Director of Public Prosecutions v Ebode

[2021] VCC 72

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

      Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01100

DIRECTOR OF PUBLIC PROSECUTIONS

V

ADAM EBODE

Also known as  BELAL HERASAN

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	28 January 2021
DATE OF SENTENCE:	4 February 2021
CASE MAY BE CITED AS:	DPP v Ebode
MEDIUM NEUTRAL CITATION:	[2021] VCC 72

REASONS FOR SENTENCE

---

Subject: Criminal law - sentence        

Catchwords: plea of guilty to one charge of blackmail – threat to employer – offender was an aggrieved employee – previous conviction for serious kidnapping – Verdins not applicable – general and specific deterrence.   

Legislation Cited: R v Verdins

Cases Cited:DPP v Oksuz (2015) VR 731; Latorre v R [2012] VSCA 280; Loftus v R [2019] VSCA 24

Sentence: 6 months’ imprisonment and 12 month CCO.           

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	OPP
For the Accused	Mr D Sheales (plea) Mr D. McDonald (at sentence)	McDonald  Legal

HER HONOUR: 

1Adam Ebode, you have pleaded guilty to one charge of blackmail, an offence you committed between  22 and 24 January 2019.  I will be sentencing you to a prison term of six months, combined with a Community Correction Order.

2During most of 2018, you had been employed by Wyndham Vacation Club Melbourne, a multi-national business marketing timeshares in the hotel chain, it operated throughout Australia and Asia. 

3Employed as a sales consultant, earning an annual base salary of $40,000, you also earned commissions from which the base salary was deducted.  Commissions were earned from sales made following seminars held for interested customers.  You and a group of about 10 other employees became aggrieved when commissions remained unpaid.  Telephone calls to management were unanswered and employees took to using false names in attempts to have their calls answered. 

4In November 2018, a peak performance plan was put in place, but you believed this was designed for failure, as the work was not made available through seminars.  It was then suggested that you resign.  You and the other employees believed that a new manager intended to replace you with his own staff from overseas.  This, combined with workplace bullying, resulted in you suffering from stress and you ceased work in late-November 2018 and made a WorkCover claim. 

5WorkCover supported your claim for a work-related psychological injury and you engaged in psychological counselling.  A liability document, Exhibit 1, dated 24 January 2019, obtained under Freedom of Information legislation discloses this background with the comment that there were reasonable grounds on the part of management to appraise your performance.  But the action taken by management was not reasonable, hence the claim was accepted, and weekly payments were made to you. 

6On 15 January 2019, purporting to be one Allan Dodds, you called the office of Barry Robinson, president and managing director of Wyndham Vacation Clubs, asking to speak to him.  Robinson, who was overseas at the time, called you back and you identified yourself as Dodds.  You told him that you were a private investigator and that you were in possession of videos of employees of the company using cocaine at Christmas and New Year's Eve parties. 

7You threatened to go to the media and bring the business down.  You asked Robinson to return from overseas to meet you and view the videos so that a resolution could be worked out without going to the media.  Robinson organised Bruce Harkness, a senior office holder to meet you.  You told him the videos represented a big problem which needed to 'go away'.

8You met with Harkness and told him your real name.  You showed him two short videos on your phone of a man snorting white powder.  You referred to a video of a gang rape at a party, and you showed him an email you said you had received from a woman from the media, offering $65,000 for the videos.  You provided a deadline to Harkness of 6 pm on 22 January. 

9The company decided not to enter into any financial agreement with you and reported the matter to the police.  Two days later, Harkness confirmed with you what it was you were demanding, and you extended the deadline until 3.30 pm that day.  The company did not make any payment to you. 

10Police were unable to find you until May 2020, when you were arrested for other matters and then interviewed for this offence.  You made some admissions, but denied demanding money or blackmailing, while explaining that you had been trying to take legal action against the company on behalf of yourself and 10 or 11 others.

11The crime of blackmail is punishable by a maximum penalty of 15 years' imprisonment.  It has the potential to cause very considerable fear in the community, and victims might be easily deterred from reporting it to the police and consequently, the need for general deterrence is important. 

12You demanded a considerable sum of money and made persistent demands, one of which was a request for Robinson to fly back from overseas to meet you.  As it was, Harkness came from Queensland.  You used a false name and claimed initially to be a close friend of Robinson, then claimed to be a private investigator.  You created a fake identity of a purported journalist in order to lend credence to your demands and showed fabricated videos to Harkness when you met him.

13As the prosecution submitted, this had the hallmarks of a well-considered deception and was not an impulsive one-off offence.  It had the potential, according to your threat, to bring down the business.  Despite that potential, the victim was a company and not an individual, so the threats could not have induced the same fear as they might have.  The threats and demands were limited to two days' duration and were quickly identified as lacking any real credibility.  Accordingly, in this context, the objective gravity of the offending was not at a high level.

14There were some extenuating circumstances which lead me to consider the submission by Mr Sheales, on your behalf, that the principles in the case of Verdins are enlivened. 

15Your grievances had some justification, as demonstrated by WorkCover's acceptance of your claim for psychological injury.  You were diagnosed at that time with an adjustment disorder, which is still the current diagnosis, according to Mr Lake, the psychologist who assessed you recently. 

16Mr Lake described your offending behaviour as impulsive and ill-judged, with a tendency for immature insight and judgment.  However, the evidence of planning and preparation for the offence suggests behaviour that was not impulsive, despite being ill-judged.  You had the capacity to consider the culpability of your intended plan, and there is a lack of nexus between the offending and your mental disorder which could justify a finding that the principles in Verdins apply. 

17As to your background, you are a 37-year-old single man, born in Afghanistan, who came to Australia, as a child of five, via refugee camps in Pakistan.  Your parents are hardworking people who have done well in Australia, and your three siblings are all successful people.  You remain close to all of them, and you still live your parents and a sister. 

18In 1983, when you were aged 20, you were convicted with others of kidnapping a five-year-old girl and other offences arising from the same incident.  You were sentenced to a total of seven years' imprisonment, with a non-parole period of four years.  This was the subject of a successful Crown appeal and the sentence was increased to 10 years, with a non-parole period of seven years.  The offending was extremely serious, and the fact that it occurred so long ago des not derogate from that. 

19To have served a long prison term and to have committed a further serious offence years later indicates that your rehabilitation has not been complete.  Indeed, in 2013, you were placed on a suspended prison sentence for stalking and contravening a family violence order, which occurred in the context of the break-up with your then fiancé.  You did not breach that suspended sentence and you now have an established relationship with a different partner. 

20During the years since your release from prison, you have worked hard and successfully, in the manner of your family, and accumulated sufficient capital to underwrite a car selling business, which you commenced after leaving Wyndham.  You are now taking a course in automotive studies in order to better equip yourself for this work. 

21Clearly, you are capable of making a worthwhile contribution to society, but
Mr Lake identified your vulnerability to being destabilised by external pressures.  He considered that with the development of insight, your risk of reoffending will be reduced, with a need for long-term counselling and support at times of potential high stress. 

22I have already referred to the importance of the need for general deterrence, and of the firm denunciation of the court in relation to offending such as this.  There are several mitigating factors in your favour, as I have set out, in addition to which you pleaded guilty and are therefore entitled to a discount on your sentence for having avoided the inconvenience and experience of a trial.  The recidivism you have demonstrated also indicates the need for specific deterrence. 

23In determining the type of punishment I should impose I have been referred to several other cases.  But in most cases, the charge of blackmail was part of wider offending, so the particular sentence imposed of that crime must be viewed against that background. 

24For example, in Latorre[1], the instances of blackmail were of a very high order, with property destroyed and victims fearing for their lives.  The sentence for blackmail was four years.  In DPP v Oksuz[2], the sentence of two years and six months imposed for blackmail was not altered on appeal while a sentence overall was increased.  In Loftus[3], the sentence for blackmail was 18 months where, as in this case, no violence was involved, but there, the offending related to a very valuable asset which was placed under threat by the offender. 

[1] Latorre v R [2012] VSCA 280

[2] Oksuz(2015) VR 731

[3] Loftus [2019] VSCA 24

25Your prospects of rehabilitation can only be said to be guarded because of the weight I must place on the previous conviction, despite its age. 

26Mr Sheales, who appeared on your behalf, submitted that a prison sentence is not required and that a Community Correction Order is appropriate, as it would provide the opportunity for continuing counselling support and enable you to continue living your current stable life. 

27The prosecution position was that your offending was not of a low level, but appears to be closest to that of Loftus, where a prison sentence was imposed.  Given the disruption caused by your threats and your persistence, I agree that it was not at a low level, and your grievance, however justified it may have been, did not reduce the moral culpability of your actions.  That much you seem to have appreciated as you admitted to Mr Lake that it was stupid, and you could not believe you did it. 

28A prison term is necessary as punishment for a serious offence such as this, both to deter others and also reduce your risk of reoffending by reinforcing the need for appropriate punishment. 

29I sentence you to prison for six months, and impose a Community Correction Order for which you have been assessed as suitable.

It will begin the day you are released and will last for 12 months, and you must be under supervision and must undertake mental health treatment.  You must report to Dandenong Corrections office via telephone within two working days of your release. 

30I should add that I have taken into account in sentencing you, the fact that prisoners currently must undergo 14 days of quarantine and are then subject to the various restrictions that are operating now in prisons for an indeterminate time, although I believe there has been some lifting of those restrictions in recent times.

31If you had pleaded not guilty to this charge, I would have sentenced you to 10 months' imprisonment and a correction order of 18 months. 

32Now, Mr McDonald, the order is ready for Mr Ebode's signature; would you like to accompany my associate to the dock with that? 

33Now, Ms Malobabic, are there any other matters that I have neglected or omitted?

34MS MALOBABIC:  No, Your Honour, thank you.

35HER HONOUR:  Mr McDonald, anything further?

36MR McDONALD:  Nothing, Your Honour, thank you.

37HER HONOUR:  Thank you. 

‑ ‑ ‑