Director of Public Prosecutions v Fraser

[2018] VCC 658

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01203

DIRECTOR OF PUBLIC PROSECUTIONS

v

RENEE FRASER

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2018
DATE OF SENTENCE:	23 April 2018
CASE MAY BE CITED AS:	DPP v Fraser
MEDIUM NEUTRAL CITATION:	[2018] VCC 658

REASONS FOR SENTENCE
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Subject	CRIMINAL LAW
Catchwords	Sentence – blackmail (1 charge)
Legislation Cited	Sentencing Act 1991 (Vic), Crimes Act 1958 (Vic), Bail Act 1977 (Vic)
Cases Cited:	R v Verdins (2007) 16 VR 269; R vO’Dwyer [2016] VCC 1084; DPP v Dalgliesh (2017) ALJR 91; Boulton v The Queen [2014] VSCA 342
Sentence:	Convicted and sentenced to a community corrections order for four years, including 250 hours of community service and treatment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Karamicov	Office of Public Prosecutions
For Accused	Mr P. Stefanovic	Emma Turnbull Lawyers

1HIS HONOUR: Ms Fraser who at the time of this offending was 25, and is now 28, having been born on the 8th day of May 1989, pleaded guilty to the one charge, in indictment G10301254, of blackmail, pursuant s.87(1) of the Crimes Act.  That plea was made in Ballarat during the circuit up there, and occurred on 22 February.

2The seriousness of this crime is demonstrated by the fact that Parliament, on behalf of the community, has prescribed that a person who indulges in this type of behaviour can be subjected to a maximum sentence of 15 years imprisonment.

3In addition, the Court was asked to take into account a summary matter which is a breach under s.31 of the Bail Act, of failing to appear at the committal mention of this matter on the 6th day of October of 2016, the maximum penalty that applies under the Bail Act is 2 years.

4The circumstances of the blackmail are, somewhat unsavoury. The pleading, as to the blackmail, is detailed as occurring on the 15th September 2015, and concerns demands made to Georgina Anderson.  These demands followed a burglary which occurred previously, during the time her son Jordan was staying in the building, which was not only Ms Anderson’s home, but apparently also her professional accommodation. 

5Earlier that year, the prisoner had had a relationship with Jordan.  In the burglary a video camera, upon which was recorded the victim's professional interviews with her clients, many being young children, and the particular SD card of that camera, were stolen.

6In September the first that the victim heard about the SD card having been disseminated, she would have been aware that it was stolen I presume, was a call on 14 September, from a person purporting to be the sister of the Ms Fraser, and advising the victim that the SD card was being held, and the potential use that could be made of it.

7The various text messages which comprised the menaces, and the demands for money by Ms Fraser, took place over a seven hour period on the 15th of September, from 10 o'clock through to 5 o'clock that night.  Indeed the victim was at the police station, when the last one was received.

8The original demand related to an allegation that there was $1,400 – I'm not sure to whom it was owed, but it was owed by Jordan, that is the victim's son.  Ms Fraser's bank account was the account to which this $1,400 was to be paid into.  Other texts confirmed that menace, and the threats to release the videos, and the impact that it may have as to the victims' professional standing and in particular to her clients.  In those circumstances this crime was a particularly heinous act.

9In the subsequent record of interview, conducted that day, Ms Fraser suggested that such criminality had been carried out by her sister.  She maintained that proposition, and indeed, when ultimately charged in January of 2016, as she is entitled, determined to have the matter heard by way of trial. The matter was resolved on 12 February 2018, when the plea of guilty was made.

10Exhibit B is the victim impact statement, I accept such impact. It is no doubt of great concern to the victim that the SD card is still missing, and has not been recovered.  As to the impact of the menaces and the circumstances and the upset, all of that seems totality reasonable, and there was no suggestion otherwise by Mr Stefanovic. 

11I am unable to determine what role this criminality had in her marriage breakup and the marriage hardship issues thereafter. As to her problems with VOCAT, her need for retraining and costs, it seems to me to that those alleged consequences are a bit out of field.  Further her concern as to the trial, and her decision to sell her home, all of those matters seem perhaps more related to safety issues coming about from the burglary, than this crime.  However, insofar as I am able to understand her concerns about this crime, clearly it was very heinous to threaten a professional in such a manner, with such an attack upon her professionalism and more importantly with the risk of her clients’ integrity being disclosed.

12As to the assessment of the criminality, I deem it as being objectively high, somewhere between mid-to-high on the range of heinousness.  I note that the prosecution asses it as being mid-range.  The matters that put it at that level in my view are the potentially devastating menaces to a concerned professional, and the seriousness with which the community views such actions.

13Pre-sentence detention is agreed at 17 days. Of importance, prior to this offending, serious though it is, Ms Fraser had not recorded any prior conviction.

14Thereafter however she appears to – I'm sorry, when I say that she had no convictions, she had had two relatively minor matters in comparison, subject to an adjourned bond for a period of 2 years for which she completed without issue.

15However subsequent to this offence for a period of six months from March 2016, she was subject to an ice addiction.  She committed a series of dishonesty crimes which were ultimately dealt with in the Magistrate's Court in October of 2017, when she was given a period of imprisonment of 167 days.  She had in fact previously served those days by way of pre-sentence detention.  She was also, on an earlier date, sentenced for a breach of bail, to 21 days.

16As I said she faces in addition to an indictable charge, a statutory charge as to breach of bail conditions.

17The learned prosecutor today has made submissions, she did not have any issues with my assessment, although perhaps the Crown was a bit lower as to degree of culpability.

18During the plea, on the prior occasion, the prosecutor indicated that it was the view of the prosecution that a community correction order, either of its own, or by way of a community correction order and a period of imprisonment in the sum of 17 days as suggested, was not appropriate, given the seriousness of the crime.  Subsequently, having been able to peruse Exhibit C, the community correction report, the prosecution maintained such stance, and made further submissions in support of that stance.

19Mr Stefanovic in his plea tendered his submissions, set out in Exhibit 1, dated 03/04/18.  In addition, he tendered an amount of material that I will come to.

20Insofar as the principles of sentencing, the learned prosecutor was at pains to stress not only the seriousness of the crime with which clearly I agree, but the fundamental principles that must be to the fore in a sentence of this type being:- general deterrence, importantly given the type of crime, public denunciation, and punishment of Ms Fraser.

21As I say Mr Stefanovic sought the CCO report, which has proved to be positive, and is tendered as Exhibit C.  He acknowledged the seriousness of this crime, and did not in any way dispute the assessment by me, and further accepted, given the seriousness, that immediate jail is clearly on the horizon.  However, for a number of reasons he submitted that this Court should not pass an immediate sentence of jail over and above the 17 days served.

22First of all was the plea of guilty, albeit late.  The Court accepts that such plea assists the course of justice, is utilitarian, and effects remorse.

23The question of genuine remorse, in this particular case is questioned by the prosecutor, indeed as a result of the community correction report.  There are other comments made by Ms Fraser on p.2 which do raise the issue of whether she fully understands, or has the appropriate insight as to her criminality, and whether she has effected genuine remorse.  Those matters of course have to be taken into account by me when considering the issue of rehabilitation.

24Mr Stefanovic further relied on the two and a half year delay, which has to be taken into account irrespective of cause.  However, it is not disputed this morning that such discount must be tempered to some degree.  Firstly by the fact of a 3-month delay caused by her failure to comply with the conditions of bail in 2016, and also by the fact, and there is nothing that can be matter of criticism against Ms Fraser, she was entitled and did take this matter to trial. However on the day the trial was to commence she then effected the plea, as is agreed by everyone, a late plea.  But she suffers nothing by having exercised, what is her right within our justice system.

25Mr Stefanovic further put the issues of sexual assault while a child, exacerbated by the assaults she reports were perpetrated upon her in remand, which should be taken into account by this Court on principle 5 in Verdins.  I note, from the reports made to CASA, set out in Exhibits 3a-c, she continues to have issues and concerns about this.

26Insofar as her health condition, I think that was put by way of background, as a further matter that would be of concern to the Court, though it would be managed in jail.  This Court relies on the authorities to provide appropriate management, indeed as evidenced by what they did on that day when she went to hospital for treatment of that issue, for a period of 3 weeks from October 2017.

27Exhibit 6 was not of particularly much help, that was the mental health plan, albeit containing a letter from her about the matters I have just referred to.  It is what it is.  It doesn't seem to assist the Court in anyway.

28I accept that Exhibit H, shows Ms Fraser has undergone programs, while in prison.  She has attended Alcoholics Anonymous, she has undertaken programs insofar as drugs are concerned. Given the unfortunate death of her sister Bianca in November last year, one would hope that what happened to her sister, would be sufficient to demonstrate the need for reformation.

29Mr Stefanovic was at pains to point out that while not a young offender, Ms Fraser had no prior offences, and no issues with Court until aged 25.  The matters before the Magistrate's Court, which I have already referred to, are convictions involving someone who is part of the drug milieu.

30These matters and the background of drug addiction, were offered by way of explanation as to why she became involved in crime, as she has in this case.  I don't know whether it explains why she would commit a crime as serious as this, but perhaps it just demonstrates what happens to people when they are so afflicted.

31Ms Fraser is a person who has strong family support, she has three children, they are still currently being raised by their father. However, Mr Stefanovic submitted she was a strong candidate for rehabilitation, and today tendered Exhibit 11, which at least shows for the month in which she gave samples, her advice and instructions to her counsel, that she has been drug free, and has been drug free since she came out of jail, could be correct.

32Clearly, as was agreed by all parties, the future rehabilitation of Ms Fraser depends totally upon her being drug free.  As I indicated, and asked Mr Stefanovic to ensure, and to assure me, which he did, that it is pointless if this Court hands down a merciful sentence, if 6 months down the track Ms Fraser, you are simply going to be back here.

33Anyway, the fundamental point was made that there has been no further offending since October 2017.  In particular as to the offending itself, while as I said Mr Stefanovic did not resile from its seriousness, he pointed to the circumstances that this particular serious crime involving the actions that I have described, was prescribed by a temporal period of some seven hours, between 10 am and 5 pm on that day in September.

34As part of the synthesis, which I must apply, he handed me the decision of O'Dwyer, which is a sentence of Judge Mullaly, [2016] VCC 1084. The learned prosecutor has referred to certain matters about that case, which differentiate it, and equally today, Mr Stefanovic has made further comments about it. Clearly, it has some similarities; it was a short period of criminality, even shorter than this, it involved a demand of much more money, and related to probably equally as heinous a menace, in the sense of a threat to disclose sexual improprieties. The prisoner equally at the time had no priors, but was a lot older. Judge Mullaly determined upon the principles relevant to the grant of a community corrections order, such should be granted.

35As I said to the learned prosecutor, I of course take Judge Mullaly’s sentence into account in the general synthesis of this matter.  But, as expressed more recently by the High Court in DPP vDalgliesh (2017) ALJR 91, [49], in the end I must deliver individualised justice to Ms Fraser.

36Ms Fraser has strong family support.  She has her sister Krystal and her mother, and they have been strong supporters of her throughout this hearing.  As I indicated the prosecutor maintained the submission that a CCO was not appropriate, and that such would not be sufficient by way of sentence to effect the principles of which the prosecutor rehearsed this morning.

37Clearly, if one is only looking at the objective criminality or culpability, there is only one option. However of course the sentencing process involves the totality of the matters set out by the Parliament in s.5 of the Sentencing Act.

38The balance here, I think, is exquisite. I want to stress that I see this as a very, very heinous crime.  To attack a professional in such a manner, only warrants that description.

39The full gamut of sentences is available to the Court, however, one of the most important factors stressed by the Court of Appeal for this Court to take into account is the maximum penalty prescribed by Parliament, which in this case is fifteen years.

40As O'Dwyer demonstrates, in the circumstances of that case a community correction order was granted, as is possible, should I deem it appropriate, in this case.

41I am required to consider the principles expounded in Boulton [2014] VSCA 342. When involved in such a fine balancing process, as in this case, it was necessary to return to Boulton and the words of the Court of Appeal. The analysis made at [74], [97], [111]-[114], and in particular so far as Mr Clements was concerned, paragraphs 275 and 276.  It should be pointed out of course that Mr Clements was a person who was aged 18 years at the time of his offending, he was and had pleaded guilty to two much more serious charges than this, both of which warranted a maximum penalty of 25 years.  

42In the Clements matter the Court said, [275],:

"Of course we do not suggest that it's certain or even probable that Mr Clements will be rehabilitated with a period of 5 to 6 years",

that's the period being spoken about, by way of being different to the sentence imposed by the sentencing judge. 

43They went on to say,

"Regrettably it's the experience of this court that young male offenders are prone to recidivism before achieving the relevant maturity, which tends to emerge during their 20's.  Nevertheless given the youth, and the particular circumstance of this particular offender, his positive attitude toward rehabilitation, and the significant involvement of his parents in its achievement, we think it likely to emerge within the space of 5 to 6 years, as to whether he is going to make a success of it.  If he does, there should be no need for further treatment or supervision."

44They go on in the next paragraph, given the exquisite balance here, to say:-

"It is a more difficult question whether a fine of $4,000 and a CCO of five to six years duration would be sufficient to satisfy the requirements of denunciation, deterrence and just punishment. But in this case we think it would be.  Although the Director submitted there is potential for an order to later be made, under 48M of the Act, for the reasons earlier stated, it must be assumed that Mr Clements will be required to complete a full term of a community corrections order,"

and the Court went on to make such an order.

45I refer to the analysis by the Court of Appeal of the role of the community correction order. This was necessary, because of the decision made by the Parliament to no longer allow the Courts to utilise, what this Court has found to be have been a most sensible sentencing option, that is a suspended sentence; and to thereby leave the Court with the option of either jail or a community correction order. Boulton himself was a 31 year old person, an armed robber, using a knife, Clements was an 18 year old who had committed two armed robberies and Fitzgerald, for when I was not the initial sentencing judge, was a 69 year old person, who was a schizophrenic, and had been involved in two common law assaults.

46The fundamental point is that, the Court said such sentencing scheme, as devised by Parliament, allows for such an order to be made in regard to serious crimes.

47The learned prosecutor raised one matter in regard to commenting on the O'Dwyer case, and that is the question of remorse.  The difference, and a fundamental difference in that case, was the immediate remorse shown by the Ms O'Dwyer.  There was no remorse shown in this case of course, until the plea itself, which does necessarily demonstrate genuine remorse.  However we have the further concerns expressed in Exhibit C, that is the CCO report.

48I take into account, that up to the age of 25, Ms Fraser was not addicted to drugs, and never had a prior conviction.  The spree of criminality "highlighted", if I used that word, by this most serious crime, one would hope is confined to the period in which she was so afflicted.  I am told, and she has strong support in this regard, and has taken steps to alleviate that affliction. There is no way, Ms Fraser that you are over your addiction, you may never be over your addiction, you need treatment and you need to understand that. If the circumstances you find yourself in this case isn't enough, the fate of your own sister should demonstrate that.  Clearly it is up to you.

49The prosecutor appropriately raises the issue, of have you shown appropriate remorse?  Are you a candidate the Court can be so merciful to as to take a chance, by giving you such an order and hoping that you do effect reform?  It is an exquisite balance, a difficult decision for this Court.

50I am, I must say somewhat in a better position to have some confidence about that by the positive screens, albeit those being for a month, that were tendered this morning.  As I say, I am not overly impressed with your excuse, and might I add, you will be required to take samples as part of your treatment in this matter. Something that personally affronts you will not be an appropriate excuse.

51In all the circumstances therefore, and after balancing the very important factors that the learned prosecutor highlighted this morning, taking into account all the matters that I have referred to, and put to me by Mr Stefanovic, and further re-visiting, if I put it that, in order to effect that balance, Boulton,  I do conclude, in this particular case, in particular because of the period of criminality being so aligned to her addiction, not in any way that that is put as an excuse, but as an explanation, and the fact that such criminality did not occur until she was 25, before which she has lived a crime free life, that there should be some confidence expressed by the Court, and indeed by community, that providing she does stay off the drugs, we can expect not to see her in front of this Court again.

52In those circumstances I am prepared to accede to the submission made, and supported by the report tendered today, Exhibit C.

53Mr Stefanovic, the CCO that I would impose would be for a period of 4 years.  I would require work hours to be 250 work hours, and I will not make an order that there be any reduction to those work hours by way of treatment, that she be subject to supervision, that she be subject to treatment for drugs and the evils of drug addiction, that she also be subject to treatment by way of therapy for overcoming inappropriate criminal behaviour.

54I think that was all that was recommended, was it not?  Yes, sorry, I am just looking for the report. 

55My intent is that there be one order for both of these offences, both the indictable offence and the bail matter.  In addition to that a fine of $2,500 will be imposed, and that fine to be paid within the period of 12 months.  You should indicate to your client that I do not grant extensions and I do not grant alternatives, I expect the fine to be paid.

56MR STEFANOVIC:  Yes Your Honour.

57HIS HONOUR:  If there is ultimately an application for extension, the only way it will be granted, is if a significant amount of it was paid.

58Assessment and treatment including testing was recommended under 48D(3), supervision ‑ ‑ ‑ 

59MS KARAMICOV:  Mental health, Your Honour.

60HIS HONOUR:  Mental health.  And I would impose alcohol – no, treatment for alcohol as well, and also treatment for – it's not mentioned here actually is it?

61MS KARAMICOV:  Is Your Honour thinking of the offending behaviour programs?

62HIS HONOUR:  Yes.

63MS KARAMICOV:  No that's not ticked here.

64HIS HONOUR:  No.  That's also what I would put on, the offending behaviour.  Sorry, it's the next page.  I apologise, as is the mental health. 

65I order that all those matters go in there.  In those circumstances given what I said to you Mr Stefanovic, I give you leave to talk your client before the document is drawn up.  As I said I do not want to waste her time, or the Court's time if she is not prepared to do what is required.

66MR STEFANOVIC:  Yes, Your Honour if I might have one moment.

67HIS HONOUR:  Yes.

68MR STEFANOVIC: Thank you.

69HIS HONOUR:  Madam prosecutor, I am told that there is an amendment now where previously I didn't have to do a 6AAA, I think I do now don't I?  Where there's a CCO over 2 years, is that right?

70MS KARAMICOV:  Yes, I think – I recall reading something like that Your Honour.

71HIS HONOUR:  We looked for it the other day, and it hasn't reached my Sentencing Act yet so, that's how well we're going keeping up with the changes.

72MS KARAMICOV:  I'll just look it up, Your Honour.

73HIS HONOUR:  I mean, my chambers copy is supposed to be updated by the librarian as to the most recent, and there is nothing in there.  I was told that by a prosecutor the other day when I gave a 4 year CCO.  

74MR STEFANOVIC:  Thank you, Your Honour.

75HIS HONOUR:  She understands?

76MR STEFANOVIC:  Ms Fraser understands, and consents.

77HIS HONOUR:  She won't need you Mr Stefanovic if she comes back in front of me in those 4 years.  You understand?

78All right?  That is on the transcript, and that is the first thing I will go back to if you come back in front of me.  You understand?

79MS KARAMICOV:  Yes, so 6AAA sub-s.1.

80HIS HONOUR:  Can you make a note of this Mr associate, be we haven't got this yet, I don't think.

816AAA sub-s.1?

82MS KARAMICOV:  6AAA sub-s.1(b)(i)(b) ‑ ‑ ‑ 

83HIS HONOUR:  And what does that say Ms Karamicov?

84MS KARAMICOV:  I'll read it out.

85HIS HONOUR:  Sub-section (b)(i)(b)

86MS KARAMICOV:  Correct, I'll read it out.

87HIS HONOUR:  Okay.

88MS KARAMICOV:  So, "If the sentence opposed on the offender is, or includes a community correction order for a period of 2 years or more, the Court must state the sentence, and the non-parole period if any, that it would have imposed but for the plea of guilty."

89HIS HONOUR:  Yes, well to the extent that I can comply with Parliament’s requirements, where they ask the Court to make a statement in regard to one aspect only, all I can say that is that I would have given Ms Fraser immediate jail. I can’t take it any further than that.

90For the benefit of the Court of Appeal, can I say, having made a declaration, means I do take into account the fact that Ms Renee Fraser has pleaded guilty, and I give her the appropriate discount for such plea.  If such wasn't obvious by the s.6AAA declaration, then I hope it is obvious now by what I have just said, to anyone.

91Unfortunately, given some recent pronouncements, it seems now trial Judges are going to have to say this every time.

92Madame prosecutor are there any other matters that I need to attend – did you ask for any other orders?

93MS KARAMICOV:  No, I didn't Your Honour.  I'll just check though, Thank you.

94HIS HONOUR:  I thank both counsel for their assistance in this matter.  Going back to, certainly as far as Mr Stefanovic is concerned back to Ballarat, earlier this year.

95MR STEFANOVIC:  Yes, it has been a journey.  Your Honour, I have now got from your associate the community correction order.  I may get my client to sign that.

96HIS HONOUR:  Thank you.  Yes, actually Ms Karamicov, had I looked at just the indictment it would have showed me that there was only 15th – there was no issue about your paragraph of the 14

97MS KARAMICOV:  The 14?

98HIS HONOUR:  It was by way of background?

99MS KARAMICOV:  Yes correct.

100HIS HONOUR:  I'm sorry, I did look at it, but didn't take it ‑ ‑ ‑ 

101MS KARAMICOV:  That's okay Your Honour.

102HIS HONOUR:  Where did you find that extra section?  Just in the – what did you look up then?

103MS KARAMICOV: I just looked up the Sentencing Act online.

104HIS HONOUR:  Online?  We should be able to do that, shouldn't we?

105MS KARAMICOV:  Yes.

106HIS HONOUR:  It certainly hasn't arrived in chambers yet. 

107Yes, Good luck Ms Fraser, and I don't want to see you again.  I say that in the nicest way.

108ACCUSED:  Thank you, Your Honour.

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