Director of Public Prosecutions v Le-Gallienne

[2015] VCC 954

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-15-00472

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRENT NATHAN LE-GALLIENNE

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF PLEA:	3 and 20 July 2015
DATE OF SENTENCE:	23 July 2015
CASE MAY BE CITED AS:	Director of Public Prosecutions v Le-Gallienne
MEDIUM NEUTRAL CITATION:	[2015] VCC 954

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW       
Catchwords:            Sentence – blackmail          
Legislation Cited:     Crimes Act 1958, s87; Sentencing Act 1991

Cases Cited:Luciano v R [2015] VSCA 173; R v Mills [1998] 4 VR 235; Azzopardi v R (2011) 35 VR 43; Boulton v R [2014] VSCA 342; Joseph v R [2014] VSCA 343

Sentence: Convicted and sentenced to 12 months’ imprisonment with a non-parole period of 6 months. 40 days pre-sentence detention. Section 6AAA declaration: 18 months’ imprisonment with a non-parole period of 10 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr G Hayward	Solicitor for the Office of Public Prosecutions
For the Accused	Ms T Mildenhall	Victorian Legal Aid

HIS HONOUR:

1       Trent Nathan Le-Gallienne, you have pleaded guilty to an offence that you, at Hoppers Crossing in Victoria on 25 November 2014, with a view to gain for yourself, made an unwarranted demand from Michelle Gaye Hussey with menaces. 

2 Such crime is contrary to s.87 of the Crimes Act 1958 and carries a maximum penalty of 15 years’ imprisonment.

3       The prosecution has prepared a written summary of the circumstances surrounding the offending.  Such summary has been marked as an exhibit (Exhibit 1”) and has been accepted by you and your counsel as an appropriate representation of the offending.  The important matters of such summary are:

(a)   You were born on 24 March 1990 and were 24 years of age at the time of the offending;

(b)   At the time of the offending, you were with your co-accused, Peri Ainsley Giovanna Watts (“Watts”), who was born on 13 September 1996 and was 18 years of age at the time of the offending;

(c)   The victim of your crime, Michele Gaye Hussey (“Hussey”), is the mother of Watts, who, at all relevant times, lived in Elizabeth, South Australia;

(d)   On the day before the offending, Watts telephoned her mother from Victoria and told her that she had no money, after which her mother deposited $30 into her bank account.  Her mother had provided small amounts of money in this manner every few weeks;

(e)   At 9.58 am (South Australian time) on 25 November 2014, Hussey received a telephone call from Watts.  At that time, Watts sounded “hysterical” and said to her mother, “I have a drug debt.  They need $5,000.  They want it by 11.30 or they are going to torture me.”

(f)    At that time, Watts told her mother that she did not know where she was, and was advised by her mother to contact her grandfather, who would collect her;

(g)   Hussey immediately contacted Victoria Police, who commenced an operation into your whereabouts, involving approximately 20 investigators and other specialist resources;

(h)   At approximately 10 am, Hussey attempted to call your mobile telephone, but her calls went unanswered.  Hussey again telephoned your mobile telephone at 10.24 am and spoke with Watts for approximately one minute, during which time she was described as “hysterical”.  Watts told her mother that she did not know where she was and that it was serious.  Hussey told Watts that she had contacted the police and, in turn, Watts told her mother, “They’ve taken [Le-Gallienne].  They are probably bashing the shit out of him.”  All this information was conveyed to the police by Hussey, who attempted once again to call your mobile telephone at 10.37 am, but such call was not answered;

(i)    At 10.43 am, Hussey received a text message from a Telstra payphone which read, “FIVE THOUSAND BY 12 OR”.

(j)    Hussey again telephoned your mobile telephone at 10.54 am and 12.20 pm, but her calls went unanswered.  Hussey was extremely worried about Watts and provided a statement to police at about 2.30 pm;

(k)   At 6.16 pm, Hussey received a telephone call from Watts, at which time she told her that she was okay and not to worry and that she was in a room.  In particular, Watts told her mother that she needed the money for a drug debt and for her to deposit $500 into her account by 7.30 pm;

(l)    At about 7.13 pm, Watts again telephoned Hussey and asked whether or not she had deposited the money into Watts’ account.  Hussey told Watts that she was organising the money and, at that time, Watts sounded “desperate” and told Hussey that there was only ten minutes remaining to make the deposit;

(m)     At 7.36 pm, Hussey called your mobile telephone and asked Watts to attend the police station before she made the deposit.  Watts refused to do so;

(n)   Hussey paid $500 into Watts’ bank account, after which she called your mobile telephone and spoke with Watts.  Watts asked Hussey to send a screenshot of the deposit confirmation;

(o)   Police observed your vehicle near your home at approximately 3 pm (Victorian time) and attended your home address, where they spoke with your mother at approximately 6 pm.  Your mother stated that she had observed you and Watts at the address briefly at approximately 1 pm, when you both appeared to be drug affected;

(p)   At approximately 6.30 pm, investigators obtained telecommunications data regarding the telephone from which Hussey had received Watts’ calls.  Such data showed that the mobile telephone had been connected to various cell towers and, accordingly, Victoria Police formed the view that Watts was not being held captive in a room, but that she was at liberty with you.  Police concluded the investigation of your whereabouts at that time;

(q)   Victoria Police called your mobile telephone at 7.13 pm and spoke with you.  Police asked to speak with Watts, and although you acknowledged that you were with her, you refused to allow police to speak with her.  You said that you would not negotiate, that you did not trust police, and that you would commit suicide if the police attempted to apprehend you.  You then terminated the call;

(r)    Investigators executed a search warrant at your home address on Wednesday, 26 November 2014, where you and Watts were arrested.  After each of you were interviewed by police, you were each remanded into custody;

(s)   Watts was remanded in custody until 1 December 2014, when she was granted bail by a magistrate.  You remained in custody until 5 January 2015, when you were granted bail by a magistrate.  Your period of detention was 40 days.

(t)    You and Watts each pleaded guilty to the offence on 18 March 2015, which the prosecution concedes was the earliest possible date to make such a plea.

Your record of interview

4       During the course of your record of interview conducted on 27 November 2014, you asserted, amongst other things:

·        Watts was upset with her mother and called her to say that she needed money or else she would be hurt;

·        Watts wanted to test whether her mother loved her;

·        You and Watts were travelling around the western suburbs of Melbourne together when Watts called Hussey from your phone;

·        That you had no say in the offending and did not help plan it.  You were driving and trying not to laugh when Watts made the telephone calls to her mother;

·        That you did not assist with the telephone calls or text message;

·        There was no drug debt and it was “all made up”;

·        That you wanted money for your car’s wheel alignment, petrol, food and for “Ice”;

·        After Hussey had deposited money into Watts’ account, you withdrew $490 from an ATM using Watts’ card, after which you drove around, had a meal, played the pokies and spent about $250 on five “points” of Ice;

·        Both you and Watts decided to send a text message to Hussey from a payphone so that it was anonymous, and that it was you who sent the message.

5       In her record of interview, Watts stated that it was “Her idea to create the story” and that you and her did not plan the kidnapping scenario – “it just happened”.

The Victim Impact Statement of Hussey

6       Before tendering and reading a Victim Impact Statement declared by Hussey on 27 June 2015, counsel for the prosecution quite properly raised that certain parts of such statement may be “of concern”.  Such an approach is consistent with the recent Court of Appeal decision of Luciano v R [2015] VSCA 173 at paragraphs [7]-[17].

7       In particular, counsel referred to Page 3 of the statement, which is headed “Emotional Impact of the Crime”.  In that part of the document, the victim stated, amongst other things:

·    “afraid of repercussions once Le-Gallienne was arrested”;

·    “would not let my primary school age children walk to and from school alone”;

·    “scared Le-Gallienne would come after myself and my parents”.

8       Counsel also referred to Page 9 of the statement, which is headed “Social Impact of the Crime”.  Hussey stated, amongst other things her:

·    “biggest concern was Le-Gallienne wanted revenge on myself, my parents and Peri”.

9       Counsel for the prosecution submitted that such assertions were admissible, as they contained “particulars of the impact of the offence on the victim”.  Furthermore, he submitted that, of course, there is no evidence whatsoever that you have made any approach to the victim or, indeed, your co-accused, in relation to this offence.

10      Your counsel submitted that it was “clear” that the comments made by Hussey are “partly the flow-on effect of the offending” on her.  Essentially, your counsel did not object to the tender of the Victim Impact Statement, but submitted, rightly in my view, that these comments should be construed as to the effect on Hussey immediately after the commission of the crime, where there had been no basis for any ongoing concern.

11      Accordingly, the Victim Impact Statement was tendered (Exhibit 2).  Beyond what has already been referred to, Hussey also asserted that following the offending, she took leave without pay for a six-week period, losing about $6,300 (pre-tax), together with time off for attending Court and incurring travel expenses to Victoria as a result of the offence.

12      Furthermore, because of her general concern, she found that she could not take her youngest daughter to training commitments for a period of time after the offending.

Your criminal record

13      Your criminal record is extensive, commencing in the Children’s Court in 2007 and then more prominently from February 2010 to date.  Many of these offences are related to the driving of a motor vehicle, but you have also been convicted of going equipped to steal; two charges of theft; two charges of fraudulently altering engine identification numbers (14 July 2011); two charges of obtaining a financial advantage by deception; robbery; obtaining property by deception; shop theft, and fraudulently altering engine identification numbers (19 July 2012); and theft, and obtaining property by deception (14 September 2012).

14      In particular, you have breached various Community-Based Orders and Community-Correction Orders.  I refer to the following:

(a)   On 12 January 2011, you were convicted of driving whilst authorisation was suspended, and sentenced to a Community-Based Order for six months, with various conditions;

(b)   On 14 July 2011, it was proven that you had failed to comply with the Community-Based Order made on 12 January 2011 and the original Order was varied and you were sentenced to a variation of the Order for a further six months, again with various conditions;

(c)   Also on 14 July 2011, you were convicted of a number of offences (mostly involving driving offences) and sentenced to a further Community-Based Order for twelve months, with various conditions;

(d) On 19 July 2012, you were convicted of failing to comply with the Community-Based Order made on 14 July 2011 and the original Order was confirmed and to extend for a further six months, with various conditions. On that date, you were also convicted of various other offences and placed on a Community-Based Order for twelve months, with various conditions. Furthermore, you were also convicted on that day of failing to answer bail, obtaining a financial advantage by deception and attempting to obtain property by deception, theft and several other driving offences and were sentenced to a period of three months’ imprisonment, which was wholly suspended under the then s.27 of the Sentencing Act 1991 with an operational period of 18 months;

(e) On 14 September 2012, you were convicted of criminal damage, theft, failure to answer bail, obtaining property by deception, driving whilst disqualified, driving when authorisation suspended, obtaining property by deception, using threatening words in a public place, using an unregistered motor vehicle on a highway which was not roadworthy, and stating a false name and address and sentenced to an aggregate six months’ imprisonment, which was wholly suspended to the then s.27 of the Sentencing Act 1991 with an operational period for 18 months;

(f)    On 22 October 2012, you were convicted of various driving offences and sentenced to a Community-Correction Order for nine months, which contained various conditions;

(g)   On 10 December 2013, it was found proven that you had contravened the Community-Correction Order made on 22 October 2012 and at that time, the original Order was varied and you were sentenced to a Community-Correction Order for a period of nine months.  I was informed  by your counsel that on that day, the Court was aware that your offences had caused breaches of the suspended sentences made respectively on 19 July 2012 and 14 September 2012 but found “exceptional circumstances” on the basis that you had engaged with the Youth Community and Law Program.  However, on that date, you were also convicted of driving whilst authorisation suspended and sentenced to a twelve-month Community-Correction Order with various conditions;

15      I was also informed by your counsel that a number of matters were presently before the Sunshine Magistrates’ Court and had been adjourned to 7 July 2015 to await the outcome of this plea.  Subsequently, I was informed that you intend to plead guilty at the Sunshine Magistrates’ Court on 30 July 2015 in respect to the following offences, all of which occurred prior to the subject offending:

(a)   On 8 November 2013, you used an unregistered vehicle and displayed plates other than those for the registered vehicle;

(b)   On 8 January 2014, you fraudulently used plates and used an unregistered vehicle;

(c)   On 4 April 2014, driving at a dangerous speed, exceeding the speed limit, and failing to have headlights on at night;

(d)   On 14 June 2014, driving whilst suspended and using an unregistered vehicle;

16      You have also been charged that on 9 November 2014, you committed criminal damage (two charges), trespass, failing to stop after an accident where there is property damage, failing to provide name and address following an accident and having the proceeds of crime.  Watts was a co-offender and has already been dealt with.  I am informed by your counsel that the charges in relation to you are listed for a summary case conference on 30 July 2015.

17      I was also informed by your counsel that since the subject offending, you have been charged with the following offences:

(a)   That on 13 January 2015 (that is eight days after being bailed), you drove whilst suspended and used an unregistered vehicle.  Apparently you will plead guilty to such offences on 30 July 2015;

(b)   That on 10 June 2015, you allegedly handled stolen goods, possessed a prohibited weapon, possessed a controlled weapon and committed an indictable offence whilst on bail.  I have been informed by your counsel that this matter is still being disputed and is listed for a summary case conference on 30 July 2015;

(c)   That on 20 June 2015, you allegedly committed a theft from a motor vehicle, obtained property by deception, committed theft, committed an indictable offence whilst on bail and contravened conduct conditions of bail.  I am informed by your counsel that some of these offences are being contested and are listed for a summary case conference on 30 July 2015;

18      I was also informed by your counsel that you were remanded in custody from 20 June 2015 to 1 July 2015, when you were granted bail on strict conditions.  Your counsel also indicated that some of the offending to which you are pleading guilty on 30 July 2015, will give rise to further potential breaches of Community-Correction Orders.

Material tendered by your counsel

19      Your counsel, in support of your plea in mitigation, tendered the following documents:

·        Exhibit A – Defence submissions on plea;

·        Exhibit B- Report of the psychologist, Mr Warren Simmons, dated 20 May 2015 following an interview with you on 15 May 2015;

·        Exhibit C – Medical report from Dr D Shirzada from the Westgate Medical Centre dated 11 May 2015;

·        Exhibit D – Youth Community and Law Program final Court report from the Youth Junction Inc. dated 9 December 2013.

20      Based on some of the materials tendered and the submissions made by your counsel, I set out the following details in respect to your personal circumstances, your educational and vocational background.

21      Your mother informed the psychologist, Mr Warren Simmons, that your father suffered from schizophrenia and when about five months’ pregnant, with you, your father hit her in the stomach and put her head through a windscreen.  By the time of your birth, your parents had separated and you were raised by your mother.  You did not make contact with your biological father until you were sixteen but have had little contact with him over the years since then.

22      As a result of a previous relationship had by your mother, you have a stepsister named Rebecca, who is approximately ten years older than you.  Rebecca lived with you and your mother when you were young, and you informed Mr Simmons that you did not have a close relationship with her and do not speak to her now.

23      You lived in Commission housing and described your childhood as “very good”, although money was an ongoing issue.  You recall you spent most of your time playing video games, and although attempted to play sports at school, did not really become involved in these.

24      In particular, you described that you have had a close relationship with your mother and although a “strict woman”, not excessively so. 

25      At primary school, you described that you “did well”, was good at maths but struggled at English and had problems with both reading and writing, which continues until the present time. 

26      You described having a generally positive relationship with your peers, although you were picked on to some degree in Year 6 – your mother believes this was because you did not have a father.

27      At about the age of six, you were diagnosed with Attention Deficit Hyperactivity Disorder and was prescribed dexamphetamine, which continued to about the age of 14.

28      You attended secondary school to probably Year 11 and over that period of time, you had some learning difficulties, but these were unfortunately not recognised until much later on.  During this period of time, you did not do particularly well, were not a popular student, did not make friends easily and tended to spend time on your own.  Furthermore, relationships with teachers were not positive and often they were angry because you would miss school and have to catch up.  You were also bullied more at secondary school.

29      Ultimately, you were expelled from secondary school for truancy halfway through Year 11, and you explained to Mr Simmons that at this time, you were spending time at home “crying in [your] room because [you] didn’t fit in and had no friends”.

30      On leaving school, you completed a signwriting course, which was only of several months’ duration, after which you performed a variety of jobs involving working in a large supermarket chain for about two weeks, six months working as a truck driver, working in a furniture warehouse, together with various retail stores.

31      You last worked in about 2013, which only lasted for several months.  You informed Mr Simmons that you spend most of your time at home and do not have many friends, describing yourself as shy and lacking self-confidence.  You were born with a tremor and also suffer asthma. 

32      In 2012, you were diagnosed with sleep apnoea, and after appropriate investigation, you were prescribed a Continuous Positive Airways Pressure (CPAP) machine to help you sleep – however, you informed Mr Simmons that the machine was malfunctioning and had to be repaired.

33      In 2013, you were referred to ‘Head Space’ and diagnosed with Depression and was treated with anti-depressant medication, which you feel did not really assist you.

34      At about the age of sixteen, you met Rhiannon Owens and entered into a relationship which lasted about five years.  After about six months, you moved in together and you described it as a good relationship until such time that you found her being unfaithful with your best friend.  As a result of that relationship, there are two children, Gisele, now aged six, and Nathan, now aged five.  You informed Mr Simmons that you only have intermittent contact with your two children.

35      At the beginning of 2014, you met Watts and had a relationship with her for about one year, during which time the subject offending occurred.

36      You informed Mr Simmons that you commenced to use cannabis at the age of 20 and used such drug intermittently until about 2014, when you ceased smoking cannabis.

37      Following you discovering that Rhiannon had been unfaithful, you commenced to use methamphetamines (Ice) and over the ensuing months, the use of such drug began to increase and, at one point, you were smoking the drug nearly every day for six months, after which it was then several times a week.

38      You informed Mr Simmons that since being on bail on 5 January 2015, you have smoked Ice on three occasions, the last time only a couple of weeks prior to your consultation.  Your counsel did state that you do continue to use “Ice” on occasion.

39      You commenced drinking alcohol at about the age of 18, which predominantly consisted of having a six-pack on the weekend, which lasted for about one or two months, after which you ceased and now have no particular interest in alcohol. You have also had GHB on about five occasions but have no particular interest in that drug.

40      You have also suffered with anxiety, which you believe began in January 2014, and you consider that the Ice use may have been the cause of such condition.  You informed Mr Simmons that the anxiety attacks happen “almost daily” and can last up to an hour, causing you to seclude yourself by going home or spending time in your car.  When these attacks occur, you cannot breathe and feel dizzy and faint.  You also informed Mr Simmons that your sleep is erratic and you have problems with your memory, although your concentration is stable.  You are tearful weekly and reported some irritability. 

The report of Mr Simmons

41      Mr Simmons performed several tests and came to the view that your verbal IQ score was 76, which puts you in the fifth percentile, meaning that 95 per cent of people do better in verbal tasks.  However, your non-verbal IQ was 96, putting you at the 39th percentile, meaning that 61 per cent of people would do better than you.  He considered that the composite score was 84, and ultimately considered that your verbal skills for intelligence were related as being below average, while your non-verbal skills are in the average range.  He ultimately considered the total score would put you in the below average range of intellectual functioning.

42      Mr Simmons obtained the history that it was Watts who suggested the kidnapping and you went along with it, although you explained you had no idea of the significant consequences that would ensue.  You informed
Mr Simmons that your behaviour was “ridiculous, stupid and silly” and that you do not know what you were thinking of at the time.

43      Ultimately, Mr Simmons stated that you are barely literate, although your non-verbal areas, such as mathematics, is quite good.  It was suggested by
Mr Simmons that you would benefit from a referral for drug and alcohol counselling to assist you with some relapse prevention strategies.  Furthermore, although he noted that the use of drugs was not particularly heavy at the present time, some knowledge about ways to prevent further lapses would be useful, given there has been a previous association with stressful events in your life, and substance abuse.

44      Mr Simmons also suggested that a neuropsychological assessment may be useful to clarify your cognitive difficulties and to determine whether some intervention could be structured which would enable to adopt a more constructive intervention in such matters as literacy.  Mr Simmons also considered that given your general disposition, you tend to follow people, and psychological intervention may help you to be more assertive and provide you with strategies to avoid following the lead of others.  In this sense, it was felt that any future offending was likely to result from being led by others and also by poor decision making.

The report from Dr Shirzada

45      Dr Shirzada confirms that you suffer from sleep apnoea, asthma and depression since 2009.  He also confirmed that you take Seretide and Ventolin for your asthma and Citalopram, 20 milligrams, for Depression.  He notes that if incarcerated, you would need such treatment in prison, together with your CPAP machine to control your sleep apnoea.  Dr Shirzada has also made a Mental Health Plan, wherein he confirms his diagnosis of Depression, where he recommends diagnostic assessment and behavioural interventions. 

The report from the Youth Junction Inc.

46      I also refer to the report from Youth Junction Inc. and note that you were referred to the Youth Community and Law Program (YCLP) by the Sunshine Magistrates’ Court on 26 August 2013, and after initial psycho-social assessment, you were deemed suitable and appointments began the following week.

47      During various assessments, you informed the counsellor that because of your sleep apnoea condition, you have irregular and interrupted sleep which disrupts your ability to stay alert and focussed at work.  Due to your inability to maintain employment, you stated you become extremely unmotivated and depressed.

48      The counsellor records that you have largely attended such appointments, save for two (which you claim were missed because of your sleep apnoea).  During the various appointments, the counsellor believed you came to have an appreciation about your application of obtaining employment and paying outstanding fines and the like.  Unfortunately, when offered two-week’s work experience as a labourer to build on your skills (and also test your motivation), you struggled to get up for work.  When the case manager called your mother, he was advised that you had been asleep for the past two days.

Matters in mitigation of your sentence

49      Your counsel submitted the following matters are important in mitigation of your sentence:

(a)   A plea of guilty was entered at the earliest convenience;

(b)   That you have shown contrition in relation to the offending as evidenced by your comments to Mr Simmons and furthermore, by co-operating in providing a full and frank description of what occurred on the day of the offending to the police;

(c)   At the time of the offending, you were 24 years of age and although the definition of “young offender” extends only to the age of 21 years, your age, immaturity and intellectual functioning at the time of the offending is relevant.  I do note that R v Mills [1998] 4 VR 235, in particular at page 241, poses the proposition that rehabilitation of young offenders is usually far more important than general deterrence. I also refer to Azzopardi v R (2001) 35 VR 43, and in particular to paragraphs [34] – [35] where Redlich JA (with whom Coghlan JA and Macaulay AJA agreed), stated:

“[34]   There are a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration. Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’.  They ‘may lack the degree of insight, Judgment and self-control that is possessed by an adult’.  They may not fully appreciate the nature, seriousness and consequences of their criminal conduct. As Vincent JA explained in Director of Public Prosecutions v SJK & GAS:

‘In the case of young people, to some extent, the law incorporates an acknowledgment of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and real consequences of the offending actions. However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.’”

[35]Secondly, courts ‘recognize the potential for young offenders to be redeemed and rehabilitated’.  This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’.  The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending.  … .”

(d)   That the offending, although “serious”, lacked any formal planning, with no actual risk of harm to anyone, because you were the source and purported victim of the entirely fictitious situation.  Furthermore, the amount of money involved was relatively modest.  In particular, your counsel highlighted, and the prosecution accepted, that Watts was the initiator of the blackmail with you being merely a “follower”.

50      In all the circumstances, your counsel urged me to sentence you by way of the time served, and that a Community-Correction Order be made with various relevant conditions.

51      In distinction, counsel for the prosecution submitted that on his instructions, an immediate custodial term should be imposed, given your previous criminal history.  He pointed out that you have breached previous Community-Based Orders, failed to pay fines and breached suspended sentences.  In this sense, you have not been deterred by previous sentences imposed in the past and there is a specific need to deter you in the circumstances of this matter. 

52      In particular, counsel for the prosecution highlighted the differences between your situation and that of your co-accused, Watts.  Although counsel accepted that Watts was the instigator of the offending, and that she spent five days in custody whereas you spent 40 days in custody, he highlights the following matters:

(a)   At the time of the offending, she was 18 and you were 24 years old;

(b)   That she had a very modest criminal history compared to yours, and had not breached previous Community-Based Orders, or breached suspended sentences.  It was submitted that specific deterrence in this matter is a very strong sentencing factor.

53      The Court arranged for you to be assessed to determine your suitability for a Community-Correction Order.  In a report dated 3 July 2015, you were assessed as being “unsuitable” for such an Order for the following reasons:

“Mr Le-Gallienne attended for his CCO assessment on 03.07.15 as directed.  He was co-operative and maintained compliance throughout the interview process.

The writers found Mr Le-Gallienne unsuitable at the time for a future Community Correction Order on the following bases –

Mr Le-Gallienne has an appalling compliance history with Community Corrections, citing from 2010 to 2011 he was subject to seven fine default orders, two Community-Based Orders (community work only) and another Community-Based Order.  All of these orders were breached by non-compliance and some were varied to give him a second opportunity to comply.  However, he failed to do so.  More recently in 2012 and 2013, Mr Le-Gallienne was subject to two more further Community-Correction Orders – community work only, one of which he breached twice and the other is also in breach.  As Your Honour would be aware, Mr Le-Gallienne is currently in contravention of those Community-Correction Orders (community work only) which are both listed at the Sunshine Magistrates’ Court on 07.07.15.  … .”

54      Furthermore, at the time of the assessment, you were assessed as being at a high risk of re-offending according to the Level of Service Risk Assessment Tool.

55      After the receipt of such report, both parties made further submissions.  On 20 July 2015, counsel for the prosecution submitted that such report demonstrates your “appalling history” of breaching various Orders which have been handed down to you.  Furthermore, counsel for the prosecution noted that you were assessed to be at a high risk of re-offending.

56 Your counsel submitted that notwithstanding the report, it was still open to the Court to sentence you to a Community-Based Order pursuant to s.37 of the Sentencing Act 1991. Although fairly conceding that your history of compliance with such orders was extremely poor, counsel stressed that you have strongly asserted that you will comply with any condition made on such an order. In this respect, your counsel highlighted that not only could there be a supervision order (as part of the conditions added by the Court) but also a judicial monitoring condition which would give even greater impetus to you to comply with the conditions of any order.

57      Your counsel also expressly disclaimed any suggestion that you suffer an “intellectual disability” and that it was necessary for you to be assessed as suitable for a Justice Plan.  I was informed by your counsel that she had discussed such issue with Mr Simmons, the psychologist who had earlier assessed you, and he was of a view that you do not suffer an intellectual disability.

58      Again, your counsel stressed that Watts was the precipitator of the blackmail and although you followed her lead, never really had an appreciation as to the seriousness of the offending.

Conclusion

59      The offence of blackmail is a serious offence, as clearly evidenced by the maximum penalty of 15 years’ imprisonment.  Although I accept the circumstances of your offending was in the lower end of such offence, it must be borne in mind what Hussey must have experienced, over the period of time, seemingly believing that her daughter at one stage, to be at the mercy of drug dealers with the prospect of being tortured.

60      I also accept there was no particular sophisticated planning about the offence and that the demands made by your co-accused, of which you went along with, were made over a number of hours on one day. Furthermore, the amount of money involved was relatively modest.

61      Although I also accept that your co-accused, Watts, was the precipitator of such “scheme”, you went along with it, made the telephone call from the public telephone box and benefited from the money ultimately paid by Hussey.

62      In mitigation, I do accept that your plea of guilty was at the earliest possible time and that you have shown some contrition for your offending.  Furthermore, I do take account of your relative youth and frankness to the police during your record of interview.  Unfortunately, given your prior criminal record and in particular, your breaches of past Community-Correction Orders, breaches of suspended sentences and non-payment of fines, I do not consider that a further Community-Correction Order would be appropriate.

63      It must be remembered that every time a Community-Correction Order has been made in the past, you would have been aware that such an Order was a sentence of the Court, would have been told of the consequences of failing to adhere to the Order, agreed to the terms of such Order, both at the time of making the Order and indeed when being assessed by the appropriate authorities, and being warned many times during the currency of any particular order as to the consequences of non-compliance.  I have no confidence, notwithstanding the very able plea of your counsel, that you would comply with any further Community-Correction Order.

64      I consider that in sentencing you, the following matters are relevant:  Just punishment, general deterrence and in particular, specific deterrence.  To date, various orders have had seemingly little impact on your criminal activities.  I consider your rehabilitation to be problematical, given the seemingly little regard you have shown for orders made against you, your ongoing use of drugs and unfortunately, your inability to hold down a job.

65      In particular, I note that although clearly not relevant as an antecedent, you do intend to plead guilty in relation to offending on 13 January 2015, some two months approximately after the subject offending and eight days after being released on bail after having been remanded since 26 November 2014.

66      I am cognisant that parity in the punishment of co-offenders is a fundamental consideration in sentencing.  In this respect, I note that your co-offender, Watts, who was remanded for five days, was sentenced to a Community-Correction Order for a period of 18 months with various extra conditions involving assessment and treatment for drug use, mental health assessment and treatment, supervision, a residential requirement, and for her to have no contact with you. 

67      Although, as I have recorded, I accept that Watts was the precipitator of the offending, she was only 18 years of age at the time of offending, had relatively minor past antecedents (which involved you), had made significant attempts to rehabilitate herself by enrolling in a TAFE course, being employed on a part-time basis, being actively involved in the supervised bail since her bail  release on 1 December 2014 and her positive attempts by attending various courses and seeking treatment for substance abuse.  I considered her chances of rehabilitation to be reasonably good.

68 In relation to your circumstances, I consider there is disparity between your age and that of Watts and more particularly, there are significant differences between the respective antecedents of Watts compared to the significant prior convictions entered against you and your failure to adhere to the various Community-Correction Orders over time (see generally Joseph v R [2014] VSCA 343 at paragraphs [58] – [79]).

69      I intend to convict you and sentence you to a period of imprisonment where, if released at the completion of the non-parole period, you will be subject to a period of parole which hopefully, will assist you from further re-offending.

70      Accordingly, please be upstanding:

(1)     In relation to the charge, you are convicted and sentenced to a period of imprisonment for 12 months with a non-parole period of six  months.

(2)     I declare that you have served 40 days as pre-sentence detention in relation to these offences, and such period is to be administratively deducted from this sentence as time already served.

(3) Further, pursuant to s 464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth until a sample of sufficient standard is obtained for the placement on the database. I must inform you that if at the time of the request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted

(4) Pursuant to s.6AAA of the Sentencing Act 1991, I declare that save for your plea of guilty, you would have been sentenced to a period of imprisonment of eighteen months with a non-parole period of ten months.

71      Mr Le-Gallienne, you probably have not taken that all in.  No doubt your counsel will explain it to you further.  The long and short of it is, you come to this court with a frightful record, absolutely frightful record about breaching community based orders which are sentences of the court and indeed, when I have to come to give you an appropriate sentence, I have to take that into account.

72      As you probably appreciate, the sentence is 12 months, you must serve six months less the 40 days you have already served and hopefully at the end of that six months or six months less the 40 days, you will be able to get parole.  Hopefully parole will be a good thing for you because you will have some supervision over your activities and try and get you back, hopefully, to some sort of work or something.

73      Also when you are in prison, you get a chance to reflect on what you have done in the past and hopefully get you off ice or drugs altogether.  That would be a very, very positive thing for you.  But you really have to start stopping and taking stock of your life.  You have breached more orders than I have seen in a long time.  You just do not seem to have any understanding of what that means or what that involves.  It keeps going on and as I understand it, from your counsel, it will continue to go on when you go back to the Magistrates' Court.  You have to stop and think about what your life is all about.  Do you understand?

74      Yes, very well.  Does counsel want to say anything?

75      MS MILDENHALL:  No, Your Honour.

76      MR HOWARD:  No, Your Honour.

77      HIS HONOUR:  Yes, take the prisoner.  I will allow the family to briefly approach the dock at this stage, very briefly.

78      MS MILDENHALL:  Thank you, Your Honour.

79      HIS HONOUR:  Yes, very well.

80      MS MILDENHALL:  Your Honour, just one last thing, there are, and I am not sure if I raised it with Your Honour, but there are some custody management issues.

81      HIS HONOUR:  No, you did not raise it with me.

82      MS MILDENHALL:  Thank you.  Perhaps I will raise it with the custody sergeant downstairs, just about the medication and the CPAP machine.  It has been noted on his remand warrant or his - - -

83      HIS HONOUR:  I will certainly perhaps add this as also part of the sentencing remarks.  For the assistance of custodial authorities that in relation to various aspects of the sentence of imprisonment, it is to be noted that the prisoner requires the assistance of a CPAP machine for his sleep apnoea condition and - - -

84      MS MILDENHALL:  He is also currently prescribed some antibiotics.  He has got a chest infection, so if he could be seen by a doctor.

85      HIS HONOUR:  Also for the prisoner to obtain medical attention on his admission to prison, given that he has an ongoing illness and has a requirement of antibiotics.

86      MS MILDENHALL:  Thank you, Your Honour.

87      HIS HONOUR:  Yes, thank you.

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