Director of Public Prosecutions v Rufat

[2022] VCC 1257

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-20-00005

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDRES RUFAT

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2022
DATE OF SENTENCE:	3 August 2022
CASE MAY BE CITED AS:	DPP v RUFAT
MEDIUM NEUTRAL CITATION:	[2022] VCC 1257

REASONS FOR SENTENCE

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Subject:             Criminal Law Sentence

Catchwords:      Blackmail – Lower end of range of offence seriousness – Progress on bail – Application of Bugmy principles

Cases Cited: Bugmy v The Queen 249 CLR 571

Sentence: 18-month Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A McKenry	Office of Public Prosecutions
For the Accused	Mr G Chipkin	Victoria Legal Aid

HIS HONOUR:

1Andres Rufat, on 24 February 2022, you were found guilty by a jury of two charges of blackmail.  The maximum penalty for blackmail is 15 years' imprisonment.  At the plea hearing on 29 July 2022, you also pleaded guilty to one summary charge of committing an indictable offence whilst on bail and one summary charge of contravening a condition of your bail. 

2You have admitted relevant prior convictions, including convictions for crimes of violence. 

Circumstances of Offending

3The circumstances of the blackmail charges are as follows.  You were introduced to your victim, through his son.  The son was an associate of yours and on occasions would communicate with you through his father’s phone.

4During early 2019, you begun communicating directly with the father in relation to what you claimed was money that was owed to you by his son.  The history of this claim involved a car-hire business venture and the purchase of a motor vehicle.  At the time of your offending, the son was in custody for matters unrelated to those the subject of this proceeding.  This explains why you came to contact his father about the perceived debt, rather than the son directly.

Charge 2

5On 13 February 2019 at approximately 2.07 pm, you sent your victim a text message that read as follows:

[omitted] I hope you're well.  My life has completely gone from bad to worse.  I've done the right thing by all of you and got taken for a fool.  I still can't get my head around it.  I've spoken to many people, including the peggers.  I've got an understanding as to what has been done, not only to me but my family.  I can let go of what money has been taken from me but not and I want when it comes to my family.  10,000 fucking dollars [omitted] in fucking 3days.  I'm shore you can appreciated my anger.  I'm only say this once, I want it back in this account by Friday [and then you gave the account number]  Please make it clear that it's not worth the repercussions.  I don't care what he's done to others but he won't get away with doing it to me or my family.  [omitted], I'll even accept 5000 and deal with the rest later.  But please don't take my kindness for weakness.  Please make it happen and you can deal with your son.  Believe me, you don't want others too in jail or out.  Thank you.  Come Friday all goes well, you'll never hear from me again.  Bye

6The bank details that you provided to your victim were linked to an account in your name and that text message forms the basis of Charge 2 on the indictment.

Charge 3

7Turning to Charge 3, on 18 February 2019 at 12.41 pm, your victim received another text message from you that read as follows:

Good afternoon [omitted].  I asked simply and politely to have what had been stolen from me ($10,000) be replaced back into my account.  Your family members have a very long and ugly history of taking, stealing money from the vulnerable, even close family friends.  I've even given your family to repay half, which was taking from my family $5000.  I realise it's not happening.  I'm sorry, I really am, [omitted], but you'll be having people come to pay you a visit and hopefully be able to resort this without any problems.  Take care.

8That is probably, 'Resolved this without any problems,' and that text message forms the basis of Charge 3.

Investigation

9On 5 March 2019, police attended at your address and the mobile phone that had been used to send the messages was located.  The phone number was registered in your name.

Gravity of Offending

10Turning to the gravity of offending.  Your messages were menacing and your reference to the peggers in the first mentioned message carried a specific menace that there was some evidence about.  I accept, however, that your offending as an example of the offence of blackmail is at the lower end in the range of those offences.  Essentially, for the reasons set out by your counsel, at paragraph 26 of his outline to which I will now refer I accept the following. 

11The entirety of the offending was limited to the sending of two text messages and involved a single victim.  There were no explicit threats of violence or harm.  The threats were of very short duration and not persistent.  There was no use of weapons.  No evidence of planning or premeditation.  No physical contact between you and your victim.  Your victim as never actually placed at risk of physical harm. 

12I accept that you held a subjective belief that you were owed the $10,000 by your victim's son and I also accept that your offending is consistent with what would have been the increasing frustration you were experiencing due to that subjective belief as to the debt and that it was impulsive conduct, also consistent with your make-up.  You also cooperated with police and participated in a record of interview where you made admissions to sending the text messages. 

Personal Circumstances

13Turning briefly to your person history and I will not go into your personal history in detail and, again, it was referred to in some detail in your counsel's outline of submissions which was Exhibit 1 on the plea and I accept the contents thereof. 

14You are 51 years of age, born in Australia.  You were 47 years of age at the time of the offending.  Your parents were Mexican and Chilean heritage.  You are the middle child of three boys; older brother Jamie and younger half-brother Jose Ruiz from whom I received a letter in support which was helpful and I accept the contents of that letter. 

15

Your parents separated when you were aged five.  You and your brothers were raised by your mother as a single parent, your father returning to

South America.  I also accept, as  a general principle, the matters advanced by

Mr Ruiz in his letter in relation to the difficulties of growing up with an absent father.  I also accept that growing up you assumed a quasi-caring role for your older brother Jamie who is, I was told, completely blind by his mid-teens and Mr Ruiz also refers to you as an older brother who took on family responsibility.

16You were raised in housing commission flats in the Richmond area and you described it to your counsel as a tough environment and I accept that that is the case.  You had some difficulties in the relationship with your mother growing up that resulted in you leaving home at 13 years of age and you spent a brief period of time homeless but eventually taken in by a friend's family.  It was far from an ideal childhood experience, however.  You were only educated to partway through year 8, I was told. 

17In your late teens you undertook a motor mechanic apprenticeship.  You did not complete that apprenticeship.  You worked on and off over the years as a truck driver and forklift driver, principally on the wharfs assisting with the transportation and loading of cargo from ships.  I was told you have been unemployed since 2013. 

18You have two daughters, one aged 26 from whom I also received a letter, that is Shana Rufat and I accept the contents of that letter, and a young daughter aged five.  I also received a letter from your youngest daughter's mother which was a letter in support of you as well.  All three of the letters I have referred to make it clear that your five-year-old daughter Amani is a protective factor for you in the sense that she is a source of motivation for you to stay on the right track in your life.  When I use that phrase 'protective factor', that is really legal speak and something that is referred to when we are talking about the prosects of rehabilitation. 

19But really, essentially I accept what you have said to your counsel, that she is your world, she is everything to you and I accept what emerges through the three letters I have referred to, that Amani is at the forefront of your thoughts and is, that being the case, essential to your prospects for rehabilitation and I find that your prospects for rehabilitation are reasonable in those circumstances. 

20You live with your mother in South Yarra and I was told that you had been previously estranged for about 16 years from your mother but the relationship with your mother has improved since your release from custody in July 2019. 

Other Matters in Mitigation

21

Since July 2019, you have been on bail and I take into account the fact that you have been on bail for a lengthy period of time in relation to this matter.  I also take into account that you have served 24 days pre-sentence detention in relation to this matter.  And I say take that into account because I have determined that I will exceed that your counsel's submission for a

Community Corrections Order is the appropriate disposition in this matter, having regard to all the sentencing factors to, in part, be taken into account that period in custody that you observed. 

22I will also take into account the difficult upbringing to which I have referred which engages the Bugmy v The Queen (“Bugmy”)[1]  principle to a degree in this sense that those difficulties and to some rise the absent father, the waywardness from the age of 13 and the pressure of the home environment in your circumstances are all matters which have shaped you and shaped your responses over your growth and it is through that lens that I assess your moral culpability for this offending. 

[1]Bugmy v The Queen (“Bugmy”) 249 CLR 571

23I also take into account what I have accepted as the lower end in terms of gravity of this particular offence.  I have had regard to general deterrence, the need to impose a sentence which denounces your conduct.  I have taken into account the impact upon the victim and I have taken into account the need for specific deterrence to some degree in your case, although, as I have indicated, I am satisfied that your progress over recent years, your expression of remorse and understanding that you went about pursuing the believed debt the wrong way and that you have learnt your lesson, and in particular your relationship with your young daughter, that you have some reasonable prospects of rehabilitation. 

Sentence

24That being the case, I sentence you as follows, Mr Rufat.  I am going to impose an aggregate sentence across the two charges on the indictment of which you were found guilty but also embracing the relevant summary offences as all of these matters have arisen out of the same circumstances. 

25

In relation not the charges before me, I sentence you to an

18-month Community Corrections Order with conviction. 

26Pursuant to that Community Corrections Order, you are to perform 75 hours of unpaid community work.  Up to 25 hours of treatment conditions engagement can be credited towards those unpaid community work hours.  You will be subject to supervision.  You will also be subject to a condition of drug assessment and treatment as directed, mental health assessment and treatment as directed.  The Offending Behaviour Programs as directed, including anger management if appropriate or a parenting program if available and appropriate. 

27Now, do you consent, Mr Rufat, to entering that Community Corrections Order?

28OFFENDER:  Yes, I do.

29HIS HONOUR:  All right.  Well, I must tell you that if you contravene that order either by non-compliance or by reoffending, then you will be brought back before me and one of the options to me is to resentence you and it should be apparent to you that there is a degree of leniency in the sentence that I have imposed upon you.  That leniency is due in in part to the length of time since the commission of this offence and what I consider to be some progress in your life in that time. 

30But also, I accept what has been said by your elder daughter, by your younger brother and by the mother of your youngest child, that you are genuine in your desire to be a good father and be in the life of your youngest daughter.  So in that sense, at this point of time for this court appearance for you, notwithstanding your history but it raises some concerns, but can be regarded as a turning point and I have some reasonable satisfaction that you won't be back here again. 

31But the order that you are going to be placed on has those conditions and they are conditions that must be met, because if they are not, I will have options to me if you are brought back for contravention and it will be difficult for me to continue to accept that you are at a turning point if you do not take this opportunity. 

32All right, so those documents are going to be prepared.  Now, there is a forfeiture order in relation to the phone.  Is that right? 

33MR McKENRY:  That's correct, Your Honour.

34HIS HONOUR:  Yes, I make that forfeiture order.  Yes, I have got that here.  Yes, I make the forfeiture order in respect of the black Alcatel mobile phone and there is a SIM card reference on the schedule of that order that I will sign. 

35Now, I don't think - there's no other orders sought, Mr McKenry?

36MR McKENRY:  No other orders sought, Your Honour.  The only point I'd make is, Your Honour accredited Mr Rufat with 24 days during the plea.  We noted it was 32.

37HIS HONOUR:  That's right, it was 32, yes.  And I haven't declared those days but you're quite right, Mr McKenry, to bring that to my attention.  Imposing the sentence I'll impose, Mr Rufat, I've taken into account the fact that you have served time in custody in relation to this matter.  Just to be clear, I haven't declare it because I considered that a straight Community Corrections Order without a custodial component was appropriate for the reasons I've stated. 

38All right, well, thank you.  Mr Rufat, those documents will be forwarded to you by your solicitor and for your signature but you've consented to them and I've accepted your verbal consent of acknowledgement.  That's binding in relation to that order.  So you'll have the obligation then to report within two days, I think, to Corrections but you'll get a copy of that order and I'm sure Mr Chipkin or his instructor will be able to explain more to you if you need further explanation. 

39All right, is there anything else?

40MR McKENRY:  No, Your Honour.  As Your Honour pleases. 

41MR CHIPKIN:  Your Honour, just to confirm that the aggregate sentence covers both the two indictable offences as well as the two related summary offences, being the (indistinct) offences.

42HIS HONOUR:  Yes, yes.  Yes, because they all arise out of the same matter.

43MR CHIPKIN:  Yes, thank you, Your Honour.

44HIS HONOUR:  All right, thank you.  All right, yes, adjourn the court. 

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