Director of Public Prosecutions v De Silva

[2022] VCC 646

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

AT Melbourne
CRIMINAL jurisdiction

CR 20-01538

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL DE SILVA

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2022
DATE OF SENTENCE:	11 May 2022
CASE MAY BE CITED AS:	DPP v De Silva
MEDIUM NEUTRAL CITATION:	[2022] VCC 646

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Plea of guilty – one charge blackmail – one charge causing injury recklessly

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991

Cases Cited:DPP v Grabovac [1998] 1 VR 664; R v Vo (Unreported, Supreme Court of Victoria Court of Appeal, Phillips CJ, Callaway and Batt JJA, 14 May 1998)

Sentence:                  Community Corrections Order of 18 months’ duration.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Burnett	Office of Public Prosecutions
For the Accused	Mr S. Norton	Stary Norton Halphen

HER HONOUR:

Introduction

Plea of guilty and maximum penalties

1Daniel De Silva, you have pleaded guilty to one charge of blackmail, the maximum penalty for which is 15 years' imprisonment, and one charge of recklessly causing injury, the maximum penalty for which is five years' imprisonment.

Circumstances of offending

2The circumstances of your offending are set out in the summary of prosecution opening dated 2 May 2022. This document became Exhibit A on the plea and it forms part of and is attached to these reasons. I will not repeat it all here but summarise parts of it.

Background

3In 2019 you ran a video production company called Cloakroom Media based in Collingwood.

4In 2018 the victim in this matter, Mr Ryan Naumenko, did some work in the television industry and early in 2019 he was apparently approached to be part of a project to produce a TV show called 'Mob Wives'. For reasons that are completely unclear, that project failed.

5Mr Naumenko continued to pursue the idea of the Mob Wives project, and 'pitched' it to Ms Roberta Williams via social media. From this time he communicated extensively with Ms Williams and some of her associates about financing the project.

6On 25 June 2019 Mr Naumenko dined with Ms Williams and her partner and they continued to communicate via text thereafter.

7That same day he was given a $10,000 sum for the project from a Mr Alan Meehan, an associate of Ms Williams.

8Much was said by Mr Naumenko about funding for the project, a good deal of which of which may have been either severely inflated or completely untrue. Netflix were interested, it was said; $50,000 had been raised by way of a 'GoFundMe' page.

9On 30 June 2019, Ms Williams sent a message to Mr Naumenko saying she wanted to pull out of the project, citing her concern at the lack of progress and unfulfilled promises. Mr Naumenko persuaded her against this course; he told her he had already invested over $50,000 in the project.

10I note that these matters provide some context to your offending, but unfolded before you knew either of this project or anyone involved in it.

11On 30 June Mr Naumenko contacted you to discuss filming the project.

12You met Mr Naumenko the next day and talked about making a reality TV show centred on Ms Williams. You prepared a quote for your work: the cost of filming, equipment and crew would be $14,300. A plan was made to start filming on 5 July 2019.

13The same day you met Ms Williams at the Cloakroom Studios. This was on 2 July 2019.

14Two days before filming was to commence, you exchanged messages with Mr Naumenko, referring to your quote and to filming locations.

15During this phase, Mr Naumenko was also exchanging messages with Ms Williams, indicating to her that significant funds had been invested in the project. This amounted to Mr Naumenko misstating to Ms Williams what investment there really was in the film; Mr Meehan's $10,000 was in fact the only funding from any source.

16The day before filming was to take place, you sent Mr Naumenko an email asking for a deposit for your work; he told you there were no bank account details on the quote, and later told you that he had transferred some money into your account. A false remittance was tendered to you at some stage. You asked for the rest of the money to be paid in cash after filming the next day. Filming took place on 5 July 2019. Mr Naumenko claimed, falsely, that he'd paid a bond of $5,000 to secure the property. The deposit to you was never paid.

17The filming took place on 5 July 2019 in a rented apartment.

18At the end of the filming you asked for your fees; Mr Naumenko asserted that the agreement you had was for the work to be done gratis but that you owned the footage and your payment would come once the show was finished. Mr Naumenko also said he would try to borrow some money to pay you, that he would pay that night or the following day. You continued to pursue your payment via text the following day, and you received nothing.

19Two days after the filming, you and Ms Williams spoke and you came to the shared conclusion that you were both being defrauded by Mr Naumenko. A plan evolved to extract money from him.

20Later, I note parenthetically, on your plea your lawyer tendered evidence that on 6 July 2020 you had contacted police and emailed them the false remittance.

21There was discussion between you and Ms Williams about whether Mr Naumenko's car could be taken from him. Ms Williams wrote in a text to you, Mr De Silva, about 'One of the boys' giving Naumenko an 'open hand slap and push'. You spoke of Mr Naumenko 'having a stroke' when he saw 'the boys'. The plan was to attract Mr Naumenko to the studio for the purported reason of showing him some of the footage. Ms Williams recruited Mr Harrison, who in turn recruited another or others to come with them. The details of these other arrangements, I accept, were unknown to you.

The offending

22On 9 July 2020, at about 5:40pm, Mr Naumenko arrived at the studio with his mother and two children. You were there, as were Ms Williams, Mr Harrison and two others. After a time socialising, Mr Naumenko took his family home and returned to the studio at about 8:30pm.

23When Mr Naumenko returned to the studio, you suggested a toast before saying, 'You're fucked. It's all over now', and you said, 'I want money now, Roberta wants money now, otherwise you're fucked.' Mr Naumenko said he would organise payment.

24Two of the others present, Mr Sexton and Mr Harrison, hit Mr Naumenko to the sides of his face. Ms Williams yelled out words along the lines of, 'Kill the cunt, he has no money'. Mr Naumenko was repeatedly punched and kicked; he realised he was bleeding.

25At about 8:40pm, Mr Naumenko was able to send a message to his mother instructing her to call the police.

26Mr Harrison produced a handgun and told Mr Naumenko to sit down.

27One of the men assaulted him a number of times over the course of about three hours. He was punched and kicked intermittently.[1] He was threatened with his hands being broken and that that another person would burn him.

[1] Committal evidence of Naumenko p2567; Statement of Ryan Naumenko 18.7.19 Depositions page 2456 para 132.

28One of the unknown men said something along the lines of 'Don't call the cops'.

29Mr Naumenko was then tied to a chair. Ms Williams demanded he transfer money and told him words to the effect that he was lucky she had not killed his mother and children. Ms Williams threatened to have Mr Naumenko killed. I note you are not charged with either any false imprisonment nor any of these threats.

30Mr Naumenko's father and sister were at home that night. He was forced to send messages and to talk to them, asking them to transfer money to a bank account.

31You supplied the BSB and account number for an account belonging to Cloakroom Studios; Mr Naumenko's father and sister transferred $1,000 each into that account.

32At about 11:30pm Mr Naumenko was released after being threatened about not calling police.

33You then drove Mr Naumenko home.

34A few days later on 12 July 2019 Mr Naumenko was examined by Dr Gerald Murphy who observed:

(a)   bruising behind his right ear;

(b)   redness and swelling to the left side of his face;

(c)   superficial scabs on his scalp;

(d)   puffiness of his right cheek;

(e)   a large purple bruise on the right jaw;

(f)    a laceration on the right upper lip;

(g)   bruising on the inner right cheek; and

(h)   bruising to the upper and lower lips on the right hand side.

Charge 1: Blackmail

35The prosecution case against you, accepted by your plea, is that you and Ms Williams agreed to and did lure Mr Naumenko to Cloakroom Studios for the purpose of making an unwarranted demand with menaces of him and that the unwarranted demand was in fact made. It is not in dispute that the money, in the order of approximately $15,000, was in fact owed to you by the victim; the demand itself was not unwarranted, the method of the demand created the offence to which you have pleaded guilty.

Charge 2: causing injury recklessly

36The charge of recklessly causing injury is put on the basis that Mr Naumenko was struck a number of times and injured. The case against you is that you were complicit in the assault of Mr Naumenko and that you assisted and/or encouraged the others present and as a result Mr Naumenko was injured. You were aware in advance that violence in the form of 'An open hand slap and push' was contemplated.

Arrest and interview

37You were arrested on 12 July 2019 and bailed on 16 July 2019, after spending five days in custody.

Chronology

38A committal took place over three days followed by your committal to this court on 13 November 2020. There were circumstantial and procedural delays during 2021 not caused by you and by 17 September 2021 your plea offer was accepted and you pleaded guilty to a narrower suite of charges than those which you were committed on. Further delay unfolded between that date and the day your plea was finally heard.

39Your co-accused's cases have variously been adjourned, the subject of sentencing indications, and may yet proceed to trial.

Personal circumstances

40Turning now to your personal circumstances, you are 38 years old. At the time of your offending you were 36.

41You were born in Melbourne but lived in Brisbane for a time. Your parents separated though not before were an adult. Both your parents live in Melbourne. You maintain a relationship with your brother. You went to a local primary school and finished Year 12. You are bright, or it seemed so, and did well at school. You took tertiary education seriously completing an Advanced Diploma in Multimedia Studies and later an Advanced Diploma of Justice at the Royal Melbourne Institute of Technology. This led you to work with young people at Parkville Youth Justice Detention Centre.

42Over the last decade you turned a hobby into your profession and started your own film production company. You worked hard to build up this company and you have worked hard to rebuild it since these events. You currently employ one full-time staff member and at any one time engage approximately 10 contractors. One of the many consequences of your offending was extremely long work hours to recover the business and the reputation of your enterprise.

43It is your very good fortune to still enjoy the affection of your wife of 10 years. You share the care of two boys, the youngest of whom is being treated for a range of developmental issues, adding to the burden currently carried by your young family.

44You were supported in court by family and work colleagues.

Nature and gravity of the offending

45I now turn to the nature and gravity of your offending. I adopt your counsel's description of your offending as conduct that is 'unquestionably serious', 'terrifying' and 'traumatic' for the victim. The offending was planned on the day before; it endured for about three hours and you offended in the company of others.

46Authority and the legislated maximum penalty for blackmail both make it clear that blackmail is to be considered an inherently serious offence. Whilst it is not necessarily always a crime of violence, by its nature it is, as the court said in DPP v Grabovac, an attack upon a specific victim and its impact on the victim may be similar to actual violence in terms of the fear, stress and anxiety it engenders.[2] In your case, the crime of recklessly causing injury sits alongside it. The circumstances of the recklessly causing injury charge to some degree forms part of my analysis of the gravity of the blackmail charge, but I pause here to note I am conscious of the need not to doubly punish you for it.

[2] [1998] 1 VR 664

47Your victim sustained a number of injuries to the face and head as a result of what happened.

48It is accepted by the prosecution that you were legitimately owed the money you claimed, and in this respect, the unwarranted demand consists of not of the amount you sought, but the method by which you sought it. You knew and understood that such an approach was completely improper and illegitimate. I consider the existence of a true debt to reduce culpability somewhat, and a feature which distinguishes this case, to some degree, from the cases were the demand is in itself invented. Your counsel argued that the deceptions to which you had been subject were a matter to take into account in understanding the gravity of what you did. I do accept this to some extent, but I am also careful to draw a sharp line between this and any temptation to accept the idea, not argued for but close in concept, that the seriousness of the offending is lowered because the victim in this case 'had it coming'. There is no such submission advanced but let it be clearly stated - obviously there is no such basis for reducing your culpability.

49Significantly, the prosecution does not assert you were directly responsible for any of the violent conduct; you have acknowledged your complicity in it. It was protracted and cruel.

50I am careful to sentence you for the charged conduct and for no other offending: threats of false imprisonment and the like. I note in particular the prosecution does not allege you had foreknowledge of or any role in using the handgun.

51You issued, curiously, receipts for the money that was extracted from Mr Naumenko.

52You appear to have been an enthusiast for the original plan, at least in your discussions with Ms Williams, and lured Mr Naumenko to your studio for the purpose of confronting him. Once there you reinforced the demand by your presence. Blackmail is a crime that requires the victim to be put in fear and kept in fear.[3] In the scheme of blackmail cases more generally, the period of the demand's operation and its scale was relatively confined.

Your participation in these events was considered, though, I find, was simultaneously naïve. You were understandably offended by deceptions, and you had gone to the police about them. You had incurred costs as the result of your involvement. But then you then failed completely to exercise any proper judgement, which was to cut your losses get out of this scenario. I will not attempt to neatly classify your offending in any particular category; it is sufficient to note that for a person without prior convictions this is a pretty serious place to start. However, I will err on the side of finding that the genesis of your conduct is rather naïve than sinister.

[3]R v Vo (Unreported, Supreme Court of Victoria Court of Appeal, Phillips CJ, Callaway and Batt JJA, 14 May 1998) 5. (‘R v Vo’)

Victim impact statement

53Turning now to the victim impact statement, Mr Naumenko read his victim impact statement to the court and through your counsel you acknowledged the terrifying nature of what was done to him. Mr Naumenko was injured to the face and head and still experiences feelings of fear about what happened. I listened to him read his victim impact statement and I take into account the effect of your offending on him.

Criminal record

54You have no prior convictions and in the nearly three years since these events unfolded you have no new matters arising. I find you are a person of good character, more of which I will note in a moment.

Matters in mitigation

55Turning now to matters in mitigation.

Plea of guilty

56First, your plea of guilty. I accept that your plea is both objectively and subjectively valuable. A committal exposed serious weaknesses in the prosecution case which might have tempted some to conduct a trial as an exercise in proof of guilt of the victim. Whatever the wisdom of that course, you steered your case to a resolution many months ago and, through no fault of your own, have had this matter overhanging your life until today.

57At any time, your plea would be acknowledged as delivering a strong utilitarian benefit; a trial of some weeks' duration has been rendered unnecessary; but at this time, when the backlog of cases awaiting trial threatens the proper administration of justice, your plea demands an additional and palpable benefit and I make it clear to you that were it not for this factor your sentence would have been significantly more stern than the one I will impose today.

58You are the first and only person charged to plead guilty so far in this case, and this bespeaks an independence on your part, and I find that your plea contains more than regret, but indicates actual remorse, and a genuine acceptance of responsibility. The openness with which you have conducted yourself with your friends and family and colleagues, patent in the written references, supports this view. According to the letter of Dr Nahavandian, you have been made sleepless by these events, a fact which I am sure has made your life difficult, but which does pay compliment, at least, to your conscience.

59I appreciate that your plea of guilty means you forewent any chance of an acquittal, even an undeserved one.

Hardship of arrest and custody

60Turning now to your arrest and custody, I note that you, a person with no prior convictions, spent five days in custody, having been arrested as you attempted to join your family on a planned trip overseas. The circumstances of your arrest were particularly sharp, and an unbecoming version of that process. Because the investigation was unfolding simultaneously elsewhere, you were not permitted to call your family until several hours had elapsed, during which your wife, unknowing of any of this, was waiting for you to join her and your children overseas. You offered your cooperation with police at this time. You answered questions in your record of interview to the degree you felt it prudent to do so.

61You spent five days in the Melbourne Custody Centre, in a violent and humiliating environment, where you were subject to the ignominy of being strip-searched by someone you had previously been at school with. I accept that the entirety of that process has made a significant impression on you.

Losses

62You had much to lose and did lose much by reason of your participation in this offending. You have lost some of your carefully accrued professional reputation, and, as a consequence, some of your clients.

63You have been treated for anxiety, depression and sleep problems since being charged in July 2019, and you have sought help from Dr Nahavandian for these problems; an inability sleep is one of the foremost of these, it would seem. Your counsel submitted that these conditions arose out of and were inextricable with this court process. I infer that you are someone who, but for your involvement in these matters, is of good mental health.

Delay

64Turning now to delay, you have had this matter hanging over your head since July 2019 although you resolved your case in September 2021. I regard this as a relatively early plea in the circumstances of this case. I accept that both limbs of delay as mitigation apply to you: it has been punishing for you to await the end of this case; moreover, you used this time to rebuild your business and tend to your family. The regularity of such delay does not reduce its significance for you and for this sentence.

65I note that throughout this period of delay there has been significant publication of these events in the media, and you have undertaken the process of repairing the consequential damage to your business, and you have complied with your conditions of bail throughout.

Prospects of rehabilitation

66I find that your prospects of rehabilitation are excellent, by the number of referees from your personal and professional life who you seem to have invited into your distress throughout this adversity and, having done so, I infer they will also support your recovery from it.

67You are connected with your community. You have volunteered your company's time when you have seen a public good in the project. See, for example, Mr Lansell's reference. Examples are the unpaid work you did with the Royal Flying Doctor Service, the RSPCA, and a project to deliver tsunami relief in Thailand. Your volunteer work extends, as your counsel submitted, much beyond someone who turns up to the Bunnings sausage sizzle tent. You have a history of volunteer service to the administration of justice by being a registered independent third person for children and other vulnerable people in police custody. This involves taking calls at inconvenient times and being prepared to attend police stations, which you have done on an estimated 30 occasions.

68Your family and friends clearly care for you. You have been transparent with your remaining clients, some of whom have stood by you notwithstanding the media attention.

69I find in the end that these events represent something of an aberration in the overall context of your life.

Relevant sentencing principles

70Turning now to the principles that I must have regard to on sentence, I am obliged to sentence you in a way that deters other people from behaving in similar ways, but through me and this sentence your conduct must be denounced.

71The role for community protection from you is much reduced, I find, by the matters I have already canvassed, as is the role for specific deterrence, which I regard as negligible in this case. However, there is certainly there role here for general deterrence. People have to understand more generally that very serious consequences await people who attempt to enforce even lawful debts in unlawful ways. There is no place for any of that.

72Authority makes it plain that general deterrence should be given some emphasis in such a case. 'Blackmail [it is said] is an offence that is frequently hard to detect, especially where, as in this case, the perpetrator prays, or attempts to pray, on the fear that his or her conduct inspires.'[4]

[4]R v Vo 4.

Current sentencing practices

73Sentencing for this charge encompasses a broad range of culpability and therefore a broad range of dispositions. Broadly, the range I have looked at seems to include everything from an adjourned undertaking, to sentences involving many years of imprisonment.

74I have had regard to current sentencing practices. I was given a bundle of cases where other people have been sentenced for blackmail in this court, and received merciful dispositions of community corrections orders. Several of those cases involved very youthful offenders. I have also had regard to a range of cases where the result has been imprisonment.

75No particular case is exactly like yours, but I have had regard to the general landscape.

Submissions on disposition

76In this case, the prosecution submitted that a combination sentence was open to the court. Your barrister, Mr Norton, submitted for a community corrections order that does not involve a sentence of imprisonment, not even to the extent of the time you have already served. He also submitted that I sentence you without recording a conviction.

77First, to deal with the submission about non-conviction, I do not accede to Mr Norton's submission. I have considered this, as well as the content of s 8 of the Sentencing Act, and I find this matter, by reference to the nature of the offence, to be too grave to warrant that outcome.

78I have also considered the parties' submissions on disposition, and in particular the requirement for general deterrence and denunciation. Given your lack of prior history and the factors I have already dealt with, I regard the roles for protection of the community and specific deterrence to be of little or no weight in this sentence. You must, however, receive just punishment for what you did.

Disposition

79I do not sentence you to any term of imprisonment; I am obliged only to sentence you to imprisonment if I form the view that prison and no other form of sentence is appropriate in the circumstances, and I do not form that view. I am aware that the restrictive nature of a community corrections order is punitive; however, I will also impose a requirement of you to perform some unpaid community work.

80Balancing these matters the best that I can, and conscious of the seriousness of the offending and the statutory maxima, taking into account all the matters in mitigation on your behalf, I will sentence you to a community corrections order with an unpaid work condition, which will no doubt be cumbersome and inconvenient for you, and that is the point.

81I have been careful to not doubly punish you; I have taken into account the separate conduct giving rise to each of the two charges, though having assessed the context of the blackmail to include aspects of the injury charge.

82Pursuant to s 40(1) of the Sentencing Act, I will impose one community corrections order for the two offences, the order will commence immediately and run for a duration of 18 months or, pursuant to s 48C(7), will expire upon the completion of the unpaid community work condition that I will attach to the order. It is a condition of this order that you complete 150 hours of unpaid community work during the term of the order.

83I am now going to read out the core terms of the order:

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

(ab) you must comply with any obligation or requirement prescribed by the regulations;

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

(c) you must report to the community corrections centre specified in the order. I will come back to that in a moment. It appears to be the Melbourne Justice Service centre, but I will hear from Mr Norton about that. You must do that within two clear working days of today, being the day the order comes into force;

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

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

(f) you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you complies with the order.

84In addition, the following condition is imposed:

85In addition, as I have already said, I will impose the condition for you to complete 150 hours of unpaid community work.

86Mr De Silva, I should also tell you that breaching a community corrections order is in itself an offence punishable by three months' imprisonment.

87In a moment I will give you an opportunity to give some instructions to Mr Norton and he will have a word to you about the sentence that I have just imposed. For now you can take a seat.

Pre-sentence detention

88I note for the record but do not declare as part of this sentence the five days custody you served upon your arrest.

Section 6AAA reduction

89Pursuant to s 6AAA of the Sentencing Act I am obliged to state what sentence I would have imposed had you not pleaded guilty but been found guilty after trial and, doing the best that I can with that exercise, I state that I would have imposed a period of imprisonment of 18 months with a non-parole period of 12 months.

Ancillary orders

90I make the disposal order as sought.

91Mr Norton, an order is being prepared. Do you seek a moment to give some advice to Mr De Silva and see what he says about it?

92MR NORTON: It will be very brief, Your Honour, if I might just.

93HER HONOUR: Yes.

94MR NORTON: Yes. Mr De Silva has signed on the dotted line, Your Honour.

95HER HONOUR: An he understands his obligations pursuant to the order?

96MR NORTON: He does.

97HER HONOUR: And he consents to performing those obligations?

98MR NORTON: He does.

99HER HONOUR: Thank you. All right, is there anything remaining?

100MR NORTON: Not from my end, Your Honour.

101HER HONOUR: All right. I thank both counsel for their assistance. We will adjourn.

102MR NORTON: If Your Honour pleases.

103MS BURNETT: As Your Honour pleases.