Director of Public Prosecutions v Henry (a pseudonym)

[2022] VCC 771

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MONIQUE HENRY (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE SYME
WHERE HELD:	Melbourne
DATE OF HEARING:	25 May 2022
DATE OF SENTENCE:	27 May 2022
CASE MAY BE CITED AS:	DPP v HENRY (A PSEUDONYM)
MEDIUM NEUTRAL CITATION:	[2022] VCC 771

REASONS FOR SENTENCE

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Subject:         Blackmail

Catchwords:  Blackmail – $700,000.00 - malicious intent – vigilante offending - limited insight and remorse - dysfunctional family background - post-traumatic stress disorder - schizoaffective personality disorder - personality traits. 

Legislation Cited: Crimes Act 1958 (Vic)

Cases Cited:

Sentence: Community Corrections Order of 4 years duration.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Michelle Zammit	Office of Public Prosecutions
For the Accused	Mr Alan Hands	Adrian Paull Criminal Lawyers

HER HONOUR: 

Background

1Ms Monique Henry[1] has pleaded guilty to one count of blackmail.  The maximum penalty for that offence is 15 years' imprisonment.  I note, Ms Henry, you have no prior convictions, and this fact entitles you to leniency notwithstanding the seriousness of the offending.  As set out in the prosecution opening, the facts relevant to the offending are not in dispute.  Further facts concerning your motivations can be found in your oral evidence given during the sentence indication hearing. 

[1] A pseudonym.

2The relevant facts are that both you and the victim knew each other in mid-1974.  You both used to live overseas in the same country and had met socially on two occasions.  You did not have any further contact with the victim from that time until February 2021.  You, having researched his work credentials and address online, subsequently sent a letter to him. 

3He received this letter on 28 February 2021.  It contained a very clear threat that unless he paid you the sum of $700,000.00 within a specified and relatively short period of time, you would write letters to others alleging that he had sexually abused you while you were a minor.  You threatened to tell his family, his work colleagues, and the world in general if payment was not made.

4The threat was repeated many times throughout the letter.  The letter also contained what I find to be an angry rant about the victim's alleged past misdeeds and lack of apology for same.  There is no indication that any rapprochement had been sought prior to this contact. 

5In the course of the two-page threat, you made it very clear that the effect of those threats, when you carried them out, would be for the victim to lose his career and reputation, alongside the respect of his family.  Further, his professional organisation and patients would question his work for the entirety of his career.  The potential damage would not only be to him, but to other innocent parties.

6You pointed out that he would, in effect, be considered guilty if you publicly made the allegations.  He would then need to prove you a liar.  You acknowledge that the damage you threatened may be catastrophic and, in any event, irreversible.  The threat was a very serious one, a threat which I find to have been made with malicious intent.  In your evidence in court, you agreed that the purpose of the letter was to satisfy your own personal need for revenge.

7You believed, and apparently still believe, without any cogent support, that the victim of your blackmail threat destroyed your life.  The demand for a very large amount of money was detailed and there is no doubt that the act of sending the letter was a planned event.  Having said that, your offending was probably no more planned than any other similar type of offending.  As a result of receiving this letter, the victim immediately sought legal advice and ultimately went to police.

Investigation

8Investigators searched your premises and seized further information and evidence.  They seized a laptop, a printer, and a copy of the letter which was sent.  When you sent the letter, you included your full name and address so that the first instalment of $100,000.00 would be forwarded by bank cheque. 

9In May 2021, you were interviewed by police.  You told police that, 'he was blackmailing me, so I was blackmailing him.  I gave him an option.  Tell him I'll ruin his career'.  This statement to police was, and can be observed, in effect, to be a continuation of an unhinged and bizarre point of view which you seemed to possess at that time.  You had apparently been working up to this with what I observed to be an obsessed and vindictive state of mind, for a few months.

10You were entirely unrepentant about having broken the law.  In considering your education, your understanding and your desire to destroy the victim's career, your apparent belief that what you had done was not illegal does not make sense and I do not accept it.  I now turn to the plea.

11You indicated a plea of guilty to this matter after a sentence indication hearing.  You are entitled to consideration for that early plea.  As mentioned earlier, it is important to note that during the sentence indication hearing, you gave evidence. 

12In your evidence before the court you indicated that since January of this year, you had been receiving some counselling about past matters in your life.  You expressed that you were no longer angry at the victim and no longer wished to 'punish him', in your words.  I observed that on your self-report to
Ms. Cidoni, a psychologist, you reported that there are many issues concerning your past life which affect your current presentation. 

13You do not resile from your belief that the victim of this crime sexually assaulted you many years ago and it was made clear to you that the alleged event is entirely different from the serious criminal act that you undertook in 2021.  Your belief, even if it were true, does not justify what is in effect, a vigilante response.  Almost, by definition, a vigilante response is incapable of producing a just outcome.  I now turn to your current personal circumstances.

Personal circumstances

14In considering your current personal circumstances, I note that you are now in your 60s.  You have resided in Australia in various places since the 90s.  You have no criminal record.  A report prepared by Ms. Cidoni was tendered by consent and sets out your background of study in science and your completion of a diploma in teaching and teachers training courses overseas.  The report sets out that you have commenced, but not completed, many other training courses.

15You have worked in various positions, including as a teacher, over the years.  In your self-report, you have also been employed as a cleaner and a house-sitter.  You were also reportedly assisting some environmental investigations presently. 

16As you have reported, some of your teaching positions were terminated due to your behaviour.  You told the court that from time to time over the years your behaviour may have been detrimentally affected by the consequences of taking prescribed antipsychotic medication over the years.  The only information on this issue is your self-report. Unfortunately, the reporting psychologist did not avail herself of any independent confirmation of that self-report.  Your mental health history ought to be further explored.  I now turn to mental health considerations.

Mental health presentation

17Regarding your medical and mental health history, it appears to be contained without controversy in Ms. Cidoni's report.  You report that an inherited medical condition causes you some difficulty from time to time.  You report what can generally be described as a dysfunctional family background from when you were a very young child.  You report that your childhood was marred by a lack of support, and neglect, which was possibly due to your father's physical illness.

18Your mental health history is replete with difficulties, and you report having seen many doctors over the years and having been diagnosed with many forms of mental illness.  As I observed above, you have been prescribed antipsychotic and anti-anxiety medications on many occasions over the years. Your current position is that they did not and do not do you any good and that they have caused you harm.

19Ms. Cidoni undertook an appropriate array of tests which she appears to be qualified to interpret.  In summary, she reports that you present with considerable distress and maladjustment linked to your negative childhood experiences.  You describe an adverse childhood, and you described an alleged sexual assault at age 14.  As I made clear in your sentence indication hearing, and as I will make clear again, your belief that you were sexually assaulted by the victim in these proceedings, or by anybody else, is not a matter of mitigation. 

20Suffice it to say, psychometric testing interpreted by the psychologists suggests that you have symptoms consistent with post-traumatic stress disorder, schizoaffective personality disorder and borderline personality traits.  It is observed that the nature and severity of your symptoms as of January 2022 were considered to be moderate to high and affected your mental capacity, your thoughts and your behaviours. 

21In giving evidence in the current proceedings, you accepted, calmly I might add, that you understood exactly what you were doing when you sent the letter to the victim.  You understood the serious nature of the allegations you were making, and you planned to send the letter to him in order to cause him distress.  You say that since you have commenced counselling in January of this year, you have come to better accept the revenge that you sought against the victim is something that you say you no longer require.

Plea of guilty and remorse

22This is a long way short of expressing any form of regret or remorse for having committed the offence.  In considering your mental health presentation, this is not unexpected.  You have accepted the inevitable by pleading guilty to this matter.  While a plea of guilty can sometimes be taken as evidence of regret or remorse, it is not possible to make such a finding in this case.  Your insight is limited.  That gives cause for concern in relation to you committing an offence such as this in the future and is a matter that will be addressed in other ways.

23Ms. Cidoni is of the view that your personality disorder and mental illness impacted on your decision making and actions regarding the offending.  I do not accept that this is necessarily the case, although I do accept that, for whatever reason, this was probably to do with your background and as a person with a maladaptive personality.  Again, that is not a matter in mitigation.

24I also accept that you believe the actions you took, and the revenge that you sought, were appropriate in the circumstances.  I accept that you no longer believe this to be the case.  However, your change of heart has been for your own personal benefit and not because you genuinely believe, nor accept, that what you did was wrong.  This creates a complex sentencing background.  You have no remorse or even regret for the offending, except, perhaps, as it has affected your own life.

25I am concerned that you do not believe you should be subject to an indefinite order restraining you from contacting the victim or restraining you from making publications about the victim in any form, including telling other people what your allegations were or are or airing those allegations in any public forum.  Your reasoning is that you do not want such an intervention order against your name and that reason is nonsensical.

Intervention orders

26I therefore state on the record now that it is my view that an indefinite intervention order should be made to restrain you from making the allegations similar to the allegations made in the letter in any way in the future to any person or organisation or publishing such allegations in any way except by way of a proper report to police and/or justice authorities which you say has already been made.  I further state this portion of my decision should be allowed to be, if necessary, transmitted to the Magistrates' Court when they are considering any extension of the order that is currently in place as I understand it, for another year.

27I further observe that if any extension of the order is opposed by you, and the victim thereby incurs further costs, that it would be fair from where I am sitting, to recommend that any future court at least consider a costs order against you if such a hearing becomes necessary.  I now turn to sentence considerations.

Sentence considerations

28I accept that your presentation and mental health issues would be exacerbated by a lengthy period of imprisonment or indeed any period of imprisonment.  I accept that a period of imprisonment will do little to specifically deter you from repeating this kind of behaviour in the future.

29You seek that this matter be dealt with without a conviction being recorded and that you be placed on a good behaviour bond or a community corrections order without conviction.  Such a disposition would be inappropriate considering the serious and planned nature of the offending.  It would be further inappropriate given the intent that you clearly had, which you admit, was an intent to destroy the victim's good standing by removing a very large amount of money from him.  It is a very serious offence.

30I have already observed that the revenge you sought is unrelated to what you believe occurred to you.  You spoke in your letter to the victim of your distress, among other things, of a lack of apology to you.  However, when you did contact him decades later, you did not seek same but sought greedily and maliciously, a very large sum of money.  This form of contact, I observe, has not served to enhance either your credibility or reliability and therefore, the plausibility of your original complaint. 

31I note the maximum penalty for this offence is significant and that an offence such as this is properly dealt with by way of a significant term of imprisonment.  Looking at the cases that I have had given to me, I observe that each case is unique and turns on a diverse set of objective and subjective facts.  Imprisonment is a proper consideration in this case. 

32However, I do not believe an imprisonment sentence is the only way of dealing with this matter.  You have the advantage of prior good character which entitles you, as I said before, to some leniency.  From your own self-report, you have experienced, over many years, symptoms consistent with a variety of mental illness conditions.  You currently do not accept that you suffer from any mental ill health but you do find counselling useful.  I am prepared to accept that your behaviour is not characteristic of the way you have operated throughout your life, and having heard evidence from you, I accept that it is uncharacteristic.

33I can make a finding that you have taken alternative steps in order to deal with your current situation, your mental health, and your beliefs.  However, in order to ensure that you remain under supervision of some mental health oversight, I propose to make it a condition of the order that I will place you on. 

34I have now had access to the pre-sentence report.  It states that you are suitable for a supervised community corrections order, including treatment for mental health issues.  Forensicare have reported that they agree you do require ongoing mental health treatment and that that treatment is available for you. 

Sentence

35I propose to place you on a community corrections order for a period of four years.  During the operation of the conditions of the order, which I understand have been explained to you, you must not commit any further offences and you must accept the supervision of corrective services. This includes following their lawful directions with respect to your treatment and other supervision requirements.  There will be conditions of the order that you continue such treatment or assistance, as required, in order to address your mental health issues and further participate in other mental health therapy, as directed, after assessment.

36Given that you will be required to undertake further mental health assessment, Community Corrections have received a copy of Ms. Cidoni's report and will no doubt direct further counselling after you have finished your current counselling sessions.  I have no doubt that your current counsellor will have input into your needs.  It is also appropriate that you complete unpaid community service work by way of specific deterrence for you.  I propose 300 hours to be an appropriate amount of hours to perform.

37I observe that, in the past, you have been a member of various community agencies and have done various pieces of voluntary work.  No doubt the requirement that you complete further unpaid work for the community will not sit harshly upon you.  The requirement that you complete unpaid community service work is a way of reminding you, and signifying to the wider community, that matters such as this are serious and must be dealt with appropriately.

38In addition, I propose to make it a condition of your Community Corrections Order that you do not contact the victim of this event, the victim’s family members, or the victim’s employer, in any way. I make this order pursuant to section 48F of the Sentencing Act.  This will extend to electronic communications.  In addition, you must not contact any media organisations or use social media platforms such as Facebook and Twitter and the like so as to make allegations against the victim in similar terms to the blackmail letter contents. 

39This restriction has one exception and that is to contact police authorities to make statements to appropriate authorities for the purpose of making any formal police complaint.  I note from the evidence that you have already made a formal police report so further reports ought not be necessary unless sought by investigators.

40As to recording a conviction, it is appropriate that those who employ you are aware of the criminality of your behaviour when considering future employment.  If you work with children, any criminal record must be transparent.  It is not a mitigating matter that you may have believed at the time that the actions you took were not illegal, nor is it a mitigating matter that you may have believed such conduct was justified.  It is important that the community understand that matters of this nature must be dealt with swiftly, by conviction and with appropriate punishment.

41In making this order I am taking into account that you entered the plea immediately after a sentence indication hearing.  As far as I am aware, this matter had not been set for trial.  On the information I have read, had the matter proceeded to trial and been before me, I would expect to have been making an order for imprisonment in the order of 12 months and that is my section 6AAA finding.

42With respect to the disposal order, I propose to make an order for disposal of the items which are included in the Schedule save for Exhibit 10 which concerns the Laptop and the HP Deskjet Printer.  As I noted in the sentence indication hearing, these items, while used in the commission of the offence, are easy to replace and a disposal order would serve little purpose in relation to them.

43My first question, Ms Henry, do you understand the order that I propose to place you on?

44OFFENDER:  Yes, I do.

45HER HONOUR:  Thank you.

46OFFENDER:  I had some confusion at something you said but I've got a clear idea of what you've - the whole Community Correction Order at the moment, yes.

47HER HONOUR:  All right.  Let me go through the terms of the Community Correction Order and then I will ask if you have questions in relation to any other issue which I would be happy to address.  Firstly, the terms of the Community Correction Order.  It will be for a period of four years.  Conditions of the Community Correction Order are obviously that you not commit further offences during the course of the Community Correction Order.  If you do that will result in a breach of the Community Correction Order.  You must not leave the state without the approval of your supervising officer and if you change address you must tell your supervising officer within two days. 

48You will have to accept supervision, you will have to accept supervision with respect to further mental health assessment and accept treatment as directed.  You will be supervised by a Corrective Services officer and there is a total of 300 hours of unpaid community service work that you will be required to do.  First of all, do you have any questions about those particular conditions?

49OFFENDER:  No, none at all.

50HER HONOUR:  Is there something else you would like to clarify, and I just ask you first, do you want to clarify that with me or do you want to clarify it with
Mr Hands?

51OFFENDER:  I texted Mr Hands when you were speaking to say I don't understand what you said, but I specifically can't remember - - -

52HER HONOUR:  What it was.

53OFFENDER:  What it was.  Yes, I had been taking notes but it was something that you said that was -  I just didn't understand.

54HER HONOUR:  Did not quite make sense as I said it.  Yes, that can happen.

55OFFENDER:  No, there were quite a few things that didn't entirely make sense but one specific one I didn't understand.

56MR HANDS:  Your Honour, one that I had trouble with was in relation to the intervention order in relation to your order.  I thought you said it was to be general and you were going to make it in terms of all people not just the victim.  I think I must have misunderstood.

57HER HONOUR:  Victim, victim's family, victim's employer is one part of the order, and secondly not to contact media or media organisations, including the use of social media, in order to make the same sort of allegations that she made in the blackmail letter.

58MR HANDS:  Yes.  I thought, initially, it was a general order against the whole world but I must have misunderstood.

59HER HONOUR:  No.  Specifically, I am not stopping your client from, for example, using Facebook but from using Facebook, in order to make these allegations.

60MR HANDS:  Yes, I understand.

61HER HONOUR:  I have made it very, very specific.

62MR HANDS:  Yes, thank you.

63OFFENDER:  Can I get some clarity on that?

64HER HONOUR:  Yes.

65OFFENDER:  So, I can technically discuss my sexual assault provided it does not reflect in any way on Jon Brooks?[2]  So, in other words, if I wish to, um, use my own sexual assault and discuss how it impacted me and, um, how I have addressed it in any way, as long as I leave out any reference to Jon … to anything else.

[2] A pseudonym.

66HER HONOUR:  Yes, any reference to the victim of these proceedings or anything that might tend to identify the victim.

67OFFENDER:  Yes.  That I understand, yeah, so that doesn't stop me speaking on my own behalf about my own sexual assault.

68HER HONOUR:  It does not stop you speaking on your own behalf in any way that you think is appropriate, but just to take care that it not mention Mr Brooks or anything that might tend to identify him.  That is the fine difference.

69OFFENDER:  Yes.

70HER HONOUR:  Do you consent to those orders being made, ma'am?

71OFFENDER:  Yes, I do.  I consent to that.

72HER HONOUR:  I will ask you that, because in normal circumstances if you were here in person, you would now sign the order and then I would sign the order, so what we're going to do now is, I believe my Associate has got your email address; is that right?  What we will do is we will send this perhaps via
Mr Hands to you so it can be signed and returned within seven days.  If you can give me a copy of it, I will read it out to her.

73OFFENDER:  Can I go into the courtroom and sign that documentation?

74HER HONOUR:  Yes, we can actually send it there, by all means.  Yes, if that is easier then we can do that.  I will just read out the formal parts of the order so you understand what you are going to be asked to sign.

75The order will last for four years.  Firstly, you must attend the appropriate Community Corrections Services location as directed within two clear working days after the commencement of this order, so two clear working days is Monday and Tuesday.  We will make sure that this order is sent there, and you can sign it there, ma'am, that is probably easier for everybody.

76The mandatory terms that apply to all community corrections orders are:

(1)  You must not commit another offence for which you could be imprisoned during the time the order is in force;

(2)  You must comply with any obligation or requirement prescribed in the regulations;

(3)  You must report to and receive visits from the Secretary or delegate, and that means report to and receive visits from your supervising officer when required to do so;

(4)  You must report to a community corrections centre within two clear working days, as I have said;

(5)  You must let a community corrections officer know within two clear working days of you changing your address or your job;

(6)  You must not leave Victoria without first getting permission from the Corrective Services delegate;

(7)  You must obey all lawful instructions from the Corrections Services Secretary or delegate;

(8)  Unpaid community service work, 300 hours over the period of four years as directed;

(9)  Supervision for a period of four years as directed;

(10)   Treatment and rehabilitation.  You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager, including further counselling;

(11)   You must not contact or associate with the victim, his family members or employers;

(12)   You are permitted to contact police authorities to make statements to appropriate legal authorities for the purpose of making any formal police complaint. This non-association condition extends to electronic communications.

(13)   You must not use any electronic media, including social media platforms such as Facebook, Twitter and the like in order to make allegations against the victim concerning the contents of the blackmail letter for a period of four years.

77OFFENDER:  So, I can be forced into hospital or I can be forced to take drugs?

78HER HONOUR:  The treatment rehabilitation condition is that you must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager, including further counselling.

79OFFENDER:  So, I can be forced into hospital, forced into being drugged?

80HER HONOUR:  You must undergo any mental health assessment and treatment.

81OFFENDER:  Yes, but we've already seen the assessment and we've already seen her decision, which contradicts the psychiatric report I got in 2013 so it - - -

82HER HONOUR:  You did not give me that psychiatric report, ma'am.

83OFFENDER:  I don't have that psychiatric report.  There was one given to my GP, but I can't get hold of it because it's too many years ago.  It was for a different reason, but he disagreed, so that's - - -

84HER HONOUR:  All right.  I wonder if you would like to speak to Mr Hands about whether she consents to this order being made or not.

85MR HANDS:  Yes, please.

86OFFENDER:  I'm just getting clarity on whether it's says basically I can be forced.

87HER HONOUR:  Right.  It is a long order, ma'am, I have no difficulty with you getting clarity on the order.  It is important that you understand it.  The way we did this the other day, which was quite effective, is that we vacated the courtroom so that Mr Hands could speak privately to his client, and that is what we will do now for a short while.

88MR HANDS:  Thank you.

89HER HONOUR:  Mr Hands, we will give you a copy of the printout that I have read.

90MR HANDS:  Thank you.

91(Short adjournment.)

92HER HONOUR:  How are we going, Mr Hands?

93MR HANDS:  Thank you for that time, Your Honour.  My client seeks clarification so she can comply with the order.  Part of the problem was she didn't have access to the Cidoni report, she didn't want it.  I have spoken to her now and my instructor is going to provide her with a copy.  She was concerned it was giving the green light to have her certified and so I explained that it was not the purpose of it and her concerns, while very real, were not what the purpose of the report was.

94HER HONOUR:  I understand.  I note your instructions that the order is consented to.

95MR HANDS:  She consents to the order, yes.

96HER HONOUR:  Thank you very much for that.  I will sign the order and, as I indicated, it will be forwarded to the appropriate Community Corrections Services location as directed and you can personally sign it there, ma'am, that is the order, and the disposal order as I said, will be made for a number of items but, Mr Hands, your instructing solicitor will presumably contact the prosecutor to obtain the return of the property.

97MR HANDS:  Yes.

98HER HONOUR:  Very good.

99MR HANDS:  It's probably more appropriate to approach the informant, I think, who is nearby and she can recover it from him.

100OFFENDER:  Excuse me.  I already have the computer and I have the printer.  They have been returned to me, although not with leads.  The notebooks - - -

101MR HANDS:  There you go.  It was a little presumptuous, but anyway.

102HER HONOUR:  Sorry?

103OFFENDER:  The notebooks were never returned.  I don't even know what notebooks they took, but they weren't returned.  The informant has actually changed positions and changed police stations and is no longer in the position he was in as the informant.

104MR HANDS:  But you've got the computer and the printer back so we don't have to pursue that.

105OFFENDER:  Yes.

106HER HONOUR:  That is done.  Excellent.  Anything else from you?

107MS STRUTHERS:  Nothing further, Your Honour.

108HER HONOUR:  Thank you very much.

109MR HANDS:  Thank you, Your Honour.

110HER HONOUR:  Thank you, Ms Henry, thank you, Mr Hands.  We will adjourn now.

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