Director of Public Prosecutions v Jakins

[2023] VCC 1312

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 23-00259

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW JAKINS

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	24 July 2023
DATE OF SENTENCE:	28 July 2023
CASE MAY BE CITED AS:	DPP v Jakins
MEDIUM NEUTRAL CITATION:	[2023] VCC 1312

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Charges of blackmail and four summary offences – offender blackmailed and assaulted the victim over lack of payment for services to a third party – displaying a weapon during assault – offended whilst on bail – borderline intellectual capacity – diagnosis of major depressive disorder, a post-traumatic stress disorder and a stimulant use disorder – early plea of guilty – reasonable prospects of rehabilitation – hardship in custody

Legislation Cited:           Sentencing Act 1991

Cases Cited:Zakhour v The Queen [2022] VSCA 63; Kamal v The Queen [2021] VSCA 27; DPP v Hoblos [2020] VCC 720; DPP v Williams [2020] VCC 667; DPP v Cummins [2020] VCC 102; DPP v Adrian [2020] VCC 661

Sentence:12 months’ imprisonment and 15-month community correction order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Profitt	Office of Public Prosecutions
For the Accused	Mr O. Smith	Leanne Warren & Associates

HIS HONOUR

Introduction

1On 17 July 2023, Mr Jakins, your case came before me for a sentence indication hearing. Unfortunately, an indictment had not been filed and I could not give an indication. However, since everything else had been done, I heard from the parties and with their consent, gave an informal indication.

2The proceeding returned on 24 July 2023. An indictment had been filed. You pleaded guilty to the charge of blackmail and the four summary offences and the matter proceeded normally. It was adjourned so you could be assessed in relation to a community correction order. 

Circumstances

3Your co-accused, Sarah Anderson, was in contact with the victim through a website called 'sugardaddy.com.au'. The victim and Ms Anderson agreed to meet, with the victim agreeing to pay her $600 for company and 'intimacy' (which was understood by both parties to mean sexual intercourse). During the course of the evening, the victim and Ms Anderson commenced having sexual intercourse, but it ceased after a short time. Ms Anderson was paid $300 for her services.

4Later that morning, Ms Anderson requested the balance of $300 and involved you when the victim refused to pay. You picked her up and drove to the victim's address. The victim let her into the building complex, unaware you were present. She propped the door open to allow you to enter and while entering she unknowingly dropped a knife.

5The victim and Ms Anderson went inside the apartment, and you followed in a short time later, producing a knife and what appeared to be a disassembled automatic firearm in a bag. You said, 'You had a transaction. You should pay the lady'.

6As the victim was attempting to retrieve his computer from Ms Anderson, you shoved him against a wall and punched him in the face. The plaster on the wall cracked.

7Both you and Ms Anderson fled the building with the victim's computer, phone and gym bag. These items were recovered by the police and returned to the victim.

8You were arrested and interviewed. You denied any involvement in the offending and sought to set up an alibi. At the time of the offending you were on bail.

Victim impact statement

9There is no impact statement because the victim did not wish to make one.

Criminal history

10Excluding an appeal, between 15 July 2002 and 10 February 2022 you have appeared in a criminal court on six occasions and have been found guilty or convicted of 196 charges. You have been sentenced to imprisonment twice with the longest sentence being 3 years' imprisonment with a non-parole period of 18 months.

11Your counsel noted two lengthy periods where you apparently did not offend: from 2002 to 2012; and from 2013 to 2018. I agree your history does not show persistent lawlessness or someone who is incapable of rehabilitation.

Personal

12You are 41. You were born in Bairnsdale and raised in the Yarra Valley. You have two older brothers and your family has no history of criminal offending or drug abuse. You have a strong relationship with your family despite reports of physical violence and strict discipline by your father in your youth.

13At 16, you left home and were effectively homeless until 18. You met your former wife and married in 2005. You and she were together for 17 years and your drug use had a significant impact on your relationship. You have two children, who are in secondary school. You maintain a good relationship with your family.

14You experienced learning difficulties in primary and secondary schools. You left school in Year 7 and started an apprenticeship in painting. You then worked as an apprentice butcher at Safeway from the age of 21 to 24. You completed that apprenticeship, but then returned to painting. During 2015, you worked as a painting sales representative. Overall, you have worked as a painter and decorator for the past 20 years, but your drug use has interfered with your work. 

15You drank alcohol heavily between the ages of 16 and 30. You started using cannabis at 13 and amphetamine at 15 to 17, being speed and ecstasy in a social context on weekends. You stopped all drug usage when you had your children but restarted using methylamphetamine, ecstasy and GHB frequently at 28 when your marriage broke down. You developed a daily usage of methylamphetamine. In custody, you receive monthly buprenorphine. 

16In either 2017, 2018 or 2019, it seems you are uncertain of the date, a benign tumour was removed surgically from your spinal cord. Unfortunately, you still experience chronic back pain, treated in custody by the pain‑relieving medicine, Endep. Nevertheless, this chronic pain takes a toll on your mental health. You are prescribed the anti-depressant, Amitriptyline. You told the community corrections officer, this condition is aggravated, that is of your back, by heavy lifting and some physical activities.

17In January 2021, you tried to commit suicide through carbon monoxide poisoning. You are not currently thinking or planning suicide. 

18Your partner from an earlier relationship died about four or five months ago while you were in custody.

19In prison, you are working in maintenance, no doubts as a result of your skills as a painter.

20On release from custody, you intend to resume as a painter and you told the Corrections officer at the – and hope to obtain employment at the West Gate Tunnelling project and live with a close friend in Caulfield.

Psychologists

Cidoni

21Gina Cidoni is a psychologist. At the request of your solicitors, she interviewed you on 8 November 2021.

22She considers you have a borderline intellectual capacity. However, she could not administer a full test due to pandemic restrictions within prison.

23She diagnosed you as suffering from a major depressive disorder, a post-traumatic stress disorder and a stimulant use disorder. The stress disorder largely stems from your early childhood. 

Ball

24David Ball is a forensic psychologist. On 22 March 2018, he interviewed you at the request of your solicitors. He considered you presented with significant schizoid personality features. He diagnosed a stimulant use disorder and persistent depressive disorder with anxious distress. He considered these conditions to be severe.

Discussion 

25The maximum penalties for the offences are:

(a)   blackmail - 15 years' imprisonment;

(b)   trespass – a fine of 25 penalty units or imprisonment for six months;

(c)   unlawful assault – a fine of 15 penalty units or imprisonment for three months;

(d)   possession of a controlled weapon – a fine of up to 120 penalty units or imprisonment for 1 year; and

(e)   committing an indictable offence on bail – a fine of 30 penalty units or 3 months' imprisonment.

Nature and gravity of the offending

26You possessed two weapons, which is an aggravating factor for they imply the ability to carry out a threat even though the weapons were displayed rather than brandished, as your counsel put it.

27Your counsel identified a number of other factors. To speak of sophistication misses the point. What you did was a thuggish form of debt collecting. Of course, it did not possess the attributes of more sophisticated forms of blackmail. It was not even successful with Ms Anderson not recovering her $300 with you and she indulging in self-help by stealing the victim's property. In the absence of a statement, I have no idea of the effect of your actions on him.

Guilty pleas

28Your guilty pleas are made relatively early in this proceeding. I say that because following a committal hearing, and the evidence of the victim, there were discussions between the parties. They resulted in you offering to plead guilty to the then uncharged offence of blackmail. It is surprising a sentence indication hearing was requested in those circumstances, but it was.

29By pleading guilty you have taken responsibility for your offending. Your guilty pleas have the practical effect of assisting the criminal justice system by creating space for those proceedings which genuinely require a trial. This avoided the need for witnesses to give evidence in this court, including the victim. Even though the problems caused by the virus to the criminal justice system have waned, they have not disappeared. Even now, a guilty plea deserves a greater discount on sentence than would be the case in normal times.

30The extent of the discount is not as great as those made during the height of the restrictions due to the virus. These restrictions have severely limited the work of the court in criminal cases. Most of those restrictions have passed but some remain.

Prospects of rehabilitation

31As to your prospects of rehabilitation, you have an established occupation to return to and accommodation with your close friend. You are supported by your parents. You enjoy a good relationship with your former wife which enables ongoing contact with your teenage children.

32To these and other offences, you have been on remand in prison for 393 days.[1]  You will remain in prison following my sentences today. Even now, imprisonment is more difficult because of remaining effects of the virus. These matters should deter you and, possibly, put you on the path of rehabilitation.

[1]           Mr Jakins was sentenced on a consolidation of matters in Magistrates Court on 31 January

33You have completed two successful urine analyses and are interested in undertaking a drug and alcohol programme while in custody. You have completed a Positive Lifestyle Program. It is conducted by the Salvation Army. Its chaplain at Fulham Correctional Centre speaks well of your involvement in the programme.

34I consider your prospects of rehabilitation are reasonable.

Hardship in custody

35Although there are 123 days of your pre-sentence detention referable to these charges, you have been in custody since 30 June 2022. Within the prison system, there are still restrictions and limitations due to the ongoing effects of the virus. They are not as severe as they were during the height of the pandemic but nevertheless, this is a mitigating factor.

Current sentencing practices

36Helpfully, I was provided with summaries of certain comparable cases.[2]

[2]Zakhour v The Queen [2022] VSCA 63; Kamal v The Queen [2021] VSCA 27; DPP v Hoblos [2020] VCC 720; DPP v Williams [2020] VCC 667; DPP v Cummins [2020] VCC 102; DPP v Adrian [2020] VCC 661.

Assessments

37You have been assessed by a community corrections officer and the Mental Health Advice and Response Service in relation to a community correction order.

Sentence

38On Charge 1, a charge of blackmail, I sentence you to 12 months' imprisonment. Excluding today, I declare the 123 days of your pre-sentence detention as time served under this sentence.

39On the four summary charges, I propose to convict you on each and, subject to your consent, I will make a community correction order of 15 months' duration with these conditions:

(a)   to perform 200 hours of unpaid community work;

(b)   to undertake assessment and treatment for your drug abuse or dependency;

(c)   to undertake any mental health assessment and treatment; and

(d)   to be supervised, monitored and managed as directed.

40I do not propose to make a declaration under s48CA of the Sentencing Act 1991.

Section 6AAA

41If you had not pleaded guilty to these charges but had been found guilty after a trial, I would have sentenced you to a total effective sentence of 24 months' imprisonment.

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             2023 and received 270 days' imprisonment. This should be deducted.