Director of Public Prosecutions v Ismailoski

[2017] VCC 1050

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-00464

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEIVM ISMAILOSKI

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 August 2017
CASE MAY BE CITED AS:	DPP v Ismailoski
MEDIUM NEUTRAL CITATION:	[2017] VCC 1050

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Ballek
For the Accused	Ms Coghlan

HIS HONOUR: 

1Seivm Ismailoski, you have pleaded guilty to one charge of blackmail. 

2You have admitted your criminal record, which for the purposes of sentencing, is not a significant one, however I do note in 2002, you had a CBO, without conviction, for theft and cultivate narcotic plant, cannabis.  However, as it is quite some time ago, it does not play a significant role in my assessment of the sentence. 

3Two victim impact statements were tendered from Stephen and Corrina Wilson.  They movingly account the effect that your, in what can only be described as "treacherous" behaviour, has had upon them, concerning the breach of trust of your friendship with them by the offending here. 

4The facts of the matter are set out in the summary of the prosecution opening upon plea, Exhibit 1.  I will not now refer in any detail to those facts, except to say that Mr Wilson was a practising accountant, with whom you had had a close friendship with for over 20 years.  You were a client of his. 

5Prior to the offending, you became aware that Mr Wilson was conducting an affair with a woman named Ling Jin.  You then devised a plan to blackmail
Mr Wilson by telling him that Ms Jin was brought to Australia to work as
a prostitute by the Asian crime syndicate, the Triads. 

6You further told him that members of the Triads were aware that Mr Wilson had been having this affair with Ms Jin and they were unhappy about it and were demanding $5.1m, or they would kill Mr Wilson's wife.  Of course, all these claims were false.

7You offered to Mr Wilson to engage with some criminal associates who would negotiate with the Triads to assist in resolving the threat against Mr Wilson's wife.  There would be a fee of $250,000 for that.  An amount of $25,000 cash was paid out and later a transfer of $100,000 was made by Mr Wilson into your bank account. 

8When the plot was uncovered, that money, $100,000, was transferred back into Mr Wilson's account.  The $25,000 cash has not been located.  I have made an order for compensation in respect of that. 

9The prosecutor submitted that this was serious offending.  This was a breach of trust that had a level of sophistication.  There was a threat of violence, that is, the threat to kill Mr Wilson's wife.  And in answer to the defence submission that it occurred over a short period, he said that was so, because the demands were complied with, up until the time Mr Wilson had second thoughts.  He submitted that because of those factors, an immediate custodial sentence should be imposed. 

10In mitigation, your counsel, Ms Coghlan, relied on your early plea of guilty and I accept that.  An early plea of guilty entitles you to a discount, because it has saved the community the cost of a jury trial and is an acceptance of responsibility by you for your offending.            

(2)  She pointed to your limited criminal history and told me that you had   no criminal matters outstanding.             

(3)  She pointed to the delay in the matter, two years from the offending                and you had used that time profitably and you had not re-offended.                     A number of references were tendered, including some from your   two current employers.  And I have taken those into account.

(4)  She put that the time in custody would be more burdensome   because of your limited intellectual capacity and as she has pointed                 out this morning, there is an issue as to whether, in the past, you                have had schizophrenia.  You relied on a report of Bernard Healey,                    clinical psychologist.  He set out your background, family   background, work background, your use of drugs, which you told him                  you had abstained from for the last two years.  He set out in some                  detail the relationships you have had with various women, which   have resulted in six children. 

He conducted intellectual testing upon you and that revealed a full                  scale IQ of 65, that is, 90 per cent of people your age would perform                better on the test that he conducted.  He said it was safe to infer you                 suffer from severe depression and anxiety.  He inferred that your low                    level of intellect would be congenital in origin.  A diagnostic reading               test showed that you had the reading level of an average eight year                    old commencing Grade 3.  He said you were a man of very limited              intellectual capacity, virtually illiterate. I have taken all those factors                 into account.

(5)  Your counsel pointed out that you had shown genuine remorse.

(6)  She outlined the circumstances in which you concocted this plan,                   that is, you were in debt for drugs and gambling.  She acknowledged   that this was a breach of trust, but pointed out there were no   weapons involved.  It was not a sophisticated plan, she said.  Indeed   she described it as a "bizarre" plan. 

(7)  She pointed to the considerable family support you had, demonstrated          by the number of family members who appeared in court. 

11In sentencing you, I am required to balance the interests of the community in denouncing criminal conduct, with the interests of the community, seeking to ensure, as far as possible, offenders are rehabilitated in society.  I have already expressed by denunciation of your behaviour. 

12The basic purposes for which a court may impose a sentence are, punishment; general deterrence, that is, to deter others from committing like-offences and that is a significant sentencing consideration here; specific deterrence, that is, to deter you from re-offending, I am satisfied that that plays a lesser role here, denunciation; and protection of the community.

13In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim. 

14There are significant mitigating factors that have been pointed out by your counsel and they include,

·    Your early plea of guilty;

·    Your remorse;

·    What I assess to be your good prospects of rehabilitation;

·    Your limited criminal history; and

·    Your behaviour of not offending since being charged with these matters. 

15I have carefully considered all the submissions made and in particular, all the cases referred to.  Weighing up all those matters and whilst acknowledging that blackmail is indeed a serious offence and this offending was a breach of trust and friendship, with significant consequence for the Wilsons.  However, in my view, there are compelling reasons why I should accede to your client's submission that I impose a community corrections order and I will do so.

16I convict you and order you to serve a community corrections order for a period of three years. 

17You are to attend at the Broadmeadows Community Corrections Service by
8 August 2017 at 4 o'clock. 

18In addition to the mandatory terms, you must perform 250 hours of unpaid community work over the first two years, as directed by the Regional Manager;

·    You are to be under the supervision of a Community Corrections officer for a three year period;

·    You must undergo assessment and treatment, including testing for drug abuse or dependency, as directed;

·    You must undergo any mental health assessment and treatment.  That may include psychological, neuropsychological, psychiatric or treatment in a hospital or a residential facility, as directed;

·    You must participate in programs and courses that address factors relating to your offending behaviour, as directed by the Regional Manager. 

19I am always in some doubt as to whether I need to do a 6AAA, but I will do one.  Someone told me the legislation has changed. 

20It is clear that if you had proceeded to trial and you were convicted by the jury, you would have at least received a sentence in the order of four years, with
a non-parole period of two. 

21There is a 464ZF order, which will have to be at a police station.  Have you got that there, Mr Ballek?

22MR BALLEK:  If my instructor could forward that to Your Honour's associate.

23HIS HONOUR:  Yes. 

24MR BALLEK:  After the sentence.

25HIS HONOUR:  Yes. 

26I am going to make an order, Mr Ismailoski, that you attend at Broadmeadows Police Station?

27MS COGHLAN:  Yes, Your Honour.

28HIS HONOUR:  For the provision of a forensic test.  A DNA sample will be taken from you.  That is not drawn up at the moment.  I will sign that in chambers.  Are you happy with that, Ms Coghlan? 

29MS COGHLAN:  Yes, Your Honour.

30HIS HONOUR:  I inform you, that if you decide to change your mind and not consent to that, police may use reasonable force to enable that procedure to be undertaken.  I make the order, considering the seriousness of the offending and the fact that through your counsel, you do not oppose it. 

31I have made a compensation order.  If you could take the Corrections order up to your client and see if he wants to sign it.

32MS COGHLAN:  Yes, Your Honour.

33HIS HONOUR:  Thank you.

34I should add, that in the Community Corrections assessment report, you were assessed as being suitable.  You were assessed as being medium risk of
re-offending.  You presented as emotional and appeared extremely remorseful for the impact the offence had on the victim and you presented as having insight into your offending behaviour and you were able to articulate the cause of the offence, took full responsibility for your actions and requested as much assistance as possible in relation to rehabilitation.

35Mr Ismailoski, you have signed this order saying you understand the effect and conditions of the order and consent to that being made.  Is that correct?

36OFFENDER:  Yeah. 

37HIS HONOUR:  If you breach the order in any way, not only by re-offending, but by not conforming to any of the conditions in the order, you come back before me, until May of next year and thereafter before some other judge, to be dealt with.  Do you understand that?

38OFFENDER:  Yeah.

39HIS HONOUR:  Thank you.  Are there any other matters I need to attend to? 

40MR BALLEK:  No, Your Honour.

41MS COGHLAN:  No, Your Honour.

42HIS HONOUR:  All right, thank you.  Adjourn the court until 12 o'clock. 

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