Director of Public Prosecutions v Pettitt

[2018] VCC 1667

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01292

DIRECTOR OF PUBLIC PROSECUTIONS

v

RODNEY PETTITT

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2018
DATE OF SENTENCE:	11 October 2018
CASE MAY BE CITED AS:	DPP v Pettitt
MEDIUM NEUTRAL CITATION:	[2018] VCC 1667

REASONS FOR SENTENCE
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Subject: Blackmail x2
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: Good Behaviour for 2 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Hogan
For the Accused	Ms C. Foot

HIS HONOUR: 

1Rodney Pettitt, you have pleaded guilty to two charges of blackmail.  The maximum penalty for each of these offences is 15 years' imprisonment.  The offences occurred between 8 January 2017 and 20 January 2017 (Charge 1), and between 13 September 2017 and 20 September 2017 (Charge 2).  

2The circumstances of your offending are summarised in a prosecution summary dated 26 September 2018.  That document was read in open court by the learned prosecutor, Ms Hogan, and your counsel, Ms Foot, accepted that it was accurate and forms a proper basis upon which I can proceed to pass sentence upon you.  It is not necessary in those circumstances that I here repeat that which is there set out, except in an abbreviated form. 

3You had formed a sexual relationship with the victim, who was a person that you had known from your days in school.  Both of you attended a special school and you reconnected many years later.  During the course of that relationship you had taken photographs of the victim in a compromising position.  Each of the charges relates to a threat by you to publish those photographs if she did not pay you what is described as petrol money, being the cost of petrol to you to drive to and from her home.

4Blackmail is a very serious offence, as you can no doubt gather from the maximum sentence imposed by the Parliament of this state of 15 years' imprisonment.  However, it must be said, as I have already indicated in argument, that your offending in terms of the range of the ways that blackmail can be carried out must fall right at the very bottom end of the scale for the offence of blackmail.  Your offending I think was very unsophisticated and, having regard to the fact that threats were made in the text messaging, you were bound to be caught.  That said, your offending did have a severe impact upon the victim who was not unnaturally very scared that you would carry out your threat to release photographs on social media and to friends of her in a compromising position. 

5You have pleaded guilty to each of the charges and that is to your credit.  By your pleas of guilty you have accepted responsibility for the offending and you have saved the time and cost of a trial and you have saved the victim from the need to come to the court and give evidence against you in a way which would have been very embarrassing for her.  Because you have pleaded guilty the law requires that I take that into account and reduce the sentence that I would have otherwise imposed had this matter proceeded to trial before a jury and you were convicted. 

6I have received into evidence a great deal of material relating to you, a lot of which has been well summarised by your counsel, Ms Foot, in her written submissions made on your behalf.  You were born on 24 March 1988 and you are now 30 years of age.  You have previously been married.  In mid-2016 you and your then wife separated and after that you commenced drinking heavily.  Towards the end of that year, you reconnected with the victim in this matter.  You were arrested and charged with these offences on 26 October of last year and you immediately made full admissions to the police and you made reference at that time to your excessive alcohol consumption.  You also told police that you had not been complying with your prescribed medication but you did express remorse for your conduct and the way you had made your victim feel.  I accept that you are remorseful for the offending that you have engaged in.

7Up until the time of this offending you had led an unblemished life.  Your life seems to have somewhat gone off the rails after your separation from your wife in mid-2016.  There is a subsequent matter which was dealt with at the Frankston Magistrates' Court on 17 November.  At that time you pleaded guilty to charges of persistent breach of an intervention order, unlawful assault and threat to distribute an intimate image, the latter being conduct similar to that which you appeared before this court for.  That offending related to your former wife.  You are presently on a community corrections order relating to that subsequent offending which will extend for a period of 12 months.  The order includes conditions for supervision, community work hours, mental health assessment and treatment. 

8You are an only child.  Your parents separated when you were about ten years of age and this had, which I accept, a significant impact upon you as a child.  Your father re-partnered and ultimately ceased contact with you.  You grew up in Cranbourne and Mount Waverley and you had significant upheavals in your early childhood and adolescence due to the family breakdown and relocation.  You were diagnosed at an early age with a mild intellectual disability.  This diagnosis occurred in the context of behavioural concerns and difficulties with basic tasks and limited reading and writing abilities.  You have been assessed by a psychologist and obtained a full scale IQ of 57 and a performance IQ of 64, indicative of mild intellectual disability.

9You have a strong employment history notwithstanding your intellectual difficulties.  The immediate period after school you worked as a general labourer and in supermarkets, but you were severely assaulted and injured in circumstances not of your making in 2008.  This has had a significant impact on your life. 

10You have had a number of relationships which have produced children.  You had a relationship between 2006 and 2010 of which there are two children, a boy aged six and another boy aged three.  You have unsupervised contact with those children.  Both are said to have special needs,. the eldest being diagnosed with autism and the younger lad with attention deficit hyperactivity disorder.  You were in a married relationship from February 2016 and there is one child of that relationship, a girl aged three.  You have not seen her for in excess of 12 months.  You are now in a relationship with Ms Roberts, who has provided a written reference to the court in which she speaks highly of you and of the fact that you, despite this offending, continue to have the support and encouragement of a number of friends and family.

11The incident in November 2008 in which you were severely injured in circumstances where you intervened to protect a friend from injury resulted in you receiving the Pride of Australia medal for outstanding bravery and the perpetrator of that crime was dealt with in the Supreme Court of Queensland. 

12You have had a substance abuse problem with alcohol from an early age.  You do not have issues with other illicit substances.  I am told that you have made a decision to stop drinking, having realised that it gets you into trouble, and I am told and accept that you have not consumed alcohol for about six months.  You did at one stage develop a gambling addiction funded by a payout which you received from Victims of Crime which was entirely lost. 

13I received a report from Ms Carla Lechner, a clinical psychologist well known in this court for her opinions.  She reports that you suffer from post-traumatic stress disorder, anxiety and depression, the post-traumatic stress disorder dating back to the assault upon you in November 2008.  She opined that you currently suffer from a major depressive disorder and residual post-trauma symptoms which results in high levels of anxiety.  She also thought that you present with symptoms of alcohol use disorder in early remission.  In recent times you have commenced to consult with Ms Lorraine Nicholson, a psychologist, and you are administered the anti-depressant Zoloft, apparently with some success in that it seems to be improving your mental health. 

14In submissions Ms Foot, relying upon a number of factors relating to you, including the application of what are known in the courts as Verdins principles, asked that I not impose a custodial disposition but that I give consideration to the making of a community corrections order with a justice plan, having regard to your mild intellectual disability.  And that disposition is accepted by the prosecution.

15The application of Verdins principles in a case like this means that where a person is intellectually impaired to an extent that they do not fully appreciate the consequences of their actions, sentences imposed by the courts in those circumstances do not have to fully serve as a deterrent but the court has regard to the fact that in the particular circumstances the moral culpability for the actions of the offender are somewhat reduced.  This is such a case. 

16Given that you are already in the criminal justice system and serving a community corrections order for subsequent offending, with that order having a little way to go, I am of the view that it is appropriate in a case such as this to impose a disposition that will see you involved with the criminal justice system but only on a minimal basis.  I propose to release you on an undertaking on each charge to attend before the court in two years' time if called upon to do so, that you are to be of good behaviour in the meantime.  That means that you must not commit any offence punishable by a term of imprisonment for the period of the next two years.  And that you observe a special condition that you continue to attend upon Ms Lorraine Nicholson, psychologist, and obey her lawful instructions. 

17The adjourned undertaking will be made without conviction. Section 8 of the Sentencing Act requires the court, in deciding whether or nottre://ftr/?label="CC 9-1"?datetime="20181011120121"?Data="c7401d76" to impose a conviction or non-conviction, to take into account certain matters.  Firstly, the nature of the offence and here whilst the nature of the offence of blackmail is serious, I have made clear my views that your offending falls right at the very bottom of the level of seriousness for that kind of offence.  The court must also take into account the character and past history of the offender.  As I have said, up until the time of this offending you have led an unblemished life.  The third thing that I must take into account is the impact of the recording of a conviction on your economic and social wellbeing or on your employment prospects.  Whilst you have a fairly good employment record, in my view you have enough to contend with having regard to your intellectual difficulties, and saddling you with a conviction for each of these offences and the circumstances in which they occurred in my view is not warranted.  For these reasons you will be released upon an undertaking to be of good behaviour for a period of two years to attend this court if called upon to do so on conditions that you are of good behaviour and that you attend upon Ms Nicholson, psychologist, and obey her lawful instructions.

18Pursuant to s.6AAA of the Sentencing Act, I indicate that had it not been for your pleas of guilty to the charges I would have imposed, with conviction, a community corrections order for a period of two years with conditions.

19MS HOGAN:  As Your Honour pleases.

20MS FOOT:  As Your Honour pleases.

21HIS HONOUR:  Are there any questions arising out of that?

22MS FOOT:  I just raise one matter, Your Honour.  The condition about attending, continuing to attend upon Ms Nicholson.  I'm just concerned if perhaps the psychological treater changes for Mr Pettitt at any stage during the two years, perhaps if that condition could be worded so that - for example, if he -
Ms Nicholson referred him on to someone more specialised in --

23HIS HONOUR:  That would be - he would have to comply with her lawful instructions and that would be an instruction he'd have to comply with.

24MS FOOT:  Yes, Your Honour.  Thank you. 

25HIS HONOUR:  Ms Hogan, do you have any questions?

26MS HOGAN:  Nothing arising, Your Honour.  Did Your Honour make a decision in respect of the forensic sample order?

27HIS HONOUR:  Yes.  The prosecution has sought the making of a forensic sample order which was not opposed for the reasons stated in the order.  I am going to make that order, and that means, Mr Pettitt, that I think it is within 28 days you will have to attend - what is the police station, Ms Hogan?

28UNIDENTIFIED SPEAKER:  Lilydale.

29HIS HONOUR:  You will have to attend at Lilydale police station and furnish a forensic sample from your body, which is nothing more than the taking of a swab from the inside of your mouth.  It's a bit like sucking on a Chupa Chup.  Do you understand?

30OFFENDER:  Yes, Your Honour.

31HIS HONOUR:  If you don't comply with that request then a policeman can use reasonable force to take it from you.  Do you understand?

32OFFENDER:  Yes, Your Honour.

33HIS HONOUR:  Very well.  Ms Foot will explain it to you fully.  Yes, just come out of the dock if you would and take a seat behind Ms Foot please.

(Bond signed and acknowledged.)

34HIS HONOUR:  Now, Mr Pettitt, you need to understand that you must comply with the terms of the undertaking that you've just signed.  You must be of good behaviour for the period of the next two years and that means if you commit any offence punishable by a term of imprisonment, you'll be brought back before me and dealt with, do you understand?

35OFFENDER:  Yes, Your Honour.

36HIS HONOUR:  I will re-sentence you.  And you must comply with all of the lawful directions of Ms Nicholson, you understand that?

37OFFENDER:  Yes, Your Honour.

38HIS HONOUR:  Very well.  On the rising of the court you are free to leave.

39OFFENDER:  Thank you, Your Honour.

40HIS HONOUR:  Adjourn the court please Wayne.

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