbon, any matter arising out of that?
60MR BOURBON: No, Your Honour, no.
61HIS HONOUR: Thank you. Mr Casey?
62MR CASEY: No, Your Honour.
63HIS HONOUR: Are there likely to be any custody management issues, Mr Casey?
64MR CASEY: I don't believe so, Your Honour, but I'll ‑ ‑ ‑
65HIS HONOUR: Yes, check, thanks.
66MR CASEY: No issues, Your Honour.
67HIS HONOUR: Thank you very much. Adjourn until 10.30.
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