Director of Public Prosecutions v Riley

[2019] VCC 36

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

AT BALLARAT
CRIMINAL JURISDICTION

CR 18-01492

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK RILEY

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	30 January 2019
CASE MAY BE CITED AS:	DPP v Riley
MEDIUM NEUTRAL CITATION:	[2019] VCC 36

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Stougiannos
For the Accused	Mr M. White

HIS HONOUR: 

1Mark Riley, you have pleaded guilty to one charge of stalking committed between 6 February and 7 February 2018.  You also pleaded guilty to committing this offence whilst you were on bail, a related summary offence.  Prosecution tendered a detailed summary of the offending.  The summary was exhibited and will be retained by the court for purposes of the sentence, but for the moment my following summary will suffice. 

2You were born on 20 November 1985, and at the time of the offending you were 32 years old and moving between short term rental accommodation.  The complainant will be referred to as ‘T’ for reasons of anonymity.  At the time of the offending she was 21 years old.  She was working as a dancer and operating social media profiles as a secondary income.  At the time of the offending, you and the complainant were known to each other.  In early November 2017, she and a friend who was staying with her at her apartment, attended a bar in St Kilda where you served her, as you were working there.

3You gave the complainant your name and phone number.  The complainant and her friend left the bar and went back to the complainant's apartment.  Her friend messaged you from the T's mobile phones asking you to bring them more alcohol, which you did.  You went to the apartment and sat on the bed next to T, which made her feel uncomfortable.  She fell asleep for a short time while you were present in the apartment and when she woke up she asked you to leave.

4After this occasion you messaged her, inviting her to your premises.  She made up excuses initially not to meet you but then decided to do so.  She attended your premises on two occasions where the two of you watched movies and talked.  On another occasion she attended your premises and you made an advance towards her while sitting on the couch.  She pushed you away and left.  This was the last occasion she attended your premises.  You continued to send her text messages and Snapchats.  The contents of these messages included you asking her out, inviting her to your premises, jokes and pictures of food.

5The complainant replied on some occasions but more often ignored your messages.  On one occasion you attended her work place and told her you had a new apartment near her work and if she wanted to stay there after work she was welcome.  After this you sent her a Snapchat which said, "Can you send me a photo of your boobs".  The complainant was angry with you and you then sent a message to apologise, which said "Sorry, I've just always wanted to see them".

6On 6 February 2018, at about 6:00 pm, T received a series of private messages on an Instagram profile from an account unknown to her.  She received 12 private messages which contained details of her name, Medicare number, bank card number and employment details.  The sender claimed to have videos of her using her vibrator in her "Little studio" and knowledge of the complainant's safe code.  After receiving these messages, the complainant blocked the account.  A chain of messages sent from this profile was an annexure to the summary.

7At 9.34 am the following day on the 7th, the complainant received a "Like" and a comment on a photo on Instagram from a different source and 20 private messages from this account.  These messages suggested that police should see her video collection and that "It would be very awkward your mother's cock boy seeing you rubbing your nice pussy".  The complainant then received messages stating, "Will be in touch", and "3,000 to 5,000 seems to be".  The entire chain of messages sent from this profile has been attached as annexure B and these messages form the course of the conduct relied on to establish the stalking charge.

8The account name used the complainant's middle name and her aunt's first name, as well as the first name of the complainant's mother and her surname.  The messages received made the complainant feel unsafe in her home causing her to stay with friends and prevented her from going to work.  She sent a request for help to some of her contacts on Snapchat.  You exploited this cry for help.  You offered to meet and help her.  You told her that you knew someone that was good with computers and who may be able to help her find the person who had hacked into her account.

9On 31 April 2018, Instagram provided details about each of the profiles used which indicated that these accounts were either associated with a phone number that was saved on a contact on one of your phones or that the email address used to create the Instagram account was linked to a mobile number that was used by you to run a massage business.  TPG then provided information that linked the IP addresses used by the Instagram accounts on both days to an apartment in East Melbourne owned by Apartment Stays Melbourne. It was then established that the short-term rental was one at which you were a tenant at the relevant time.

10You were arrested on 19 April 2018, and during the record of interview, you denied being responsible for sending the messages to the complainant.  You claimed you have been running a massage business from La Trobe Street in Melbourne and had employed two females.  You were unable to provide details of those females but stated it was unlikely that they knew the complainant.  You admitted that you had access to the relevant email addresses which had been used to set up the Instagram accounts.

11There was no victim impact statement received but the statement of the complainant, T, describes the effect of your conduct on her work, social and general life.  She described your behaviour as sadistic and I can reasonably infer that she was fearful, traumatised and anxious because of your behaviour.  She stopped working, she moved out of her home out of fear and I take this impact into account.  Stalking is an offence which comes with a maximum of ten years' imprisonment.  The summary offence has a maximum penalty of 30 penalty units or three months' imprisonment.

12Stalking is an offence which has profound impact upon victims of it.  It engenders fear and anxiety and is intended to cause apprehension and to create a power imbalance where the person stalked is subjugated by the loss of safety, security and privacy to the wishes and power-play of the stalker.  It is a sadly prevalent and pernicious offence which has aspects of cruelty and meanness, clearly lacking in any empathy for the subject but focused on the perverse pleasure gained often, as indeed in this case, out of a sense of rejection or entitlement or to punish a rebuff for a relationship which, in your own mind, was on foot, which you had desired but which was not reciprocated at all by the complainant.

13It is an offence that shows immaturity, selfishness and lack of control.  It creates consternation in the community, who looks to the court for protection from such repulsive conduct.  I have read the exchanges contained in the material.  Your messages are in turn offensive and intrusive, threatening at some imagined exposure, promising future contact and including a veiled blackmail for a figure of money to be demanded.

14I take into account your plea of guilty, having followed the chronology of this matter and an explanation for the delay which resides, firstly with the efforts made to deal with this matter in the Magistrates' Court and then the potential delay from e-crime to examine the material and devices involved.  I accept that this was an early plea which will result in a reduction in your sentence.  The complainant was not cross-examined and a Basha enquiry was conducted in order to clarify some relevant issues pertaining to the plea, as was the examination of your phone.

15I take into account your personal circumstances.  You have a prior criminal history.  That history begins in 2003 in Queensland with priors which proceeded into 2005, 2006 and 2009.  These offences are generally dishonesty offences including burglary, a number of thefts, possession of tainted property, and imposition by false representations.  There are also breach of bail offences for which you therefore have a prior for the relevant summary offence for which I am to sentence you.

16The Victorian offences are October 2009, again burglary, thefts and fail to answer bail.  For this last series of offences you were convicted and sentenced to a partially suspended sentence with a relatively short period to serve.  I was also properly informed of post-offence matters of 3 May 2018.  On that occasion you were sentenced to a total effective sentence of 16 months with a nine-month non-parole period.  This sentence was imposed for a large number of obtaining financial advantage by deception, obtain property by deception, thefts, falsification of accounts, making false documents to the prejudice of others and thefts. 

17It was conceded that a term of imprisonment was appropriate in the circumstances of this offending.  That was an appropriate concession.  But it was submitted that the term should not add a significant further period of reclusion beyond that which has been served and which will make parole available to you on 1 February next, with a completion date for the head sentence on 1 August.  Fourteen days by way of pre-sentence detention will be reckoned as days having been already served.  I accept that your plea is a facilitation of the course of justice and an admission of responsibility on your part, inevitable as it was given the objective evidence but nevertheless carrying significant utilitarian value.

18I accept that you have expressed some remorse to the forensic psychologist who provided a report to the court, Mr Ball, and that your plea carries some element of remorse.  The report of Mr Ball made clear that there are no Verdins issue raised in the assessment.  Your mental status examination was broadly unremarkable.  Your mood was stable with no symptoms of depression or anxiety.  There is no cognitive impairment.  Your IQ is in the normal range.  You impressed Mr Ball as a person with capacity to exercise generally good judgment.  Significantly in my view, is your ability, "To plan and execute positive and self-sustaining behaviour" which may be a definition for positive good judgment or an alternate explanation as to how you were able to commit the stalking offences with such cool and calculating manner.

19You described your conduct as a stupid game which was sickening and as a practical joke which was a mistake.  In my view this rationalisation fails to deal with your motivation and the nature of the exchange.  You meet the diagnostic criteria for a gambling disorder and have sustained full remission, with this problem playing no role in the offending.  You presented as high functioning.  You gave a brief history of your family, which again was unremarkable.  Your academic history and stable employment history, primarily in the hospitality industry is to your credit.

20You have had one significant intimate relationship but that ended some years ago.  You have a nine-year old child from that relationship.  It was said your prior offending was explained in the context of your pathological gambling and the isolating effect that this had on your life.  Your entire family resides in Queensland but remains supportive of you and you may relocate north in order to obtain work and be close to your family.  You were a talented soccer player at a national level as a junior.  After your parents divorced, you moved to Melbourne, you withdrew from your family and were further isolated by your sense of shame over your gambling and convictions.

21You have received counselling for your gambling.  Since being in custody you have reconnected with your family.  You have also made contact with your daughter's mother and you hope to reconnect with her in the future.  In Queensland you have family, your child and work available with you, with your mother's partner in labouring work.  I accept that the duration of the offending was of short duration and that your messaging ceased thereafter.  I accept you have used your recent imprisonment usefully by the completion of a number of courses about which completion I was handed certification copies.

22I accept that you have also accessed on a regular basis a gambler's help and financial literacy counselling program since the early days of your reclusion.  This has been voluntary.  I am of the view that your prospects of rehabilitation are reasonably good, despite your record, particularly if you can continue to abstain from gambling.  However, this offending falls outside the insidious effect of gambling upon you and is more related to your interpersonal and social conduct, which on any view in this instance was reprehensible.

23I agree that a term of imprisonment is appropriate. I do not consider 14 days to be appropriate. I will impose a sentence, fix a new non-parole period pursuant to s.14 of the Sentencing Act.  Please stand. 

24On the stalking charge you are convicted and sentenced to nine months' imprisonment.  On the bail offence, you are convicted and sentenced to one month imprisonment, cumulative upon the stalking charge. 

25That makes a total effective sentence of ten months' imprisonment.  I intend to impose a new global head sentence.  I order that seven months of this sentence be cumulative on the head sentence that you are currently serving.

26I declare that you may be eligible for parole after 13 months from 13 May 2018, That leaves a new head sentence in effect of 23 months with a non-parole period of 13 months. A new non-parole period under s.14 of the Sentencing Act from 3 May 2014.  I declare 14 days as pre-sentence detention which will be noted in the court's record.  Your new non-parole period as an effect extended your imprisonment by something like three and a half months or something close to it. 

27But for your plea of guilty, I would have sentenced you to 12 months' imprisonment.  I have signed the disposal order.  Is the impact of that order clear Mr White?

28MR WHITE:  Yes, Your Honour.  My only query is whether Your Honour would be required to declare the entirety of the pre-sentence detention from 13 May last year just out of an abundance of caution.

29HIS HONOUR:  Well, I don't think that I need to do that because - simply because I've said that I have fixed a new non-parole period.  And certainly the time that he has served will certainly be taken into account. 

30MR WHITE:  Yes.

31HIS HONOUR:  He was going to be eligible for parole at least as of 1 February from memory and his sentence expired on 1 August.  This is not a concurrent non-parole period, this is a new non-parole period which simply extends the period that he has to serve before he's entitled to parole by that period.

32MR WHITE:  Yes, Your Honour.  And obviously it's clear that the sentence commences on 13 May 2018.

33HIS HONOUR:  Correct. That will be on the order and I will make sure that it is clear that this sentence extends from 3 May to a non-parole period of 13 months.

34MR WHITE:  Yes, Your Honour.  Thank you.

35HIS HONOUR:  Thank you.  I'll make sure the order reflects the proper time that Mr Riley has served and will enable him ­to have a non-parole period access as the expiration of the new non-parole period.

36MR STOUGIANNOS:  If Your Honour pleases.

37HIS HONOUR:  Mr Riley can be removed.

38OFFENDER:  Thank you, Your Honour.

39HIS HONOUR:  Thank you for your attendance, Mr White, I appreciate it.

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