Director of Public Prosecutions v O'Dwyer

[2016] VCC 1084

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00491

DIRECTOR OF PUBLIC PROSECUTIONS

v

HELEN O'DWYER

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2016
DATE OF SENTENCE:	29 July 2016
CASE MAY BE CITED AS:	DPP v O'Dwyer
MEDIUM NEUTRAL CITATION:	[2016] VCC 1084

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Hammill	Office of Public Prosecutions
For the Accused	Mr I. Slater	Luke Slater Lawyers

Pages 1 - 6

 

 

HIS HONOUR:

1Helen O'Dwyer, for a number of years you have used the professional services of the victim as a tax agent.  In 2015 you again had your tax return prepared by him.  He notified you of an anticipated return. 

2You are a single mother working as an administrator.  You have a mortgage and general expenses, including those of a teenage son with special needs.  You do not have much money.  You have in recent times developed a problem with daily or excessive use of alcohol. 

3While affected by alcohol over a two hour period on 18 August 2015 you sent messages, many messages, to the victim saying that the tax return was not enough.  Ultimately you told him that if he did not pay you $900,000 you would reveal to his wife that he had made sexual advances upon you.

4After a period of toing and froing he went to the police.  On your arrest you admitted what you had done.  The prosecution have indicted you on a charge of blackmail. 

5The gravity of the offence was said not to be high, but you should not be in any doubt that your offending was serious.  It was wrong and had the potential to cause great harm.  The amount of money sought was large.  However the events were not protracted, occurred over a number of hours.  That said, there were many text messages and you were persistent.  However, you quickly came to your senses and expressed remorse after your arrest during your interview.

6Again, that said, for some reason I cannot quite fathom you ran a committal and put to the victim the various allegations that were contained in the text messages.  But this morning you were successful in an application for a sentence indication.  Thus I told you on your plea of guilty to blackmail I would not send you to prison.

7You are now 50 and prior to this matter were without blemish.  You come from a loving family and a have repaid your good upbringing by being a decent, hardworking woman who helps your elderly father, as you did with your mother until her death in 2008.

8Your teenage son has difficulties and requires added attention and effort from you.  Your work history is particularly impressive.  You are entitled to call on your previous good character in asking for a merciful sentence.  Counsel submitted a community corrections order was the appropriate sentence and the prosecution agreed and so do I.

9The principles guiding judges in sentencing as set out in the Court of Appeal decision of R v Boulton are applicable in this case.  A community corrections order can achieve all the sentencing considerations of denunciation, deterrence and rehabilitation.  The assessment for a community corrections order indicates that you are a low risk to re-offend and suitable for a community corrections order. 

10The crime of blackmail can cause great distress.  It did cause an adverse impact on the victim as he set out in his victim impact statement.  I do not discount that matter at all.

11In the end a community corrections order with an unpaid work component and treatment for alcohol problems is the right sentence in my view.  Thus I intend to a impose a community corrections order that lasts for 18 months and will have 150 hours of unpaid community work and an alcohol treatment component.  The details of that community corrections order will be explained to you shortly.

12The question is whether the community corrections order should be with conviction or not. I have considered s.8 of the Sentencing Act and the submissions put by Mr Slater and by the Crown.  In the end the gravity of the offence, the amount sought and the threat made require condemnation.  The effect of a conviction on you at your age with your employment which will continue is not - those impacts are not so serious as to allow me to impose a community corrections order without conviction.  The community corrections order will be with conviction.

13I am not required as I read it to tell you pursuant to s.6AAA what I would have imposed as a sentence had you pleaded not guilty to the offence and been found guilty of it, but I do intend to tell you anyway.  Had you pleaded not guilty to this offence and been found guilty of it, which was inevitable, then it would have resulted in a sentence of nine months' imprisonment combined with a two-year community corrections order.

14Thus your plea of guilty has resulted in a lesser sentence and a sentence of a different kind.  I will just produce the documents that govern the community corrections order.  They will be explained to you and if you sign them it will bring the matter to an end.

15MS HAMMILL:  Your Honour, there are two ancillary orders that are sought.  I have raised them with my friend.  The first is an order for the taking of a forensic sample and the second is a disposal order in respect of the mobile phone used to send the messages.

16HIS HONOUR:  Why do you need to dispose of the phone?

17MS HAMMILL:  Your Honour, on the basis that it is tainted property as it is property used in the commission of the offence.

18HIS HONOUR:  What do you say?

19MR SLATER:  Your Honour, in these circumstances I would submit that it is not appropriate to do so.

20HIS HONOUR:  Sure.  What about the forensic sample?

21MR SLATER:  Your Honour, I would further submit that it is not necessary in the circumstances of this case for a forensic sample, particularly in relation to a plea of guilty and her low risk of re-offending.

22HIS HONOUR:  Thank you.  Anything to say about the forensic sample?  I will get to those matters shortly.  The community corrections order commences today, 29 July 2016, and ends on 28 January 2018.  It is 18 months.  The mandatory terms that apply to everyone on a community corrections order are the following and they apply to you.

23You must not commit any other offence for which you could be imprisoned during the time that the order is in force.  Almost every offence is punishable by imprisonment so the way forward is not to commit any offence, just do as you have been doing for the last 50 years, as it were, or last 35 years of your adult life.

24This is another condition.  You must comply with any obligation requirement under the Sentencing Regulations.  I am told that means when you go to the Office of Corrections they will need to take a photograph of you to be able to identify you.  Just cooperate with all of that.  You must report to and receive visits from the Office of Corrections.  You must report to the Community Corrections Centre at Shepparton.  That is at 307-331 Wyndham Street, Shepparton, within two clear working days of this order starting, so go on Monday or Tuesday.

25You must let the community corrections officer know within two clear working days if you change your job or your address and you must not leave Victoria without first getting permission to do so, and you must obey all lawful instructions and directions from the Office of Corrections, so keep them informed of what you are doing.

26That conditions that apply to you are 150 hours of unpaid community work over the 18 months as directed by the Office of Corrections.  That is not optional.  That is turning up every time and staying until it is required.  You will have to do that where they ask you to do it and you may have to do it in teams where people are not as committed to rehabilitating as no doubt you are, but you have to persevere and do it.

27Do each and every hour and get it done as quickly as you can and that will be the end of it.  The other thing is you must undergo assessment and treatment for alcohol abuse and dependency.  They will set that up.  It may require a number of sessions.  They will determine how many it does.

28But you have got to understand that alcohol can get the better of you.  If you sign that, that will be the community corrections order.  Before Mr Slater comes down with that there are two applications that have been - sorry?

29MS HAMMILL:  Sorry, Your Honour, perhaps I misheard, but was Your Honour intending to impose supervision as a condition?

30HIS HONOUR:  No.

31MS HAMMILL:  Yes, Your Honour.

32HIS HONOUR:  Just remain there for a moment, Mr Slater.  There are two applications made.  One is that you provide a forensic sample.  That is a scraping from your mouth so that your DNA can be kept on a database.  I have considered that application, albeit briefly.

33The factors that I have considered are the seriousness of the offence, your past and likely future and whether it is in the interests of justice that you provide a sample that will go on a database.  In the end I am not persuaded that the state requires you to provide a forensic sample.

34It is an invasion of your body and that is a matter, albeit it would be simply a mouth swab, it is not something that I consider is necessary in the interests of justice in this particular case and I decline to make the order sought pursuant to s.464ZF.

35In respect of the application that your forfeit the mobile phone that you used to engage in the sending of text messages, that is a more troubling matter.  They are expensive items for people who have not got much money.  However it has been some time since you have had it, and in the end because it contains things that I do not think are - could be difficult for the victim and for you, I am persuaded that the phone should be forfeited to the state for them to deal with, so I will make that order.

36Mr Slater has got a document.  Have a look at it, sign it and if you do I will sign it and it brings the matter to an end.  Is there anything further required?

37MR SLATER:  No, sir.

38MS HAMMILL:  No, Your Honour.

39HIS HONOUR:  There is a copy of that.  It will be made.  I thank counsel for their considerable assistance.

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